2008-829, Michelle Hemenway v. Edmund J. Hemenway, Jr.

The defendant, Edmund J. Hemenway, Jr., appeals a final

orally), for the defendant. Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

Wendy Guthro, of Burlington, Massachusetts, on the brief, for the plaintiff. Simoneau and David L. Nixon on the brief, and Mr. Simoneau orally), and Nixon, Raiche, Vogelman, Barry & Slawsky, P.A., of Manchester (Kirk C. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. MICHELLE HEMENWAY

No. 2008-829 editorial errors in order that corrections may be made before the opinion goes Derry Family Division Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the family division denied. This appeal followed. p. 2 husband pending further hearing. The husband moved to reconsider, which

awarded custody of the children to the wife, and prohibited visitation with the

ammunition during the pendency of this order.” Finally, the family division licenses,” and prohibited the husband from “purchasing . . . any firearms or used incident to the abuse,” “all concealed weapons permits and hunting

may have been used, intended to be used, threatened to be used, or could be

matter jurisdiction over the petition. contends that RSA chapter 173-B, by its plain language, provided subject threatening telephone calls and wrote her a threatening letter. She also

husband to “relinquish all deadly weapons as defined in RSA 625:11, V which converting or damaging her property. The family division also ordered the within a certain distance of her, going to her home or workplace, or taking,

Boston Regional Airport and, while she was in New Hampshire, made

threatened her at her parents’ house in Dracut, Massachusetts.

contacting her absent special authorization by the family division, coming

had personal jurisdiction over the husband because he flew to Manchesterabsent personal jurisdiction. Alternatively, she argues that the family division order that does not impose affirmative obligations on a defendant is valid even 2

abusive and threatened” her and their children, and, on August 2, 2008, he

husband from threatening or abusing his wife or her family members,

argues that we should follow other jurisdictions and hold that a protective and under the Due Process Clause of the Federal Constitution. The wife personal jurisdiction over him under our long-arm statute, RSA 510:4 (1997), Massachusetts and Florida. He also contends that the family division lacked

criminal threatening, to wit, on July 16, 2008, in Florida, he “became verbally against him. In her petition, the wife alleged that he committed two acts of 173-B in the Derry Family Division and obtained a temporary restraining order abuse. The family division issued a final protective order prohibiting the that the two incidents constituted criminal threatening and therefore domestic jurisdiction. The family division found that it had jurisdiction, and concluded

jurisdiction over him because the incidents alleged in the petition occurred in The husband argues that the family division lacked subject matter

August, the wife filed a domestic violence petition pursuant to RSA chapter

appear but instead through counsel filed a special appearance to contest

temporary restraining order against her husband in Massachusetts. In late

The family division held a hearing on the petition. The husband did not

At the beginning of August 2008, the wife applied for, and received, a

settlement in Florida on May 14, 2009. children and moved to New Hampshire. They reached a mediated divorce the family division has “jurisdiction over domestic violence cases.”

subject matter jurisdiction to the family division. RSA 17 p. 3 3-B:2, IV states that where possible, we ascribe the plain and ordinary meanings to words used.”

avoid an absurd or unjust result.”

unambiguous, we need not look beyond [it] for further indications of legislative

The plain language of RSA 17 p. 3 3-B:2, IV and RSA 490-D:2, VI granted statutory construction, “we first examine the language found in the statute and Pine Hunters’ Club, 155 N.H. 486, 488 (2007) (quotation omitted).

“We construe all parts of a statute together to effectuate its overall purpose and Appeal of Astro Spectacular, 1 p. 3 38 N.H. 298, 300 (1994) (quotation omitted). of the legislation nor add words which the lawmakers did not see fit to include.” conduct of persons or the status of things.”

Id. (quotation omitted). “Courts can neither ignore the plain language

(brackets and quotation omitted). “When a statute’s language is plain and Appeal of Garrison Place state.”, 159 N.H. __, __ (decided December 16, 2009) over abuse that occurs outside of New Hampshire, it would have done so court’s jurisdictional geographic territory . . . may the case be tried in that concept that only when an offense is committed within the boundaries of the which delineates the jurisdiction of the family division. When undertaking Code. over the wife’s petition, we interpret RSA chapter 17 p. 3 3-B and RSA 490-D:2, adjudicate the type of controversy involved in the action.” To determine whether the family division had subject matter jurisdiction

v. Fisette, 146 N.H. 480, 48 p. 3 3 (2001). time during the proceeding, including on appeal,” and may not waive it. and the type of relief sought; the extent to which a court can rule on the Close 328, 332 (2009). A party may challenge subject matter jurisdiction “at any jurisdiction, a court order is void. In the Matter of Goulart & Goulart, 158 N.H. West v. State, 797 A.2d 1278, 1282 (Md. 2002). Absent subject matter

legislature intended to grant subject matter jurisdiction to the family division P. p. 3 3d 1194 (Wash. 2003). By contrast, “[t]erritorial jurisdiction describes the County, 30 P.3d 529, 532 (Wash. Ct. App. 2001), aff’d on other grounds, 65 173-B:1 also incorporates the territorial jurisdiction restrictions of the Criminal Shoop v. Kittitas 2009). In other words, “[s]ubject matter jurisdiction is a tribunal’s authority to

Subject matter jurisdiction is “[j]urisdiction over the nature of the case

Code); RSA 6 p. 3 31:4 (defining criminal threatening). He contends that, had the See RSA 625:4 (2007) (outlining territorial jurisdiction of Criminal

uses the definition of criminal threatening found in the Criminal Code, RSA subject matter jurisdiction. Specifically, he argues that, because RSA 17 p. 3 3-B:1 We first consider the husband’s argument that the family division lacked

I. Subject Matter Jurisdiction violence to immediate and effective police protection and judicial relief.”

p. 4 the rules of evidence are relaxed during proceedings under RSA chapter 173-B.

jurisdiction in which she is sheltered.” seeks a place of refuge must be able to engage the protections of the law of the unit for all family or household members by entitling victims of domestic B was enacted with the intent to preserve and protect the safety of the family the territorial jurisdiction limitations of the Criminal Code. “RSA chapter 173in a protective order, but not necessarily a criminal prosecution. As a result, victim from further abuse, and not to punish the abuser, such a finding results [his or her] safety.” Because the purpose of such proceedings is to protect the

of the federal Due Process Clause must be satisfied.” logic of that statutory provision is unassailable: a victim of domestic abuse who

and criminal prosecutions, we find that RSA chapter 173-B does not include

preponderance of evidence that “the defendant represents a credible threat to

Our long-arm statute provides that New Hampshire courts have personal

long-arm statute must authorize such jurisdiction. Second, the requirements where [he or she] temporarily resides.” RSA 173-B:2, II. “The fundamental test to determine whether the wife has met her burden. Id. “First, the State’s avoid further abuse” may “commence proceedings . . . in the county or district Enters., 156 N.H. 556, 557 (2007) (quotation omitted). We utilize a two-part [husband].” Moreover, a person who “has left the household or premises to sufficient to establish personal jurisdiction over the defendant.” chapter 173-B, and the distinction between proceedings under that chapter Chick v. C & F personal jurisdiction. “[T]he plaintiff bears the burden of demonstrating facts We next consider the husband’s argument that the family division lacked to bring about a cessation of abuse” where the plaintiff demonstrates by a II. Personal Jurisdiction

we decline to do so. See Lone Pine Hunters’ Club, 155 N.H. at 488. limitations of the Criminal Code would lead to unjust and absurd results, and See RSA 173-B:3, IV. To read RSA 173-B:1 to incorporate the territorial

county or district where the [wife or husband] resides, alleging abuse by the criminal threatening found in RSA 631:4. In light of the purpose of RSA subject matter jurisdiction because RSA 173-B:1 incorporates the definition of

RSA 173-B:5, I, permits the family division to “grant such relief as is necessary McNair v. McNair, 151 N.H. 343, 351 (2004) (quotations omitted). Accordingly,

person may seek relief pursuant to RSA 173-B:5 by filing a petition, in the protective orders under RSA 173-B:4”). RSA 173-B:3, I, provides that “[a]ny We disagree with the husband’s argument that the family division lacked concurrent jurisdiction with the superior and district courts to enter temporary 2005).

