L.C. v. W.C.

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2021.

lc is represented by Mary Kruger. WC is at represented by Thomas Reed. Mr. Reed, I understand you have not reserved any time, so, uh, when you're ready to present your argument, the court is ready to hear from you. Thank you. Uh, chief Justice McDonald, may it please the court. My name is Tom Reed. I represent Ellant, uh, initials wc. He's the defendant in the district court. A matter brought by his wife, the plaintiff, uh, who obtained a domestic violence order protection, uh, following an incident of alleged reckless conduct involving, uh, her aunt, uh, a house guest. There are two issues on appeal. Uh, one, uh, in the first instance whether the domestic violence order should have issued. Uh, and here, um, uh, my client's focusing on the upon is focusing on the trial court's ruling that the enumerated offense that must be found, uh, need not be committed against the plaintiff, but can be committed against a third party. The defendant submits, uh, this court should rule in favor, uh, of his interpretation. The statute taken as a whole requires that the predicate, enumerated offense must be an act of domestic violence against the plaintiff. Under Chapter 1 73 B, uh, the trial court aired in finding the act against a third party. In this case, the plaintiff wasn't even present, uh, in the home when that act of abuse occurred. Second, um, to the extent the order issued, the defendant submits the trial court exceeded its authority and ordering, uh, conditions that were not necessary to cause cessation of the abuse, and that the court is limited in the conditions it can order. And in this case, having ordered that the defendant surrender his firearms, that he cease drinking alcohol, that he get alcohol treatment, uh, the additional conditions of no contact and having to leave his home were completely unnecessary under the circumstances. The defendant is a, uh, retired law enforcement officer. 45 years on the job, always carried a gun. He had been working nights and still carrying a gun, uh, and then day drinking, uh, and developed a pretty bad problem with alcohol Attorney Reed, if we agree with you that the statute requires the abuse to be conducted specifically against the plaintiff, can't we still affirm the trial court's ruling and its consideration of the November 28th, 2019 conduct, and that that was a simple assault right against the, the plaintiff, and that in combination with the more recent events, drew the court to conclude that there was a credible risk of, uh, safety to the plaintiff. Why can't we go in that direction? Well, I think under the circumstances, the trial court, uh, is, is best in the best position to reevaluate this, and you should remand it to the trial court. Uh, if you rule in, in the defendant's favor on this issue, the, um, period of time that went past from that alleged simple assault in November to the following August, where he was in his own home, in his living room, uh, kind of sleeping on the couch, put his gun on his chest, uh, he's a right-handed shooter, that's uncontroverted. When the aunt came into the room, he took it with his left hand. Um, many people could consider that the smart and safe thing to do as someone was getting close to you and the gun wasn't secure. He secured it. She believed, he pointed at her, perhaps. And, and the trial court found that perhaps the, the, the business end of the, the firearm was pointed in her direction, uh, but via triggering event for issuing a restraining order, it needs to be one of the enumerated offenses. It was not. I'd submit that the timeframe that went passed from November to August, uh, was too great. There were no facts that show that he presented a danger specifically to her. Mr. Reed, setting aside that the time lapse from November to August, you're not arguing that the simple assault that occurred in November is not an adequate predicate act under the statute, are you? No. A simple assault against the plaintiff could be a, a predicate act that's satisfactory under the statute. I just think that the trial judge made his decision and gave, uh, improper weight based on that, and that this court should, should revisit. And again, make sure that, I mean, you're, you're not disputing that, I mean, the trial court made an express finding that by a preponderance of an evidence of the evidence, there was sufficient basis to conclude that WC knowingly caused unprivileged contact in November of 2019. I mean, that is a finding that the trial court made, and why isn't that alone sufficient under the statute? Um, I he did make that finding. I think he made the finding that he recklessly caused the injury to work. Um, I don't think, uh, it, it may have been knowingly, but that that could be sufficient under the statute. Um, I think that it should be remanded for him to reevaluate it. But given that we have a trial court judge who has made the statement, the abuse statute does not specifically require the act of abuse to be directed at the plaintiff, there's a real problem that repeating in that court. And I'd ask this court to clarify that for the trial Judge, What, what is the sexual support for your argument? Can you point us to specific words in the statute that requires that it be directed at the plaintiff? Sure. The, um, this court has