L.C. v. W.C.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Portsmouth Family Division
No. 2020-0515

L.C.

v.

W.C.

Argued: April 28, 2021
Opinion Issued: July 15, 2021

New Hampshire Legal Assistance, (Chelsie Amanda Rommel and Mary
Krueger on the brief, and Ms. Krueger orally), for the plaintiff.

Reid Law, PLLC, of Concord (Thomas Reid on the brief and orally), for the
defendant.
MACDONALD, C.J. The defendant, W.C., appeals a domestic violence
final order of protection issued by the Circuit Court (Pendleton, J.). See RSA
173-B:5 (Supp. 2020). On appeal, the defendant argues that the evidence was
insufficient to support a finding that his conduct constituted a credible,
present threat to the safety of the plaintiff, L.C., because one of the incidents of
abuse upon which the trial court relied was directed at her aunt. The
defendant also argues that the trial court unsustainably exercised its
discretion by issuing protective orders that were broader than necessary to
bring about cessation of the abuse. We affirm.
I. Facts

The relevant facts follow. The parties are married. The plaintiff filed the
domestic violence petition in September 2020, alleging that the defendant had
engaged in three incidents that constituted a credible, present threat to her
safety. The first incident, in October 2019, consisted of a text message from
the defendant to the plaintiff, in which he called her a “back-country bitch” and
threatened to break her jaw. According to the plaintiff, the defendant sent the
text message when she woke him up after he had “passed out” on the couch
“from drinking too much.”

The second incident occurred on Thanksgiving 2019 when, after drinking
to the point of significant impairment, the defendant sought to prevent the
plaintiff from entering the parties’ residence by using his body to slam the door
into her, bruising her leg significantly. When the plaintiff finally entered the
residence, she found the defendant standing with a loaded gun in his hand.

The third incident occurred in August 2020 when the defendant, after
again drinking to the point of impairment, pointed a loaded gun at the
plaintiff’s aunt, who was staying with the parties that summer. The parties’
teenage grandson, over whom they have a guardianship, was also home at the
time. The plaintiff was not home, but upon returning and learning what had
happened, she became frightened. She removed the gun from the defendant
while he was passed out on the couch and then left the house with her aunt to
call the police.

Following trial, the trial court granted the plaintiff’s request for a
domestic violence final order of protection. As to the Thanksgiving 2019
incident, the court found that the plaintiff established by a preponderance of
the evidence that the defendant engaged in simple assault by knowingly
causing unprivileged contact with her. As to the August 2020 incident, the
court found by a preponderance of the evidence that the defendant engaged in
reckless conduct that placed or may have placed another in danger of serious
bodily injury.

Having found that the defendant engaged in two predicate criminal acts,
the court then concluded that his conduct posed “an ongoing credible threat”
to the plaintiff’s safety, explaining:

[The defendant] indicated he carries a loaded firearm on his person
almost at all times. He acknowledged that a person who is
intoxicated should not have access to a loaded fire arm. He
acknowledged that some people when intoxicated may act
recklessly. In this case he did act recklessly. His actions placed
everyone in the house while he was severely intoxicated with a
loaded firearm [on his person] at significant risk of physical harm.

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Moreover, the court observed, the August 2020 incident placed the plaintiff “in
great fear.”

The court concluded that the risk of harm to the plaintiff from the
defendant’s conduct was ongoing based upon evidence of his habit of drinking
to excess, handling loaded firearms, and engaging in threatening behavior. The
court noted that the defendant “continued to drink after the November 28,
2019 incident” and “after the two month hospitalization [in May and June
2020] for alcohol related medical issues, from which he nearly died.” The court
also observed that both the Thanksgiving 2019 incident and the August 2020
incident involved the defendant’s “threatening and assaultive behavior with a
firearm within one year.” The court found that the defendant’s “other related
behavior,” such as calling the plaintiff “a bitch, accusing her of having affairs
or texting aggressively,” occurred within approximately the same one-year
period and were related to the defendant’s habitual, excessive drinking.

Based upon this evidence, the court expressed concern that unless it
issued a domestic violence final protective order, “the Defendant may continue
to drink while in possession of firearms” and engage in further “threatening
and assaultive behavior with a firearm.” Although the defendant claimed to
have stopped drinking alcohol in August 2020, the court found that he
“continues to pose a threat and . . . is likely to continue to do so at least until
he can establish a period of sustained sobriety.”

The trial court, therefore, found, by a preponderance of the evidence,
that “abuse” within the meaning of RSA chapter 173-B had occurred and that
the defendant’s conduct posed a credible, present threat to the plaintiff’s
safety. Accordingly, the trial court issued a domestic violence final order of
protection for a 12-month period. In addition to precluding the defendant from
committing any further acts of abuse and requiring him to relinquish his
firearms, the order prohibits him from having any contact with, or being within
300 feet of, the plaintiff and awards her the exclusive use and possession of the
parties’ residence. The defendant unsuccessfully moved for reconsideration,
and this appeal followed.

II. Analysis

To obtain relief under RSA chapter 173-B, the plaintiff must show
“abuse” by a preponderance of the evidence. Achille v. Achille, 167 N.H. 706,
716 (2015). RSA 173-B:1, I, defines “abuse” as “the commission or attempted
commission” by “a family or household member or by a current or former
sexual or intimate partner” of one or more specified criminal acts “where such
conduct is determined to constitute a credible present threat to the [plaintiff’s]
safety.” RSA 173-B:1, I (Supp. 2020). Such abuse may include “[a]ssault or
reckless conduct as defined in RSA 631:1 through RSA 631:3.” RSA 173-B:1,
I(a). Thus, before issuing a domestic violence final order of protection under

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RSA chapter 173-B, a trial court must find by a preponderance of the evidence
that: (1) the defendant, “a family or household member or . . . a current or
former sexual or intimate partner” of the plaintiff, committed or attempted to
commit one or more of the enumerated criminal acts; and (2) the defendant’s
conduct constituted “a credible present threat” to the plaintiff’s safety. RSA
173-B:1, I; see Achille, 167 N.H. at 716.

The defendant first argues that the evidence was insufficient to support a
finding that his conduct constituted a credible, present threat to the plaintiff’s
safety because one of the incidents upon which the trial court relied was
directed at her aunt. He concedes that his conduct during the August 2020
incident “constituted an act of reckless conduct,” but asserts that it was not
“abuse” under RSA 173-B:1, I, because it was not directed at the plaintiff.

Addressing this argument requires that we engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo.
Walker v. Walker, 158 N.H. 602, 605 (2009). We first examine the language of
the statute, and, where possible, we ascribe the plain and ordinary meanings
to the words used. Id. When the language of a statute is clear on its face, its
meaning is not subject to modification. Id. We will neither consider what the
legislature might have said nor add words that it did not see fit to include. Id.

The plain language of RSA 173-B:1, I, does not require the specified
criminal conduct to be directed at the plaintiff. