2014-0209, Susan Achille v. George Achille, Jr.

respondent’s motion to recuse in the parties’ divorce proceeding; and (3) presiding over the domestic violence proceeding, despite having granted the proceeding; (2) denied the respond ent’s motion to recuse Judge Carbon from order which had continued the final hearing in the domestic violence by the petitioner, Susan Achille, in which the trial court: (1) vacated its earlier of the Circuit Court (Carbon, J.) arising from a domestic violence petition filed BASSETT, J. The respondent, George Achille, Jr., appeals several orders

Connor on the brief and orally), for the respondent. Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F.

p etitioner. and James F. Ogorchock on the brief, and Mr. Ogorchock orally), for the Sheehan, Phinney, Bass + Green, P.A., of Manchester (John - Mark Turner

No. 2014 - 209 9 Circuit C ourt - Manchester Family Division th

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, Concor d, 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 p. 2 22 as 2

the date of the petition. The final domestic violence hearing was scheduled for hearing had “been continued multiple times” and 14 months had passed since envisions a final hearing within 30 days of the filing of the petition,” the final final hearing. The court observed that, although the “statutory framework vacated its earlier scheduling order an d ordered that the matter be s et for a resolved.” Nonetheless, o n January p. 2 24, 2014, t he trial court, sua s ponte, “after October 1, 2014” when “the [respondent’s] criminal matters have been December 2013, the trial court ordered that the hearing be rescheduled for repeatedly continued the final hearin g in the domestic violence case. In During the next year, at the respondent’s request, the trial court

respondent. December 4 i ncident. Criminal charges were subsequently filed against the police, seeking to press charges against the respondent arising out of the final hearing for later that month. On December p. 2 27, the petitioner wrote to the court issued a temporary domestic violence protective order and scheduled a she described the incident that occurred in her home three days earlier. The On December 7, the petitioner fil ed a domestic violence petition in which

Manchester for mediation regarding t he ir pending divorce. dinner together at a restaurant. On December 6, the y drove together to the respondent, or seek a protecti ve order. Later that day, the parties had time, s he did not tell the police about the gun, press criminal charges against The next day, the petitioner reported the incident to the police. At that

an umbrella and fell after tripping over a pair of boots. abuse occurred, and testified that, on December 4, the petitioner h it him with across the face and dislocated [her] jaw.” The respondent denied that the times” in the past, including in June p. 2 2012 when the respondent had “hit [her] floor. According to the petitioner, the respo ndent had also “hit [her] plenty of against a counter, choked her, slammed a door on her, and pushed her to the petitioner, pursued her through the home, grabbed her by the hair, threw her going to use the gun. An argument ensued. The respondent then yell ed at the petitioner’s residence with a box that contained a gun and told her that he was O n the night of December 4, 2012, the respondent went to the

the time, the parties lived in separate residences at the same address. married for more than 30 years, the petitioner filed for a no - fault divorce. At otherwise drawn from the record. In June p. 2 2012, after the parties had been The following facts are derive d from the trial court’s orders or are

Supp. p. 2 2014). We affirm. entered a final domestic violence protective order. See RSA ch. 17 p. 3 3 - B (2014 & 3

impropriety and t he appearance of impropriety.” Sup. Ct. R. p. 3 38, Canon 1.2. independence, integrity, and impartiality of the judiciary, and shall avoid act at all times in a manner that promotes public confidence in the violence proceeding. Pursuant to the Code of Judicial Conduct, “[a] judge shall impropriety, Judge Carbon erred by not recusing herself from the domestic appearance as a witness in the divorce proceeding created an appearance of T he respondent first contends that, because the accountant ’s

on - going safety.” This appeal followed. contentious divorce,” the respondent presented “a credible threat to Petitione r’s given the “long history of abuse” and the fact that the “parties are in volved in a These are acts of abuse pursuant to RSA 17 p. 3 3 - B.” The court also found that, addition to threatening her with a firearm and restrain ing her movement. assault (grabbing [petitioner’s] hair, choking her, pushing her to the ground), in concluded “that Respondent has committed acts of abuse including simple protective order. The trial court credited the petitioner’s testimony and B.” The trial court denied the motion and granted a final domestic violence allege conduct that could reasonably be construed to be abuse under RSA 173 dismiss the domestic viole nce petition, arguing that “the petition fail[ed] to After the domestic violence hearing, the respondent filed a motion to