been clear that it's, it requires the defendant to have committed one of the enumerated offenses and the enlisting the offense, it says that they must be committed by a family or household member or a current performer, secular government partner. So by that person, RSA 1 75 B five refers to the relief that can be granted. And B four does the same thing upon a showing of abuse of the plaintiff. So, um, once, excuse me, 1 7 3 B 3 1 1 also refers to a person may secretly by filing a petition in the county district where the plaintiff resides, uh, alleging abuse by the defendant. So abuse by the defendant, by the household member of the plaintiff further. Um, but How, how does that make sense with the enumerated offenses? For instance, how do you abuse, uh, the plaintiff when one of the enumerated offenses is cruelty to animals? Thank you for the question. Uh, chief, the, um, subsection H of the statute was added in 2014, and at the time, uh, it was brought, all these offenses are crimes of domestic violence and the folks that put forth that amendment the statute, uh, were suggesting that in domestic violence situations, often the animal is harmed in order to harm the plaintiff. And that's specifically what the attentive and I would suggest to you, that trial judges should evaluate a cruelty to animals charge as one that's committed against the plaintiff, either their animal or used to harm them versus, you know, there are charges of cruelty animal for someone who owns their horses to excessively in winter. That has nothing to do with the plaintiff unless it's her horses, Or we wouldn't, right. We wouldn't say just because the defendant went and harmed the neighbor's dog that was directed at the plaintiff. Aren't we also, isn't the trial judge also required to find that the acts present a credible present threat to the petitioner's safety? Absolutely. And, and if I may, uh, chief, to go back to your question, the the question should be for, uh, this court, why did the legislature create enumerated list? The legislature didn't say commit any offense against anyone, as long as we find that that makes you, or, or presents a credible threat to the plaintiff. The plaintiff who's a family or household member can petition for a domestic violence restraining order. They're all crimes of domestic violence. What crime, uh, of domestic violence is not on that list. And it's very telling homicide, it's not on the list because there is no plaintiff who's been murdered who's going to file it. Now, if the trial court's interpretation was correct and simply there could be a third party who was a victim of homicide, you could contemplate, okay, some, someone snapped and they're killing all their ex-girlfriends and ex-wives, an ex-wife who's still alive, can't petition the court for relief because homicide isn't listed. So I think that supports, um, this interpretation. I'd also point out, in case that I missed when I filed a brief, and I'd ask the court to, uh, entertain, uh, this case is, um, SERT v Sert. It's 1 4 1 New Hampshire 7 6 6. And it actually, uh, involves a case where, uh, the plaintiff's wife was not. I, I'll just, Mr. Reed, I'll cut you off there. That was decided in 1997. The statute's been amended since. So I, you know, I don't think SFR really helps you. I I would, while you're at, while you're talking about cases, I would ask you to address McArdle, which the plaintiff did cite where, uh, justice Convoy wasn't a holding, but she did, she did refer favorably to conduct by the defendant, directed at someone other than the plaintiff in that case, including throwing a stone in the car of the, the party's son pushing over, uh, staging at work, uh, thrusting his, his hand through a window, uh, all of which were, you know, the court concluded were, were evidence that, or credible evidence, uh, about a credible threat to safety to the plaintiff. How do, how do we reconcile that? Um, I disagree slightly with your interpretation of the case, and you are correct. Um, uh, the plaintiff suggested that it was a holding, it's not a holding. The, the predicate offense was criminal threatening against the plaintiff in that case. And in the criminal threatening, the defendant was holding a, a torque that he hadn't lit. Question was whether or not that would place her in fear in order to find by preponderance of the evidence that criminal threatening had occurred, because he didn't overtly threaten her. And I believe if you read su uh, McCardle, what the court's saying is those other acts are relevant when evaluating and why the court found that criminal threatening had occurred when there was no over threat. The torch hadn't been lit. And I think the court wrote that, um, those acts supported its conclusion that the plaintiff was in fear of physical contact from the defendant when he followed her, uh, and so forth. And that supported the finding of that required criminal act of criminal threatening. I, I don't think it was saying these are are other acts that acceptable, and it certainly didn't say that that that, um, those were crimes that fit the enumerated offenses. Mr. Reed, it seems like it would've been very easy for the legislature to have, uh, drafted the statute to say precisely what you say it does in terms of these have to be targeted to the plaintiff, but it clearly didn't do that. It does talk about who has to commit the offenses, uh, the family member or household member, and it didn't limit, uh, the target as it were or the victims. So why, why can we, or should we, given the broad purpose of the statute, insert that limitation? 