Alan Armstrong & a. v. Maria Giakoumakis & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0191, Alan Armstrong & a. v. Maria
Giakoumakis & a., the court on October 10, 2019, issued the
following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The defendants, Maria Giakoumakis and Paul Foden, appeal the order of
the Superior Court (Messer, J.) finding them to be in contempt of the court’s
November 7, 2017 order permanently enjoining them from docking a boat over
the extended property line between their property and the property of the
plaintiffs, Alan Armstrong and George Armstrong.

The court’s November 7 order barred the defendants “from docking a
boat in any location that would result in any portion of the boat resting over
the extended property line with the [plaintiffs].” The defendants appealed that
order, and we affirmed. See Alan Armstrong & a. v. Maria Giakoumakis & a.,
No. 2018-0014, 2018 WL 5839185 (N.H. Oct. 26, 2018).

The plaintiffs moved for contempt, asserting that the defendants had
violated the court’s November 7 order on numerous occasions. At the
contempt hearing, the plaintiffs presented testimony and photographs showing
that, on several occasions after the court issued its November 7 order, the
defendants’ boat was positioned alongside their dock over the plaintiffs’
extended property line. The defendants did not dispute that the photographs
depicted their boat positioned on the plaintiffs’ side of the dock. They argued,
however, that by anchoring their boat to the bottom of the lake with ropes and
cinder blocks, rather than “tying up at the dock,” they were not “docking a
boat” over the extended property line in violation of the court’s order.
Following the contempt hearing, the court ruled that the defendants’ position
“violated both the express language and the spirit of the Court’s order.” The
court found the defendants to be in contempt of the November 7 order and
ordered them to pay a $200 fine to the plaintiffs.

On appeal, the defendants argue that the trial court misconstrued the
November 7 order, and again argue that by anchoring their boat next to the
dock, rather than tying it to the dock, they were not “docking” their boat in
violation of the court’s order.
 “The contempt power is discretionary and the proper inquiry is not
whether we would have found the respondent in contempt, but whether the
trial court unsustainably exercised its discretion.” In the Matter of Conner &
Conner, 156 N.H. 250, 253 (2007) (quotation omitted). To establish that the
trial court erred under this standard, the defendants must show that the
court’s ruling was clearly untenable or unreasonable to the prejudice of their
case. Id. at 252. The trial court’s discretion in civil contempt proceedings
extends to the fashioning of a remedy that is remedial, coercive, and for the
benefit of the complaining party. See In the Matter of Kosek & Kosek, 151 N.H.
722, 727-28 (2005).

Webster’s Third New International Dictionary defines the verb “dock” to
mean “to haul or guide (as a ship) into a dock (as for repairing, cleaning, or
loading),” and “to come or go into dock.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 665 (unabridged ed. 2002). Thus, docking a
boat, by definition, does not necessarily require physically tying a boat to a
dock. Furthermore, we conclude that the defendants could not have
reasonably believed that the November 7 order allowed them to position their
boat over the extended property line so as to obstruct the plaintiffs’ use of their
shorefront to the same extent that tying the boat to the dock at that location
would obstruct the plaintiffs’ use. Accordingly, we find no error in the court’s
contempt order. See In the Matter of Conner, 156 N.H. at 252.

The defendants’ remaining arguments, which challenge the November 7,
2017 order on its merits, are beyond the scope of this appeal. See Sup. Ct. R.
24; Carleton, LLC v. Balagur, 162 N.H. 501, 506 (2011) (decision becomes final
once mandate issues).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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