officer. hearing, and the parties’ divorce proceeding was assigned to another judicial case. Accordingly, Judge Carbon presided over the March 6 domestic violence professional when that person has no role whatsoever” in the domestic violence conflict of interest, n or any appearance of possible bias resulting from a shared recusal from the domestic violence proceeding, explain ing that there was “no during the divorce hearing. However, she denied the motion seeking her preference to, or undervaluing the quality of, [the accountant’s] testimony” proceeding, observing that the “Court could be accused of either giving undue Following oral argument, Judge Car bon recused herself from the divorce

Carbon was required to recuse herself from both proceedings. between the domestic violence and the divorce proceeding s such that Judge testify in the domestic violence proceeding,” an “integral connection” existed Carbon. The respondent asserted that, although the accountant “w[ould] not behalf during the divorce proceeding also provided financial services to Judge because the accountant who was scheduled to testify on th e respondent’s proceedings. He argued that recusal was required from both proceedings recuse Judge Carbon from both the domestic violence and the divorce On March 6, the day of the scheduled hearings, the respondent moved to

divorce. March 6, 201 p. 4 4, the same day as the hearing on the merits in the parties’ 4

of the fault - based grounds, in the context of a no - fault divorce — as we have domestic violence proceeding could be relevant to the trial court’s consideration Therefore, in contrast to a fault - based divorce in which the outcome of a h ealth or endanger reason.” RSA p. 4 458:7, III, V (2004); cf. RSA 458:7 - a. other,” or that “either party has so treated the other as seriously to injure the fault - based grounds, such as the “[e]xtreme cruelty of either party to the (Supp. 2014). Consequently, the petitioner d id not need to demonstrate one of of irreconcilable differences, and not based upon fault. See RSA 458:7 - a First, we note that t he petitioner sought a divorce based up on the ground

separate cases. proceeding as components of a single case. Rather, the proceedings are two i ncorrect characterization of the domestic vio lence proceeding and the divorce from the re mainder of th at case because his argument is p remised upon an correct in asserting that recusal from one p ortion of a case requires recusal We initially observe that we need not decide whether the respondent is

conclude that recusal was not required. without deciding, that the respondent did not waive his recusal argument, we because he waited until the day of the hearings to file the motion. Assuming, The petitioner also contends that the respondent waived his recusal argument violence proceeding and that t he respondent erroneously conflates the two. The petitioner asserts that the parties’ divorce is distinct from the domestic the accountant had “absolutely no role” in the domestic violence proceeding. In response, the petitioner argues that Judge Carbon did not err because

any portion of the proceedings demands complete separation from the case.” its entirety,” includin g the domestic violence proceeding, because “recusal on from the divorce proceeding, she should have recused herself from “the case in finder.” The respondent maintains that, once Judge Carbon recused hers elf the divorce proceeding “and his current employment by the presiding fact impropriety existed due to the accountant’s “role i n this case” as a witness in domestic violence proceeding was required because an appearance of The respondent argues that Judge Carbon’s disqualification from the

doubt that justice would be done in the case.” Id. (quotation omitted). disinterested observer, fully informed of the facts, would entertain significant appearance of partiality is an objective one, that is, whether an objective, court.” Miller, 1 p. 5 5 p. 4 4 N.H. at 456 (quotation omitted). “The test for the reasonable person, not the judge [her] self, question the impartiality of th e impropriety exists is determined under an objective standard, i.e., would a 448, 456 (2006); s ee Sup. Ct. R. 38, Canon 2. 11. “Whether an appearance of and to avoid even the appearance of improp riety.” Miller v. Blackden, 154 N.H. proceeding in which the judge’ s impartiality might reasonably be questioned Thus, “t he Code of Judicial Conduct requires disqualification of a judge in a 5