'cause I think they, they did in, in two ways. Um, as I said, they're showing that it has to be abuse of the plaintiff and you're protecting the plaintiff from ongoing abuse. And secondly, uh, in answer to the chief's question about the age of the SER case, uh, after that case came out, the legislature has amended the statute in different ways, but the legislature did not amend the statute to say, Hey, ser, it's wrong. It could be someone that's not specifically the plaintiff who's a victim of one of the enumerate offenses. The legislature did not do that. And that's, that's very telling. And to the extent that they, um, didn't in their domestic violence statute say more than buy a family member who, uh, commits abuse of the plaintiff, uh, it, it seems like, uh, and knowing a legislature that, that they're addressing domestic violence, that they, that, that perhaps seemed obvious to them that they didn't need to add that, uh, further language. Well, how would you approach a case that involves harassment as a pre predicate fence and involving phone calls to, um, a residence Now, is that, does that cover every resident, every, every person living in that residence or just a person that has that phone number? I think it's, it covers the effort to contact the plaintiff, and I think that's what we understand in domestic violence, that we're protecting people from that type of harassment. It's the effort to contact the plaintiff in, in those calls that at unreasonable hours, it's the plaintiff isn't home and the person making the calls wasn't trying to call the plaintiff, then it certainly doesn't fit, uh, under the statute because it's not abuse of the plaintiff. What was the testimony from the complaining witness that she, to the extent that her safety was in jeopardy? Well, She was clear that she didn't have any concerns for safety if, if, um, WC was not drinking or had firearms, and the, the, uh, that was her concern that, um, he, uh, had, you know, was, was not controlling himself well with the alcohol, but there was no indication or no suggestion that he's ever discharged the firearm. No one even saw a finger go into the trigger guard. Uh, in the prior incident in November, he was, uh, taking the firearm. She saw it by his side when he pushed the door back when he, he believed she was coming through it. The testimony was that that's a location he had to stand to get to the safe. He simply put the, the gun away, which she wanted. And she did not, she did not file for a restraining order back in November. No, she did not. And then they were Intervening, what, eight months, nine months? She did not fear for her safety During that time. Right. Nor nor did she, you know, take efforts to, to do any number of things. I mean, there's no suggestion that if she left the house, he would've pursued her or followed her. Right. The question was, when he's there and he is drinking, and because he's always carried a firearm, she was concerned. And some people are more concerned about firearms than other, but will certainly concede someone. And he conceded when he testified he shouldn't be handling a firearm when he's that drunk, regardless of how much experience he has. Mr. Reed, could you briefly address your second argument? What, what, what box should the trial court not have checked in terms of the, uh, scope of the protective order? Well, clearly it's mandatory under the statute that firearms get surrendered. Appropriate boxes were that, um, he not drink alcohol and that he get treatment for alcohol, but to take that to the next level when there's been no particular targeting or animus towards the plaintiff, and she wasn't even in the house when this, uh, mistake occurred. Um, those conditions that kicked him out of the house, that if they're in the street, he has to stay 300 feet away from her. He presents no more danger to her than any other member of the community in the same way that he did to the aunt. If he's drinking and is a firearm, he presents a danger to folks, but there's no concern that he's, that if he talks to the spouse, he's gonna say something nasty to her that if he sees her in, in the store, she's in in danger. She's not only if he's drinking his firearms, those are the appropriate conditions that were included. The aunt testified that he's a great man. She only has concerns when he drinks. Um, he doesn't get violent when he drinks. There's been no violence or anything prior to this that made her feel unsafe, uh, only felt he was a safety risk when he drinks. Uh, and the, the wife, the plaintiff said the same thing, no concerns for his safety, except when he is around firearms and drinking and the, the statute's clear. It's the only the conditions that are necessary to cause the station of the abuse. So we have to understand what the, the nature of the abuse was. So standing behind a door, trying to put something in the safe, he shoves the door too hard, and then he drinks, uh, while he has a firearm in the house, uh, that, that's the extent of it. And the cause sensation of that is to take away his firearms and to stop him from drinking.

