2010-555 In the Matter of Lisa McArdle and Patrick McArdle

Lisa McArdle, by brief, pro

No. 2010-555

Conway Family Division

papers and put them in a bag. Conway Family Division (Albee relationship. He told her that the notes had upset him. She picked up the CONBOY, J. The defendant, Patrick McArdle, appeals an order of the consisted of notes and an email that the plaintiff had written about the parties’ kitchen, yelled at the plaintiff, and threw some papers at her. The papers the parties’ home with their children and a friend. The defendant entered the were living together in Madison. On that day, the plaintiff was in the kitchen of the parties had been married for twenty-three years, had four children, and The trial court could have found the following facts. As of June 8, 2010,

The Law Offices of Kurt D. DeVylder, PLLC

affirm. order to the plaintiff, Lisa McArdle. See RSA 173-B:5, I(a) (Supp. 2010). We

on the brief), for the defendant.

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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 basis that she had not attested to the factual allegations. See p. 2 The defendant objected to the plaintiff’s motion to amend the petition on 2

petition was not accompanied by an affidavit attesting to the facts under oath. during the incident of 6/8/2010 which lasted more than 3 hours, concluding that the defendant had committed criminal threatening, see his hand through a window, breaking his finger. The motion to amend the Following the hearing, the trial court granted the plaintiff’s petition, marriage, during an argument between the parties, the defendant had thrust the back of their son’s car, damaging the car; and (3) at some point in their sheetrock; (2) in the summer of 2009, the defendant had thrown a large rock at over a three-foot staging and portable bathrooms, and smashing holes in defendant had admitted to “flip[ing] out in a rage type thing” at work, pushing moved to amend the petition with allegations of three prior incidents: (1) the The day before the hearing on the domestic violence petition, the plaintiff

pushing over 3-f[oo]t high staging at work, and most recently throwing a large stone through the rear window of his son’s car, The defendant has a history of angry, destructive behavior such as

further found: following the plaintiff from room to room inside the home.” The trial court repeatedly demanding she turn over papers while holding a propane torch and her in fear of imminent physical contact through his physical conduct by plaintiff’s safety. The trial court found that the defendant “purposely placed 631:4, I(a) (2007 & Supp. 2010), and presented a credible threat to the

facts alleged at the commencement of the hearing. court addressed the defendant’s objection by having the plaintiff attest to the verified by affidavit, or are already contained in the court record.”). The trial 1.26 (“The court will not hear any motion based upon facts unless the facts are

the defendant in which she described the propane torch incident. responded. The next day, the plaintiff filed a domestic violence petition against locked himself in a bathroom. The plaintiff then called the Madison police, who After the papers were burned, the defendant did not say anything and

agreed, the plaintiff gave him the papers, and he burned them in the stove. suggested burning the papers in the wood stove in the home. The defendant escalated throughout the incident. The plaintiff called her counselor, who testified that the defendant was distraught and angry and that his anger the plaintiff from room to room, carrying the propane torch. The plaintiff later back to him. She refused. They continued to argue as the defendant followed room carrying an unlit propane torch. He demanded that she give the papers year-old daughter, saying good night to her, when the defendant entered the Later that evening, the plaintiff was in the bedroom of the parties’ eleven- p. 3 3

Under Family Division Rule 1.2, the court may waive the application of any at the hearing, and then to consider those facts in ruling on the petition. court to permit the plaintiff to attest to the facts alleged in her motion to amend We first address the defendant’s contention that it was error for the trial

interpretation of a statute de Protection of Persons from Domestic Violence. We review the trial court’s Resolution of this case requires us to interpret RSA chapter 17 p. 3 3-B,

violence to immediate and effective police protection and judicial relief.” Walker B:1, I (Supp. 2010). of the family unit for all family members by entitling victims of domestic “such conduct constitutes a credible threat to the plaintiff’s safety.” RSA 17 p. 3 3– The purpose of RSA chapter 173-B “is to preserve and protect the safety criminal threatening as defined in RSA 631:4; and (2) a determination that attempted commission of one or more of several criminal acts, including I (Supp. 2010). “Abuse” is defined as having two elements: (1) commission or are clearly untenable or unreasonable to the prejudice of a party’s case. State such relief as is necessary to bring about a cessation of abuse.” RSA 173–B:5, unsustainable exercise of discretion standard and reverse only if the rulings abuse of the plaintiff by a preponderance of the evidence, the court shall grant We review challenges to a trial court’s evidentiary rulings under our filing a petition . . . alleging abuse by the defendant.” “Upon a showing of too remote in time. Pursuant to RSA 173-B:3, I (Supp. 2010), “[a]ny person may seek relief . . . by protection upon such evidence, and considering evidence of incidents that were v. Walker, 158 N.H. 602, 605 (2009) (quotation, citation, and ellipsis omitted). evidence of which he did not have proper notice, basing its final order of On appeal, the defendant argues that the trial court erred by admitting

v. Forbes, 157 N.H. 570, 572 (2008).