“were an integral part of the two later related cases.” Id. at p. 5 594. partiality in the original case” and the fact that the original judge’s rulings other judges in the subsequent cases because of the “pervasive appe arance of judge made no rulings in “two later related cases,” we vacated orders issued by party - in - interest before that judge.” Blaisdell, 135 N.H. at 592. Although that he was “related within the third degree to a partner in a law firm representing a we held that a trial judge should have disqualified himself from a case in which required that Judge Carbon recuse herself from both proceedings. In Blaisdell, separate, our decision in Blaisdell v. City of Rochester, 135 N.H. 589 (1992), The respondent also argues that, even if the two proceedings are

the same case. are not — contrary to the respondent ’s argument — diffe rent components of important differenc es, we conclude that the two proceedings are separate and the different standards and burdens of proof germane to each.”). G iven these the same facts, they cannot be equated, and the defendant’s argument ignores N.H. 26 p. 5 5, 269 - 70 (2002) (“While the civil and criminal cases were grounded in 2014) (governing, among other things, divorce). S ee also State v. Bader, 148 RSA ch. 173 - B (governing domestic violence), with RSA ch. 458 (2004 & Supp. different legal criteria and procedures applied in the two matters. Compare proceeding. Moreover, although the two proceedings involved the same parties, sought a protective order — served a very different purpose than the divorce Notably, the domestic violence proceeding here — in which the petitioner single matter” and the partie s and the trial court t reated them as a single case). docket numbers, “the cases more closely resembled bifurcated issues of a purposes of Superior Court Rule 168 because, although the two had different fraud matter and the underlying zoning matter were the same case for Town of Nottingham v. Bonser, 146 N.H. 418, 426 (2001) (concluding that the proceeding, and that the trial court did not consolidate the proceedings. Cf. Further, we observe that a different docket number was assigned to each

not considered on question of property division or alimony). & Nassar, 1 p. 5 56 N.H. 769, 774 (2008) (stating that, in a no - fault divorce, faul t is terms of the divorce decree. See RSA 458:7 - a; see also In the Matter of Nassar proceeding would not have had any impact on the divorce proceeding or the improper and inadmissible, and the outcome in the domestic violence allegations and evidence of specific acts of misconduct in this case would be differences.” However, neither exception is applicable here. Accordingly, the court to be necessary to establish the existence of irrecon cilable and responsibilities are an issue . . . or at a hearing where it is determined by misconduct shall be improper and inadmissible, except where parental rights a petition” for a no - fault divorce, “allegatio ns or evidence of specific acts of Furthermore, RSA 458:7 - a provides that “[i]n any plead ing or hearing of

relevance. here — the outcome of a domestic violence proceeding is of little or no p. 6 6

(quotation and ellipsis omitted). the decision was clearly unreasonable to the prejudice of his case.” Id. decisions about motions to continue only if the [respondent] demonstrates that exercise of discretion stan dard.” Id. (quotation omitted). “We will disturb omitted). “We review a trial court’s rulings in this area under an unsustainable it.” In the Matter of Sawyer & Sawyer, 1 p. 6 61 N.H. 11, 18 (2010) (quotation “The trial court has broad discretion in managing the proceedings before

domestic violence matter be scheduled for a final hearing. vacated the continuance that it had previously granted, and ordered that the The respondent next argues that the trial court erred when it sua sponte

proceedin g. err by denying the motion to recuse herself from the domestic violence involve that business partner). Accordingly, we hold t hat Judge Carbon did not from cases involving the defendant’s business partner, the present case did not recuse himself because, although the judge had previously recused himself done. See id. at 455 - 5 p. 6 6 (concluding that the trial judge did not err in failing to informed of the facts, would not, in fact, entertain doubt that justice would be proceeding in any manner, we conclude t hat a disinterested observer, fully because the accountant was not to be involved in the domestic violence that caused Judge Carbon to recuse herself from th at proceeding. However, Here, it was the accountant’s role as a witness in the divorce proceeding