Okay. Thank you, Mr. Reed. Ms. Krueger, Thank you. May please the court. My name is Mary Krueger, and I represent the appellee and the plaintiff in this matter. We ask that this court uphold and affirm the trial court's finding that the defendant abused the plaintiff pursuant to RSA 1 73 B, and that it properly issued a final domestic violence protection order. I have two main points. First is that the statute is plain and unambiguous. It does not require that an act be directed at a plaintiff if it constitutes a credible present threat to the safety of the plaintiff. The court can find abuse as the fi the definition of abuse has been met under the statute. Uh, the second point is that the trial court was well within its discretion when it issued the relief that it did. I'm happy to take Ms. Ms. Kruge, did your client seek a no contact order? Is that what of her request? Yes, she did request a no, no contact order. She requested use and possession of the home. She requested everything that she could have under the relief portion of the statute. What is the, uh, case that's closest that, in your view, supports your interpretation of the statute? Is it McCardle or is it something else? McCardle is the closest case. It, the, the trial court's finding is consistent with McCardle because of ardell's use of prior conduct that the defendant had, uh, committed that would have, that led the court to make its determination about criminal threatening, and that the defendant posed a credible present threat to the safety of the plaintiff. What if we disagree with you? And we believe that the November, 2018 conduct was too remote, but the court had been justified to order the relief. It did, just simply based on the August conduct, uh, conduct, The court could find that the reckless conduct also, um, was directed at the plaintiff here. The plaintiff, uh, was at work when this occurred, but when she came home a couple of hours later, she came home, called for her aunt who was upstairs, locked in her bedroom and came out. Her 78-year-old aunt came out with, uh, visibly, had been upset and crying and explained to her what occurred. The husband was still on the couch, passed out, highly intoxicated, um, requiring the plaintiff to actually step in and intervene. Uh, she and the aunt went in to retrieve the loaded firearm that was in his possession at the time. So the court could view this as an ongoing reckless conduct situation where reckless conduct is when a defendant recklessly engages in conduct which places or may place another in danger of serious bodily injury. And the trial court found that this behavior placed everyone in the household in danger. What, what about the, the argument that the defendant makes the legislatures used repeatedly of the words of the plaintiff upon a showing of abuse of the plaintiff? How do we reconcile that plain language with the definition of abuse? That language is in section five, which is the relief section of the statute, and the first sentence of that it, a finding of abuse shall mean the defendant represents a credible threat to the safety of the plaintiff, presupposes that the abuse finding has been made. So abuse is that there's an enumerated act that has occurred and that it poses a credible present threat to the safety of the plaintiff. So upon a showing that the defendant committed the enumerated act and that that posed a credible threat to the safety of the plaintiff, that is abuse of the plaintiff. So I think that that language is consistent. Are those words surplusage? Do we just read them out? Are they not needed? Why did, why did the legislature put it, put them in there Where it says, upon showing of abuse of the plaintiff by a preponderance of the evidence? I think it's setting up what is, how the court needs to make that abuse finding. So the definition of abuse under section one is where the court goes first to make that finding. And then I think that abuse of the plaintiff is what has occurred when that abuse finding is made, so that that language is really reflecting that sentiment that the abuse has occurred and its abuse of the plaintiff. By virtue of that, the act happened and it was a credible threat to the safety of the plaintiff. Why, why wasn't did are are? Is it your argument that the November 19th incident is in itself sufficient to support the protective order, The Thanksgiving incident? Yes, it could. The court could certainly determine that that, uh, finding of simple assault in combination with the recent reckless conduct shows an ongoing pattern of behavior that would cause or reasonably cause the plaintiff to fear for her safety, which she did. And so that is in the definition of abuse, that section that allows the court to consider a prior act like simple assault, and to look at that in combination with recent conduct to determine if there is a credible threat to the safety of the plaintiff and and whether abuse has occurred. So that is one way this Go Ahead. Oh, I'm sorry. Um, didn't, didn't the trial court also take into account the texts that were sent on October 30th 19 in the whole gestalt of, uh, circumstances? Yes. And those texts, it considered aggressive, uh, the, the content of those texts where, uh, the defendant said that I could have broken your jaw, uh, suggests that, you know, he said basically that if this ever happens again, you startle me awake, that that, that this could happen, um, suggests that there's other types of volatility happening here in this situation. So I do think that that was quite relevant to the court's finding here. Also relevant is that, uh, even though that first simple assault happened about nine months earlier, the defendant was hospitalized for a couple of months last spring and summer of 2020. And during that time, the plaintiff removed all of the firearms, multiple firearms in that household, uh, giving them over to the defendant's prior, uh, sergeant to hold them