2009-231, In the Matter of Dawn M. O'Neil and Eugene E. O'Neil, Jr.

The respondent, Eugene E. O’Neil, Jr., challenges

Charles A. Russell, of Concord, by brief, for the respondent. to press. Errors may be reported by E-mail at the following address: petitioner. Wiggin & Nourie, P.A., of Manchester (Gail E. Bakis on the brief), for the

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF DAWN M. O'NEIL AND EUGENE E. O'NEIL, JR.

No. 2009-231 editorial errors in order that corrections may be made before the opinion goes Concord 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 profanity toward opposing counsel, and his reluctance to apologize when

p. 2 conduct observed and reported in the family division such as his direction of

housing the offices of the Merrimack County Attorney.

family division noted its concern with the respondent’s conduct, including one person ordinarily carried two cups of coffee into the courthouse. The and was required to deliver the pleadings to court security. such as the cars they drove, where they parked, their license plates, and that proceed no further than the security desk at the entrance to the courthouse, allowed to be in the building when he had pleadings to file. He was allowed to observed him walking around the outside of the court and a nearby building female employee “who sits at the front desk over there.” Security officers then “of the girl who works upstairs,” and stated that he knew, by name, another

superior court’s staff, and asserted that he could identify details about them

minutes after the hearing concluded. The order also limited where he was

inappropriate. He also described his familiarity with several members of the incidents referenced by the superior court, but denied that his actions were prior to its scheduled time, and he was required to leave no later than fifteen order in November 2007. At the hearing, the respondent acknowledged the respondent was allowed to enter the courthouse no earlier than fifteen minutes could be in the building when he had a hearing to attend. Specifically, the entered the courthouse, asked her name, shook her hand, and stood so close past. On another occasion, he followed the same employee after she had asked why she had parked in a different location that day than she had in the

hearing before it. The family division held a hearing relative to the restraining by the superior court would remain in effect in the family division pending a 2007, the Family Division (for a hearing, or he had pleadings to file. The order limited the time frame he Carbon, J.) ruled that the restraining order issued order when it transferred the case to the family division. On September 4, Specifically, it was reported that he had approached one court employee and The superior court had not yet held a hearing relative to the sua sponte

from entering the courthouse or its curtilage unless his presence was required entered an order sua sponte restraining the respondent, pending a hearing, respondent had engaged in conduct that court staff found unsettling. Based upon these incidents, the Trial Court (, C.J.), on August 8,

was

basis. In August 2007, court staff and security officers reported that the pro se for much of this period, visited the courthouse on almost a daily While the divorce was pending in superior court, the respondent, who

newly created Concord Family Division. (Supp. 2009). In August, the superior court transferred the case to the then security officers at the desk.

p. 3 the courthouse lobby and file the document with the

involuntarily admitted to the New Hampshire Hospital on an emergency basis.

Concord District Courthouse.

required to file a pleading, in which case he may enter the matters in which he is a litigant, or unless he is property unless he is present for a hearing on one of

made to a police officer familiar with the case, the officer had the respondent ended up hurt or dead.” Based upon similar threats the respondent allegedly The respondent also allegedly asked the agent how he “would feel if someone

pattern of rude and aggressive behavior while in the potential threat to himself and others. This follows a Hampshire State Hospital on the basis that he is a

Concord District Court/Family Division building and

Courts. That office, in turn, notified the family division, which on December

O’Neil has been involuntarily committed at the New

Mr. O’Neil shall be prohibited from entering the

“going out alone,” that the domestic violence protective order was merely “a everything and [he was] going to go out the window,” that he would not be might include court officials and staff, notified the Administrative Office of the respondent stated “something to the effect that ‘they’ ha[d] taken away

in the New Hampshire Judicial System. Further, Mr.