done in the case.” Miller, 154 N.H. at 45 p. 6 6 (quotation omitted). informed of the facts, would entertain significant doubt that justice would be objective one, that is, whether an objective, disinterested observer, fully appearance of impropriety [,]. . . [t]he test for the appearance of parti ality is an judge’s impartiality might reasonably be questioned and to avoid eve n the Conduct requires disqualification of a judge in a proceeding in which the recusing herself from the parties’ divorc e. Although “the Code of Judicial when Judge Carbon presided over the domestic violence final hearing after The respondent also argues that an appearance of impropriety existed

case,” id., has no application here. orders stemming from the “pervasive appearan ce of partiality in the original Carbon’s recusal. Accordingly, our decision in Blaisdell to vacate subsequent existed in the divorce proceeding no longer existed as a result of Judge Thus, in contras t to Blaisdell, any appearance of impropriety that may have proceeding upon learning about the accountant’s role in that proceeding. the [original] proceeding,” id., Judge Carbon recuse d herself from the divorce failed to recuse himself despite the “appearance of partiality [that] permeate[d] However, Blaisdell is distinguishable. Unlike the judge in Blaisdell who p. 7 7

mo tions to continue] under an unsustainable exercise of discretion standard.” proceedings before it,” and “[w]e review a trial court’s rulings [regarding As we have stated, “[t]he trial court has broad discretion in managing the or related criminal proceeding.” We have never required the use of such a test. when a court “encounter[s] [a] civil continuance request[] bec ause of [a] parallel Microfinancial, Inc., 385 F.3d at p. 7 78, should be employed in New Hampshire balancing test, which is utilized by some federal courts, see, e.g., Equally unavaili ng is the respondent’s assertion that a multi - part

final hearing in March was not an unsustainable exercise of its discretion. added)). Accordingly, we conclude that the trial court’s decision to hold the and effective police protection and judicial relief” (quotation omitted; emphasis protect the family unit by “entitling victims of domestic violence to immediate (2011) (stating that the purpose of RSA chapter 1 p. 7 73 - B is to preserve and delay in domestic violence cases. See Knight v. Maher, 161 N.H. 742, 744 - 45 contravened the high priority that the legislature has placed upon a voiding proceedings — including any appeals — would have fostered delay, and thus violence final hearing until the conclusion of the respondent’s criminal of action.” Id. (quotation omitted). Additionally, continuing the domestic interest to force the government to choose between a civil and criminal course simultaneously on two fronts, and that it would unduly compromise the public principle that protection of the public interest may often require proceeding disposition of a related criminal case.” Id. “The law thus recognizes the case. “T here is no constitutional right to a stay of a civil proceeding pending (1986). The respondent has not persuaded us to reach a different result in this regarding his Fifth Amendment rights. S ee In re Melissa M., 127 N.H. 710, 712 argument that is nearly identical to that which the respondent now makes A s the petitioner correctly observes in her brief, we previously rejected an

court erred when it moved the final hearing forward. order was issued, and since he did not object to a further continuance, the trial designed to protect only the inter ests of the party against whom the protective the filing of a domestic viol ence petition, see RSA 1 p. 7 73 - B:3, VII (2014), is asserts that, because the 30 - day time period for scheduling hearings following hearing until the criminal proceedings had concluded. Finally, t he respondent i dentified in Microfinancial weigh ed in favor of continuing the domestic violence Holidays Intern., 3 p. 8 85 F.3d 72, 78 (1st Cir. 2004). He contends that the factors the case should have been continued. See Microfinancial, Inc. v. Premier court should have utilize d a multi - factor balancing test to determine whether proceeding.” R elying upon federal case law, he further argues that the trial rights” in order to “defend himself from the allegations in the domestic violence domestic violence hearing “forced [him] to abandon his Fifth Amendment concluded.” He contends that the court’s decision to accel erate the final violence proceeding before the underlying criminal assault charges were discretion when ordering the Respondent to move forward with the domestic The respondent a sserts that the court “unsustainably exercised its 8