RSA 173-B, relating to protection of persons from domestic violence except for 490-D:2, VI (Supp. 2009) (granting exclusive jurisdiction over “[a]ctions under instances of abuse not contained in the domestic violence petition.

the family division correctly prohibited the wife from introducing additional coming to New Hampshire, the family division struck that allegation. Indeed, she alleged in the petition that friends warned her that her husband was the supplemental or amended petition.”

sufficient to establish personal jurisdiction over the defendant.” that, on the record before us, the wife has failed to “demonstrate facts contained in the petition and considered by the family division, we conclude

abuse on allegations not included in the petition. the inquiry.” Id. denied, 128 S. Ct. 2088 (2008). However, this “conclusion . . . does not end substantial justice.” States Constitution.” Caplan v. Donovan, 879 N.E.2d 117, 122 (Mass.), cert. the maintenance of the suit does not offend traditional notions of fair play and reference to threatening telephone calls or letters in New Hampshire. Although if the defendant is provided an opportunity prior to the hearing to respond to minimum contacts standard required by the due process clause of the United [husband] if the [husband] has minimum contacts with the forum, such that and the plaintiff may amend or supplement her domestic violence petition “only exercise of personal jurisdiction over the [husband] would fall within the the factual allegations against him in advance of the hearing on the petition,” N.H. at p. 5 557 (quotation omitted). Therefore, we need not consider “whether the

N.H. 241, 246 (2007). Because it would be error to rely on allegations not the Matter of Aldrich & Gauthier, 1 p. 5 56 N.H. 33, 35 (2007); Comer v. Tracey, 156

admit evidence on unnoticed charges,” and cannot base a finding of domestic

the husband threatened her in Florida and Massachusetts, and made no Process Clause, a court may exercise personal jurisdiction over a non-resident brackets omitted). Under RSA 173-B:3, the defendant must “be supplied with

South v. McCabe, 1 p. 5 56 N.H. 797, 799 (2008) (quotation and

“[T]he allegations in a domestic violence petition set the contours of the

under the Federal Due Process Clause.” statute as permitting the exercise of jurisdiction to the extent permissible

while she was in New Hampshire. The wife, in her petition, alleged only that of the acts enumerated above.” RSA p. 5 510:4, I. “Pursuant to the Federal Due Airport, made threatening telephone calls and mailed her a threatening letter situated in this state . . . as to any cause of action arising from or growing out personal jurisdiction because the husband flew to Manchester-Boston Regional state, or has the ownership, use, or possession of any real or personal property We first address the wife’s argument that the family division had

N.H. 62 p. 5 5, 628 (2006) (quotation omitted). “[W]e construe the State’s long-arm

transacts any business within the state, commits a tortious act within this jurisdiction over a non-resident defendant “who, in person or through an agent, requirements of due process. p. 6 barrier if the form and nature of the substituted service meet the there, even though the other spouse is absent. There is no constitutional

alter within its own borders the marriage status of the spouse domiciled

domiciliaries and its large interest in the institution of marriage, can deal. Thus it is plain that each state, by virtue of its command over its domicile in such case, . . . the injured citizen would be without redress. problems in the field of domestic relations with which the state must if application could not be made to the tribunals of the complainant’s therefore, fail if a divorce were sought in the State of the defendant; and

enforcement of marital responsibilities are but a few of commanding

where no dissolution is permitted. The complaining party would,

importance. Protection of offspring, property interests, and the within its borders. The marriage relation creates problems of large social of the State, a dissolution may be granted, may have removed to a State rightful and legitimate concern in the marital status of persons domiciled may be dissolved. One of the parties guilty of acts for which, by the law between its own citizens shall be created, and the causes for which it