Accordingly, pending a hearing on this matter,

the petitioner’s counsel who, apparently believing that the scope of the threats reportedly threatened to harm himself and others. According to the agent, the

to be threatening to any person involved with his cases insurance agent which could reasonably be construed Respondent . . . made statements at the office of his The Court has been informed that the

Subsequently, the insurance agent communicated the alleged threats to had apparently insured. When the agent refused to provide it, the respondent his insurance agent, requesting information regarding a car that the petitioner See RSA 135-C:27 (2005). court found troubling. In December 2007, the respondent allegedly contacted

Meanwhile, the respondent continued to engage in conduct the trial

2007, however, subject to future review. admonished by the trial court to do so. It lifted the order on November 26, recusal in a particular case.

p. 4 safety and security of the public is not the basis for

its public building. Taking such action to protect the

ensure the safety and protection of all persons using conduct, the Court is within its inherent authority to courthouse because of an individual’s belligerent

additional security has been required at the

risk of harm to self and/or others, and when

involuntarily admitted to the state hospital based upon made inferring threats of harm, when persons are persons, including its staff. When statements are

to cancel payroll for all employees; (3) had entered DTI’s bank and unlawfully manage DTI.

trustee sold DTI pursuant to a bankruptcy court order. however, filed a petition for bankruptcy, and, ultimately, the bankruptcy occurred. The family division adopted the recommendation. The respondent, 4 trial judge to ensure safety and security for all

otherwise harassing its employees; (2) had ordered DTI’s payroll administrator the superior court granted the petitioner’s motion to appoint a receiver to

recommended that DTI be sold and operated by the receiver until a sale courthouse premises. Furthermore, it is the duty of a

secure when entering and conducting business on to ensure that all members of the public feel safe and

premises, telling its employees that the receiver was no longer in control, and owned and was employed by, and the marital home. Early in the proceedings, that, after filing bankruptcy, the respondent: (1) had been entering DTI’s Prior to the sale, the receiver moved for a restraining order, asserting

After the divorce was transferred to the family division, the receiver

December 10, 2007, the Court has inherent authority

assets, Deployment Technologies, Inc. (DTI), a company the respondent solely Further issues arose in the divorce related to two substantial marital disqualify, reasoning:

authority to issue orders such as that issued on

under RSA chapter 173-B or chapter 458. The trial court denied the motion to petition. He also asserted that there was no statutory basis for the orders both the September 4 and the December 10 restraining orders without a sworn

As to the broader issue of whether the Court has

moved to disqualify the presiding judge upon the basis that she had issued Thereafter, the respondent, who by then was represented by counsel, the maximum amount allowable by law,” but otherwise denied the motions. p. 5 division modified the wage assignment to garnish the respondent’s wages “to

appointment violated RSA 458-B:4 and 15 U.S.C. § 1673(b). The family

petitioner’s counsel was disqualified from serving in that capacity, and that the the family division lacked jurisdiction to appoint a commissioner, that the moved to reconsider the court’s appointment of a commissioner, arguing that

the limits on garnishment under RSA 458-B:4 and 15 U.S.C. § 1673. He also

his alimony obligation and strike the wage assignment, raising for the first time

through foreclosure.

in accordance with the support orders. The respondent then moved to modify commissioner with power to endorse the paychecks and allocate the payments liquidating his paychecks from DTI,” and appointed the petitioner’s counsel a

assignment. through wage assignment, and requested that the receiver implement the awarded the petitioner temporary alimony of $3,500 per month to be paid 31, 2008. The holder of a second mortgage later acquired the marital home DTI was, ultimately, sold, and his employment with DTI terminated on March paychecks from DTI pursuant to the commission, the respondent’s interest in While the record reflects that counsel for the petitioner endorsed three

his alimony obligation, restrained him “from cashing, depositing or otherwise

continue the issuance of his paycheck and the current wage assignments.”

respondent had consistently failed to pay the mortgage, the family division

the receiver’s home.