Walker v. Walker, 15 p. 8 8 N.H. 602, 608 (2009) (quotation omitted). omitted). “We view the evidence in the light most favorable to the [petitioner].” weight to be given testimony.” Tosta, 156 N.H. at 767 (b rackets and quotation weight to the trial court’s judgments on the credibility of witnesses and the 173 - B:3, VI (2014). “When p erforming this review, we accord considerable evidentia ry s upport or tainted by error of law. Tosta, 156 N.H. at 767; see RSA uphold the findings and rulings of the trial court unless they are lacking in We review sufficiency of the evidence claims as a matter of law, and

that warranted entry of a final domestic violence protective order. We disagree. day — the trial court erred in concluding that his actions constitute d “abuse” him on December 5 and then traveling with him to the mediation the following subsequent to the December 4, 2012 incident — including having dinner with 2014 final hearing. He further asserts that, given the petitioner’s actions petition was an event that had occurred fourteen months” before the March constituted an ongoing credible threat of harm” because “the sole basis for her petitioner “did not sustain her burden of proof that Respondent’s conduct in Tosta v. Bullis, 156 N.H. 763 (200 p. 8 8), the respondent maintains that the protective order. See RSA 173 - B:5 (2014). R elying primarily upon our decision presented at the final hearing to support entry of a final domestic violence T he respondent next argues that the re was insufficient evidence

domestic violence hearing fo r March 6, 2014. discretion when it vacated its previous scheduling order and scheduled the satisfy his burden to show that the trial court unsustainably exercised its (quo tation omitted). Accordingly, we conclude that the respondent has failed to effective police protection and judicial relief,” Knight, 161 N.H. at 744 - 45 chapter 173 - B of “entitling victims of domestic violence to immediate and 643, 646 (2005), th at timeframe also promotes the overall purpose of RSA placed upon him by another’ s allegations, see Mc Carthy v. Wheeler, 152 N.H. 173 - B:3, VII protect s the respondent’s right to timely challenge the restraints chapter 173 - B. A lthough it is true that the 30 - day timeframe set forth in RSA timeframe protects only his interests ignores the broader purpose of RSA occurs later.” However, the respondent’s argument that this statutory . . . or within 10 days of service of process upon the [respondent], whichever a domestic violence hearing be held “within 30 days of the filing of [the] petition respondent correctly note s that RSA 173 - B:3, VII contemplates that, generally, period for domestic violence hearings protects only his interests. The Nor are we persuaded by the respondent’s argument that the 30 - day time

required is not an unsustainable exercise of discretion. Accordingly, the trial court’s failure to employ a test that we have never In the Matter of Sawyer & Sawyer, 161 N.H. at 1 p. 8 8 (quotations omitted). p. 9 9

represented a credible present threat to the petitioner’s safety. sufficient evidence for the trial court to conclude that the respondent the date of the final hearing or as of the date of the pet ition, there was Regardless of whether the credible present threat determination is made as of Under the circumstances of this case, we need not resolve that issue. violence hearing takes place, and not as of the time that the petition was filed. credible threat” determination must be made as of the time the domestic As a preliminary matter, the respondent assert s that the “present

ongoing credible threat of harm.” We are not persuaded. incident, the trial court erred in concluding that his “conduct constituted an and the fact that the final hearing took place more than 14 months after the petitioner’s actions in the days immediately following the December 4 incident, Regarding the second eleme nt, the respondent contends that, given the

acts against the petitioner on December 4. See RSA 173 - B:1, I. sufficient evidence existed that the respondent committed one or more criminal omitted). W e cannot conclude that the trial court erred in determining that weight to be given testimony.” Tosta, 156 N.H. at 767 (brackets and qu otation weight to the trial court’s judgments on the credibility of witnesses and t he final hearing regarding the December 4 incident, “we accord considerable See RSA 173 - B:1, I(a) - (b). Although conflicti ng testimony was presented at the grabbed the petitioner by her hair, choked her, and pushed her to the ground. brought a gun to the petitioner’s home, stated that he would “use it,” and then includ ed simple assault and threatening with a firearm when the respondent December 4 incident. Th e trial court determined that these criminal acts “provided credible testimony of specific” criminal acts that occurred during the As t o the first element, the trial court concluded that the petitioner