numerous exercises of state power. Each state as a sovereign has a

right to prescribe the conditions upon which the marriage relation

Domicil creates a relationship to the state which is adequate for

Supreme Court determined that: and carried on within its territory. The State, for example, has absolute Similarly, in Williams v. North Carolina, 317 U.S. 287, 298-99 (1942), the

affirmative action by a defendant is valid even without personal jurisdiction. the conditions on which proceedings affecting them may be commenced status and capacities of all its inhabitants involves authority to prescribe The jurisdiction which every State possesses, to determine the civil applied an exception to the personal jurisdiction requirement. States Supreme Court stated that: other grounds by Shaffer v. Heitner, 433 U.S. 186, 205-06 (1975), the United In Pennoyer v. Neff, 95 U.S. 714, 734-35 (1877), overruled in part on

1128, 1130-31 (Fla. Dist. Ct. App. 2006). W.L., 820 A.2d 506, 514-16 (Del. Fam. Ct. 2003); Beker v. Johnson, 937 So. 2d See, e.g., Caplan, 879 N.E.2d at 119; Shah, 875 A.2d at 942. But see T.L. v.

These courts reason that an order that prohibits abuse but does not require Caplan, 879 N.E.2d at 119; Bartsch v. Bartsch, 636 N.W.2d 3, 6 (Iowa 2001).

order granted without personal jurisdiction over a non-resident defendant have Courts in several states that have considered the validity of a protective p. 7 7

State.”

from a [New Hampshire] court.”

“the defendant from engaging in behavior already specifically outlawed.” judicial relief for domestic violence victims.” (quotation omitted)). BRODERICK, C.J., and DALIANIS and CONBOY, JJ., concurred. violence through equal enforcement of the criminal laws and the provision of

trial court to modify its order in accordance with the opinion. to [New Hampshire] and, in the event of a new incident of abuse, seek an order order requires affirmative action from the defendant. We remand to allow the extent that it protects the wife from abuse, but reverse to the extent that the Accordingly, we affirm the family division’s final protective order to the

victim with the very protection the law specifically allows,” while preventing (2004) (“It is the public policy of this state to prevent and deter domestic McNair, 151 N.H. at 351; see also State v. Kidder, 150 N.H. 600, 603

at odds with the purpose of RSA chapter 1 p. 7 73-B and New Hampshire’s “strong

abuse occurred . . . or, alternatively, to wait for the abuser to follow the victim with two “unpalatable choices . . . either to . . . return to the State in which the marital or parental status.” 8 p. 7 75 A.2d at 939. A contrary ruling would present a domestic violence victim

A protective order “prohibit[s] acts of domestic violence,” providing “the

19 (Ky. Ct. App. 2006). A.2d at 942; Bartsch, 636 N.W.2d at 10; Spencer v. Spencer, 191 S.W.3d 14, jurisdiction over the defendant. Caplan, 8 p. 7 79 N.E.2d at 124; see Shah, 875 process rights of an absent spouse over whom it does not have jurisdiction.” any personal obligations on a defendant” is valid even without personal divorce to a spouse domiciled within that State without violating the due N.W.2d at 10. Accordingly, an order that prohibits abuse but does not “impose over all of the parties is not established,” and “a State court may grant a Caplan, 879 N.E.2d at 123; see also Bartsch, 636 order focuses on the plaintiff’s protected status rather than [the plaintiff’s] serves a role analogous to custody or marital determinations, except that the plaintiff and orders him to have no contact with and to stay away from her . . . A protective order which “prohibits the defendant from abusing the

requirements). custody determinations are also frequently exempt from personal jurisdiction Caplan, 8 p. 7 79 N.E.2d at 122; see Bartsch, 636 N.W.2d at 9 (noting that child

of the relationship between multiple parties even where personal jurisdiction (Citations omitted.) Thus, “a court may adjudicate matters involving the status