In March 2008, the family division found the respondent in contempt of

agreeing to “immediately sign[] and return[] to [DTI] all documents required to in the bankruptcy court with the holder of the mortgage and the petitioner, on the mortgage. In February 2008, the respondent entered into a stipulation obligated the respondent to pay the mortgage on the property. After the As of January 8, 2008, there was an arrearage of approximately $16,000

for DTI began to garnish only the amount it could lawfully garnish. 2009); 15 U.S.C. § 1673(b) (2006). In January 2008, the payroll administrator could be garnished under state and federal law. the receiver, entering the receiver’s property, or coming within a quarter mile of See RSA 458-B:4, IV (Supp. The amount of the wage assignment, however, exceeded the amount that prohibiting the respondent from,

With respect to the marital residence, the temporary support order

contacting its management, employees, bank, or payroll service, and contacting

harassing the receiver. After a hearing, the family division entered an order withdrawn money from the account of a subsidiary of DTI; and (4) had been proceedings before it.

p. 6 each argument in turn. the family division erred in denying his disqualification motions. We address family division’s grant of jurisdiction is the necessary power to control the

to

fault under RSA 458:7 or awards of temporary and permanent alimony; and (4) the powers of a court of equity.” RSA 490-D:3 (Supp. 2009). Inherent in the within its grant of subject matter jurisdiction, the family division “shall have “[p]etitions for divorce.” RSA 490-D:2, I (Supp. 2009). As to cases falling

whether the trial court has jurisdiction in this case is a question of law subject

assignment; (3) the evidence failed to support the family division’s findings of appointing a commissioner violated federal and state limitations on wage statutory interpretation was question of law subject to de novo review). Comm’n approve the sale of DTI; (2) the wage assignment order and the order power conferred by statute to decide cases in certain discrete areas, including, 157 N.H. 729, 731 (2008) (jurisdictional challenge turning on 2003), cert. denied, 542 U.S. 903 (2004); cf. Robinson v. N.H. Real Estate de novo review. See Skwira v. United States, 344 F.3d 64, 72 (1st Cir.

inherent power to impose sanctions). The ultimate determination as to Emerson v. Town of Stratford, 139 N.H. 629, 631 (1995) (district courts have

jurisdiction to issue the restraining orders, to appoint a commissioner, and to jurisdiction. The family division is a court of limited jurisdiction, with exclusive divorce. We address first the respondent’s challenges to the family division’s assigned a marital master to preside over the final hearing on the merits of the

alimony of $2,300 per month for a period of five years. This appeal ensued.

On appeal, the respondent argues that: (1) the family division lacked

10, 2007 restraining orders. The family division denied the motions, but II

V (2004). As part of the final decree, the trial court awarded the petitioner treatment as seriously to injure health or endanger reason. See RSA 458:7, III, (Foley, M.) to grant a divorce on the fault grounds of extreme cruelty and Division (Gordon, J.) adopted the recommendations of the Marital Master After a final hearing, consisting of five days of testimony, the Family

in addition to the motion to disqualify based on the September 4 and December to disqualify the presiding family division judge or otherwise reassign the case, Throughout the proceedings, the respondent filed at least three motions

p. 7 did not sufficiently develop the argument to warrant appellate review. or RSA chapter 173-B. Because the persons entitled to protection under those may only be issued under a court’s equity powers or pursuant to RSA 458:16 argues that restraining orders of this sort are “strictly equitable in nature,” and

argues that the trial court deprived him of due process in issuing the orders, he

management and employees, its bank, and the receiver. The respondent

for restraining orders issued under RSA 458:16 (2004). To the extent he

issue the December 18, 2007 restraining order limiting his contact with DTI, its

such limitations are reasonably necessary to ensure the security of the court. limits upon a party’s access to the court where the trial court determines that argument that the trial court erred in failing to comply with the requirements restraining orders pursuant to its inherent power, we reject the respondent’s