credible threat to her safety exists.” Id. (quotation omitted). violence and more recent non - violent harassment to support a finding that a more than a generalized fear for personal safety based upon past physical chapter 173 - B. Walker, 158 N.H. at 608. Add itionally, a p etitioner must “show distant in time and non - specific cannot support a finding of abuse under RSA petitioner ’ s safety, however, must be ongoing. Id. Incidents that are too petition. Tosta, 156 N.H. at 767. The threat posed by such conduct to a finding of abuse need not immediately precede the filing of a domestic violence I. See Walker, 158 N.H. at 608. The threshold misconduct that will support a “co nstitute[s] a credible present threat to the petitioner’s safety,” RSA 173 - B:1, see RSA 173 - B:1, I(a) - (h) (2014); and (2) a finding that such misconduct commission or attempted commission of one or more of several criminal acts, 173 - B:5, I (Supp. 2014). “Abuse” is defined as having two elements: (1) ‘abuse’ by a preponderance of the evidence.” To sta, 156 N.H. at 767; see RSA “To obtain relief under RSA chapter 173 - B, a [petitioner] must show p. 10 10

the past, including on an occasion six months prior to the filing of the petition domestic violence hearing that the res pondent had “hit [her] plenty of times” in evidence to which the respondent refers is the petitioner’s testimony at the incidents that are too stale cannot support a finding of abuse). The specific was too stale for the trial court to consider. See id. at 608 (noting that We also disagree with the respondent’s assertion that certain evidence

controlling here. 158 N.H. at 609 (similarly distinguishing Tosta). Accordingly, Tosta is not petitioner to file t he domestic violence petition three days later. See Walker, bringing a gun to the petitioner’s home and choking her, that prompted the contrast, it was the respondent’s misconduct on December 4, which included protective order.” Tosta, 156 N.H. at 768 (emphasis in original). Here, in display of some threatening behavior, . . . ultimately prompted her to fi le for a and unexplained decision to leave her home, as opposed to his affirmative Further, the p etitioner in Tosta testified that “the [respondent] ’s sudden

people and she did not feel in immediate danger at that time). plaintiff explained that they were at a family campground with 15 - 20 other defendant had been “okay” during the weekend preceding her petition, the because, although the plaintiff stated that things between her and the misconduct. See id.; c f. Walker, 158 N.H. at 609 (distinguishing Tosta together without physical violence for nine months following the alleged threatened during that trip. This is in contrast to Tosta, where the parties lived because the respondent was the one driving to the mediation, she did not feel changing their prior arrangements of driving together to the mediation; and (3) there separately; (2) she did not want to “get [the respondent] angry” by also explained that: (1) the dinner occurred in a public place and they drove after the incident and traveled with him to the mediation the following day, she the petitioner testified that she went to dinner with the respondent the night petitioner filed her petition three days aft er the December 4 incident. A lthough the petitioner filed nine months after the alleged misconduct, here the T he present case is readily distinguishable: i n contrast to Tosta, where

entering a final domestic violence protective order. Id. restraining order.” Id. We, therefore, concluded that the trial court err ed in forces, as opposed to the . . . assault, prompted the [petitioner] to seek a the “only conclusion supported by . . . the evidence . . . [was] that some other request for protection and the [prior] assault was attenua ted at best,” and that Tosta, 156 N.H. at 768. We explained that the “link between the [petitioner] ’s petition, during which the parties lived together without physical violence. months had passed between the cr iminal misconduct and the filing of the safety at the time she filed [the] domestic violence petition” because nine a finding that the [respondent] represented a credible threat to the [petitioner] ’s Tosta. In Tosta, we concluded that “there was insufficient evidence to support To support his argument, the respondent relies upon our decision in p. 11 11

DALIANIS, C.J.