might have said nor add words that it did not see fit to include. Id. Dalton, 15 p. 3 3 N.H. 75, 78 (2005). We will neither consider what the legislature face, its meaning is not subject to modification. Dalton Hydro v. Town of meanings to the words used. Id. When the language of a statute is clear on its language of the statute, and, where possible, we ascribe the plain and ordinary the words of the statute considered as a whole. Id in his hand, angry and very distraught demanding the papers.. We first examine the (2005). We are the final arbiter of the intent of the legislature as expressed in eleven-year-old child’s bedroom . . . with the propane torch held up This fear is validated by the fact that the defendant entered the novo. Kenison v. Dubois, 152 N.H. 448, 451 causing the plaintiff to be frightened for herself and her children.

the defendant’s anger escalated more and more as time went on p. 4 In the Matter of Aldrich & Gauthier done prior to the hearing so that the defendant has an opportunity to respond.” supplement or amend the petition to modify the facts alleged, this, too, must be be supplied in advance of the hearing on the petition. Should the need arise to 4 “Under the plain terms of the statute, facts alleged against the defendant must motion to amend were unverified, he did not have proper notice of them. The defendant also argues that, because the allegations contained in the

plaintiff later attests to the facts at the hearing on the petition. attestation requirement for the petition form under circumstances where the it was the intent of the legislature to prohibit the court from waiving the RSA 173-B:3, IV. We cannot conclude, based on this statutory language, that

statement on this petition will subject me to criminal penalties.

plaintiff’s motion to amend. exercise its discretion in admitting and considering the facts alleged in the The defendant relies on Ossipee Auto Parts v. Ossipee Planning Board the defendant’s case. Thus, we hold that the trial court did not unsustainably trial court’s ruling was clearly untenable or unreasonable to the prejudice of of justice may require. Under these circumstances, we do not believe that the Family Division Rule 1.2 to waive its rules when good cause and the interests at the start of the hearing. Moreover, the Family Division is empowered under Second, the plaintiff attested to the factual allegations in the motion to amend the best of my knowledge. I understand that making a false day before the hearing and, therefore, received notice of the subject allegations. words: I swear that the foregoing information is true and correct to reasons. First, here, the defendant received a copy of the motion to amend the se proceedings. All such petitions shall contain the following on a motion. However, Ossipee petitions and for relief under this chapter designed to facilitate pro is distinguishable from this case for two Superior Court Rule 57, consider facts not verified by an affidavit when ruling The clerks of the district and superior courts shall supply forms for 134 N.H. 401 (1991), in which we held that the superior court could not, under

swear that the foregoing information is true and correct to the best of my , 156 N.H. 33, 34-35 (2007). B:3, IV as follows: “All such petitions shall contain the following words: I In support of his argument, the defendant selectively quotes RSA 173-

attestation requirement. defendant argues that the trial court was prohibited by law from waiving the rule, except where prohibited by law, as good cause and justice require. The p. 5 “abuse” does not require the defendant to have committed a violent act. See he had been violent toward the plaintiff. However, the statutory definition of credible threat to the plaintiff because no evidence was introduced to show that The defendant also argues that the trial court erred in finding him to be a

torch. room to room, repeatedly demanding the papers, while holding a propane was in fear of physical contact from the defendant when he followed her from over 3-f[oo]t high staging at work” supported its conclusion that the plaintiff throwing a large stone through the rear window of his son’s car [and] pushing court found that the defendant’s “history of angry, destructive behavior such as in fear of imminent bodily injury or physical contact.” RSA 631:4, I(a). The [b]y physical conduct, the person purposely places or attempts to place another criminal threatening, see to the plaintiff’s safety. “A person is guilty of criminal threatening when . . . RSA 631:4, and, as outlined above, the evidence defendant does not dispute on appeal, that he committed the offense of the defendant had committed criminal threatening and posed a credible threat [defendant] and the parties’ relationship.” The trial court found, and the Further, the prior incidents were relevant to the trial court’s finding that dispose of upsetting notes which the [plaintiff] had written about the starting device, should not be taken for more than what it was: a request to that “[t]he incident of June 8, 2010, though admittedly involving an unlit firethreat to the plaintiff’s safety. Id. We disagree with the defendant’s contention enumerated offenses, including criminal threatening, and to pose a credible RSA 173-B:1, I. It requires the defendant to have committed one of the

domestic violence petition. June 8, 2010 incident, which occurred the day before the plaintiff filed the was “angry and very distraught.” Thus, the court’s ruling was based on the demanding the papers with the propane torch raised; and (4) the defendant confrontation; (3) the defendant entered his eleven-year-old child’s bedroom than three hours; (2) the defendant’s anger escalated during the course of the credible threat to the plaintiff’s safety: (1) the confrontation lasted for more the finding that the defendant’s conduct on June 8, 2010, constituted a incidents. We disagree. The following facts, cited by the trial court, support safety as based “largely” and relying “heavily” on the allegations of prior court’s decision that the defendant posed a credible threat to the plaintiff’s insufficient to show current abuse). The defendant characterizes the trial petition and a months-old threat to make the plaintiff’s life “a living hell” were two incidents of physical abuse occurring eight and eleven years prior to the citation omitted)); Fillmore v. Fillmore, 147 N.H. 283, 28 p. 6 6 (2001) (holding that cannot support a finding of abuse under RSA chapter 173-B” (quotations and 158 N.H. at 608 (“[i]ncidents which are too distant in time and non-specific events detailed in the motion to amend because they are stale. See Walker, Next, the defendant argues that the trial court erred in considering the 6

DALIANIS, C.J.