The respondent next argues that the family division lacked jurisdiction to

its job of administering justice.” State v. Blackmer, 149 N.H. 47, 49 (2003). court is a power absolutely necessary for a court to function effectively and do See

its facilities and its staff necessarily includes the power to place reasonable members of the public who use its facilities. Because the trial court issued the September 4 and December 10, 2007

cause in an atmosphere of safety, decorum, and fairness.” authority to limit the wearing of firearms in the courtroom). Article III functions”); LaFrance, 124 N.H. at 182 (trial judges have inherent protect their jurisdiction from conduct which impairs their ability to carry out courts “have both the inherent power and the constitutional obligation to Cf. Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986) (federal district participants, the actions of officers of the court and the environment of the

We conclude that the trial court’s inherent power to secure the safety of to safeguard the security of its judicial and administrative staff, and of 143 N.H. 128, 135 (1998).

disputes is to ensure that all parties have the opportunity to advance their “An integral part of any court’s duty to administer justice and fairly adjudicate

“The power of the judiciary to control its own proceedings, the conduct of

with the family division that it had inherent power to issue restraining orders to issue the September 4 and December 10, 2007 restraining orders. We agree The respondent first contends that the family division lacked jurisdiction

division’s subject matter jurisdiction over the divorce pursuant to RSA 490-

the orders garnishing his wages from DTI and appointing a commissioner, are remedy at law.

conclude that the respondent’s challenges to the merits of that order, and of include the power to restrain unwanted contact in the absence of an adequate

power to grant the motion. include the power to issue a restraining order, the family division had the jurisdiction over the receivership, and because the powers of a court of equity

jurisdiction over receiverships under RSA 490-D:2. power, the commission here was created to enforce support orders issued in Regardless of whether the appointment of a commissioner is an equitable receivership, we conclude that it had jurisdiction to appoint a commissioner. order the sale of DTI. We conclude that the issue is moot. Likewise, we judicial branch family division.” RSA 490- p. 8 D:3. The powers of a court of equity The respondent also challenges the jurisdiction of the family division to of a court of equity in cases where subject matter jurisdiction lies with the the family division lacks a general grant of equitable powers, it has “the powers C

458:16-a (2004). was interfering with the receivership. Because the family division had or controlled by the respondent that were subject to distribution under RSA

receivership issued by the superior court, even without a specific grant of

For the same reason that the family division had jurisdiction over the

equitable,

the order pursuant to RSA 490- p. 8 D:3. Although the respondent is correct that

In moving for the restraining order, the receiver claimed the respondent part of the divorce to manage and determine the viability of businesses owned

jurisdiction over the divorce necessarily included the ancillary order of Pursuant to its equity powers under RSA 490-D:3, the family division’s receivership remained in superior court after the transfer to the family division.

see Eastman v. Bank, 58 N.H. 421, 422 (1878), jurisdiction over the

respondent’s contention that, merely because the power to appoint a receiver is Accordingly, the receivership was ancillary to the divorce, and we reject the authority for the restraining order, we conclude that it had jurisdiction to issue See Bursey v. Town of Hudson, 143 N.H. 42, 45 (1998).

In this case, the receivership was established by the superior court as

See State v. Simone, 151 N.H. 328, 331 (2004).

Even assuming that the family division lacked specific statutory

contends that it lacked jurisdiction to issue the order. order, and because the family division lacks general equity jurisdiction, he unlawfully garnished might have an equitable remedy against the creditor. p. 9 opinion as to whether, in an appropriate case, a party whose wages have been wage assignment and appointment of a commissioner are moot. We express no

the sale of, and the termination of his employment with, DTI. unlawfully garnished wages, we conclude that his arguments challenging the

court-ordered support obligation. as an enforcement mechanism for support orders, it in no way restricts a U.S.C. § 1673, as adopted by RSA 458-B:4, limits the use of wage garnishment

assignments,

serving in that role, we conclude that the commission effectively ended upon the respondent has failed to establish that he is entitled to a credit for and 15 U.S.C. § 1673, and that the petitioner’s counsel was disqualified from RSA 458-B:4 and 15 U.S.C. § 1673, the commission has since terminated, and appointment of a commissioner to allocate his DTI wages violated RSA 458-B:4 Because the trial court modified the wage assignment to conform with

