2010-224, Cindy Leone v. Richard Leone

New Hampshire Legal Assistance

No. 2010-224

Littleton Family Division

New Hampshire, she gave birth to the couple’s third child. “in fear of [her] life and [her] children’s” lives. After the petitioner arrived in when the petitioner left for New Hampshire with the children because she was The family resided together in Mississippi until approximately January 6, 2010, 2005 and had two children, a son born in 2006 and a daughter born in 2007. 1999 and moved to Mississippi together the following year. They married in The record reveals the following facts. The parties met in Vermont in

Jason R. Crance

the Littleton Family Division (Cyr DALIANIS, C.J. The respondent, Richard Leone, appeals a decision by

petitioner, Cindy Leone. We reverse and remand. telephonically in defense of the domestic violence petition brought by the

and orally), for the petitioner.

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 that telephonic testimony is admissible. Cf p. 2 contest the admissibility of telephonic testimony, we assume without deciding respondent’s request to testify telephonically. Because the parties do not The sole issue on appeal is whether the trial court erred by denying the

This appeal followed.

testimony. Never have, never will. THE COURT: I’m not going to allow it. I do not allow telephonic

. . . .

credibility. If they’re not in front of me, how can I do that? people to testify telephonically. I have to judge their demeanor, their THE COURT: I’m having a problem with that. I do not usually allow

it.” In the Matter of Sawyer & Sawyer “The trial court has broad discretion in managing the proceedings before

(2010). respondent’s case. Buzzard v. F.F. Enterprises, 161 N.H. __, __, 8 A.3d 87, 88 unsustainable if it is clearly untenable or unreasonable to the prejudice of the Heinrich & Curotto, 160 N.H. 650, 655 (2010). The trial court’s decision is sufficient to sustain the discretionary judgment made. In the Matter of means that we review only whether the record establishes an objective basis unsustainable exercise of discretion standard. Id. at __, 8 A.3d at 86. This (quotation omitted). We review the trial court’s rulings in this area under our stating: testify telephonically to present his defense. The court denied the motion, 161 N.H. __, __, 8 A.3d 80, 86 (2010) respondent’s attorney then requested that the respondent be permitted to attorney moved to dismiss the petition. The court denied the motion. The attorney. At the conclusion of the petitioner’s testimony, the respondent’s telephonic testimony), cert. denied, 129 S. Ct. 1320 (2009). participated in the hearing telephonically and through his New Hampshire 284, 290 (Kan. 2008) (recognizing that jurisdictions are split on propriety of March 8, 2010. The respondent was in Mississippi at the time, but. In re Estate of Broderick, 191 P.3d A hearing on the petitioner’s domestic violence petition was held on

emotionally abused her for nine years. the Littleton Family Division alleging that the respondent had physically and petitioner filed a domestic violence petition pursuant to RSA chapter 173-B in seeking custody of the parties’ minor children. On February 8, 2010, the divorce in Mississippi alleging habitual cruel and inhumane treatment and On or about February 2, 2010, the respondent filed a complaint for p. 3 Reversed and remanded

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

reverse and remand for further proceedings consistent with this opinion. Accordingly, the trial court unsustainably exercised its discretion, and we telephonically. See In the Matter of Heinrich & Curotto, 160 N.H. at 655. failed to consider any factors relevant to the respondent’s request to testify sustain the discretionary judgment made by the trial court because the court respondent, see The record in this case does not establish an objective basis sufficient to

testimony by an offer of proof. whether the respondent’s attorney could provide evidence of the respondent’s the respondent could provide his testimony, such as by videoconferencing, or Silvers, 999 P.2d at 790; and (6) whether there were other methods by which 2005); (5) whether the petitioner had any objection to the testimony, see Guardianship/Conservatorship of Van Sickle, 694 N.W.2d 212, 218 (N.D. technological capability to accommodate such a request, see ammunition during duration of order); (4) whether the court has the RSA 173-B:5, II (Supp. 2010) (restricting ability to purchase guns and

, e.g. RSA 173-B:5, I(b)(5) (2002) (temporary custody awards);

of service of process upon respondent); (3) the consequences facing the hearing within 30 days of filing of domestic violence petition or within 10 days police protection and judicial relief); RSA 173-B:3, VII(a) (2002) (requiring 116, 117 (2001) (domestic violence victims entitled to immediate and effective nature of the proceedings, see In the Matter of Morrill and Morrill, 147 N.H. travel expenses that would be incurred by party residing out of state); (2) the call); Silvers v. Silvers, 999 P.2d 786, 790 (Alaska 2000) (considering significant (elderly plaintiff unable to travel permitted to testify by videotaped conference Ferrante by Ferrante v. Ferrante, 485 N.Y.S.2d 960, 962 (Sup. Ct. 1985) such factors as: (1) the defendant’s ability to travel to New Hampshire, see Depending upon the circumstances of the case, the court could consider

participate in civil proceeding telephonically (quotation omitted)). security, or logistics” before denying incarcerated prisoner’s request to (trial court must consider “countervailing considerations such as expense, unsustainable exercise of discretion); cf. Buzzard, 161 N.H. at __, 8 A.3d at 89 156 N.H. 323, 333 (2007) (failure to exercise discretion constitutes unsustainable exercise of its discretion. See In the Matter of Costa & Costa, blanket denial, without considering other factors relevant to this case, was an party contested the admissibility of telephonic testimony, the trial court’s not allow telephonic testimony. Never have, never will.” Given that neither to assess the respondent’s credibility and demeanor, it went on to state, “I do case. See id. at __, 8 A.3d at 88. Although the trial court noted that it needed testify telephonically was untenable and unreasonable to the prejudice of his We conclude that the trial court’s denial of the respondent’s request to