because she was so concerned that when he got back from the hospital, he would continue this behavior. When he got back from the hospital, he immediately retrieved those firearms, and then he testified that that's when he believes his drinking got even worse and more problematic. So his drinking is increasing that there's this escalation that is occurring. And so when it culminates in this August 28th situation where he points the firearm while he's highly intoxicated, which he admits was loaded at her 78-year-old aunt in the marital home, she, the plaintiff is quite scared at that point, and she calls the police for help, uh, and she changes all the locks in the home because she's so afraid that he's going to come back. So she is very fearful, she's very concerned about the drinking and the loaded firearms. But what about, uh, Mr. Reed's argument that, um, that some of the restrictions aren't necessary once you have the restriction on the firearms and the drinking, that there's no need. And it was an unsustainable exercise of discretion, discretion to, uh, include, for example, the 300 foot, uh, requirement. The trial court sustainably exercised its discretion and really is in the best position to know what is required to protect the safety of the plaintiff. This was a live in-person court hearing with a couple of hours of testimony from the parties and a witness, and the court could, uh, really evaluate the credibility of the witnesses, um, you know, their reactions and what is necessary. The court also in its decision, uh, emphasized that the defendant ought to demonstrate sustained sobriety, um, and that it would hold another hearing to consider whether that had been accomplished and whether that would be relevant to making any adjustment to the no contact orders, because it is in the best position to know, uh, what is necessary for the cessation of abuse. I think it's important that this court, you know, no reiterate and emphasize the policy of RSA 1 73 B, which is really to preserve and protect the safety of the family unit for all family members by entitling victims to immediate and effective police protection and judicial relief. And that this order is in the spirit of that policy. Um, this court could really decide this case in three different ways. It could decide that the plain language of the statute, it does not include any requirement that the act itself be directed at the plaintiff as long as it's a credible present threat to the safety of the plaintiff. Um, and I think that's also supported by the various enumerated acts. Wouldn't that, wouldn't that sort of obviate the focus of this entire narrow statutory scheme? Someone goes out and threatens the neighbor. Would that allow someone in the household to import that behavior and, um, try and make a case that it somehow could be redirected at the folks in the, in the household? Where would that stop? Sure. The nature of the conduct is certainly quite relevant. If the act occurs, uh, still must pose a credible present threat to the plaintiff, it can't be in an attenuated connection, Right? Because, um, between Those things, The effect of a 1 73 B relief order as opposed to other restraining orders, there's a wide ranging effect on the defendant goes into the central database. So how do we balance those, um, interests, if you will? Again, the, the court, you know, there's a whole line of cases as this court knows, beginning with tasa, that really looks at what a credible threat to the plaintiff's safety means. And that relies on the nature of the conduct that occurs, whether there's an ongoing pattern of behavior, uh, and the context under which this is happening. So in this case where we have reckless conduct, that is really an ongoing situation where it's in the marital home, the defendant is highly intoxicated, has admitted to having a heavy drinking problem, is carrying loaded firearms on his person pretty much all the time, um, and is, you know, seemingly, uh, concerned with his own self-defense, um, and talks about having a, uh, reflect response that he has with this firearm and tries to mitigate that in certain ways. So that's really the context that the court is viewing this, um, to determine that, you know, this act occurred of reckless conduct. There was a prior simple assault involving the same circumstances. These things are an ongoing pattern of abuse, and this plaintiff's safety is at risk. There's a credible present threat. Um, so, so the Other two ways we can resolve this case, you're about to The other two ways. Sure. The other way, which I think, um, justice Donovan you, uh, alluded to earlier would be that under the, uh, abuse definition, the court may consider evidence of such acts regardless of proximity in time, such as the simple assault here, which in combination with the recent reckless conduct ref reflects an ongoing pattern, um, of abuse. And then the other way is that this reckless conduct itself, you know, did target the victim. Anybody could have walked into that room at any moment in time, um, when the defendant was highly intoxicated with a loaded firearm. And so it's rec, it's a reckless act by its nature. It doesn't necessarily need a, a target, uh, because it's reckless itself and everyone in that home is at risk. And I would just point that the acts, um, in the Innu, some of the enumerated acts in, in addition to animal cruelty, that would be an act directed at an animal. There's also destruction of property that has been in the statute for longer than the animal cruelty part. Uh, and therefore the, the legislature has contemplated that some of these acts can be directed at other things or other animals and still be an act that could constitute abuse under the statute. Uh, the relief that was, uh, issued is, was well within the court's dis discretion, and we ask that this court uphold the trial court's decision, um, and affirm it. Thank you. Thank you very much. The case.