[DTI] all documents required to continue the . . . current wage assignments.” amounts that were unlawfully garnished. Indeed, we have noted that while 15 2008, the respondent voluntarily agreed to “immediately sign[] and return[] to (E.D. Mich. 1984). The record in this case establishes that, as of February 25, 1974); Bache Halsey Stuart Shields Inc. v. Killop, 589 F. Supp. 390, 394-95

see, e.g., Western v. Hodgson, 494 F.2d 379, 382-83 (4th Cir. the sale, those issues have become academic. Supp. 1051, 1058 (M.D. Tenn. 1989), or to apply to voluntary wage

family division had jurisdiction to order the sale, or otherwise erred by ordering v. Roling, 233 Fed. Appx. 587, 590 (8th Cir. 2007); Burris v. Mahaney, 716 F. 15 U.S.C. § 1673 so as not to provide a private right of action, see, e.g., Colbert Willitts, 137 N.H. 67, 69-70 (1993). Moreover, federal courts have construed

have violated RSA 458-B:4 and 15 U.S.C. § 1673, he is entitled to a credit for because the wage assignment order and the commissioner appointment may The respondent cites no authority for his contention that, merely

pursuant to an order of the bankruptcy court. Thus, regardless of whether the

brought the issue to the attention of the family division, it modified the order to under RSA 458-B:4 and 15 U.S.C. § 1673(b), the record reflects that, when he wages from DTI violated federal and state limitations on wage assignment With respect to the respondent’s argument that the garnishment of his

DTI was, ultimately, sold by the trustee in the respondent’s bankruptcy

Assoc. of Counties v. State of N.H., 158 N.H. 284, 292 (2009). controversy because issues involved have become academic or dead.” N.H. moot. “Generally a matter is moot when it no longer presents a justiciable officer lacked impartiality. p. 10 otherwise issued rulings that were adverse, does not establish that the judicial

orders restraining his access to the court and contact with third parties, and

the presiding judge was biased. Merely because the family division issued

factual findings. Accordingly, we must assume that the record supports the family division’s

DALIANIS and DUGGAN, JJ., concurred. commissioner were such that a disinterested person would have believed that orders, the alimony and wage assignment orders, and the order appointing a Affirmed. contends that the circumstances surrounding the issuance of the restraining reasonable person, not the judge, would question his or her impartiality). See id. at 268 (whether appearance of impropriety exists turns upon whether a required to provide transcript of all evidence relevant to such ruling). reasonable person would have questioned the impartiality of the trial court. denied, 538 U.S. 1014 (2003). Upon this record, we cannot conclude that a

through expert testimony. say, absent a transcript, that the petitioner was compelled to prove fault

was biased and should have granted his motions to disqualify. Specifically, he Finally, the respondent argues that the presiding family division judge

appeal), 15(3) (moving party challenging evidentiary support for a ruling V

relative to temporary alimony. N.H. 551, 554 (2004).

legally inconsistent with its findings of fault or awards of alimony. Nor can we Nothing in either the family division’s final decree or temporary orders is

See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

to ensure all portions of record necessary to decide issues are provided on

however, to supply transcripts of either the final hearing or the hearings

RSA 458:7, V, and that she failed to demonstrate her need for alimony or his establishing that he seriously injured her health or endangered her reason, see respondent contends that the petitioner failed to submit expert evidence and permanent alimony, see RSA 458:19 (Supp. 2009). Specifically, the its findings of fact relative to fault, see RSA 458:7, and its awards of temporary The respondent next argues that the family division lacked support for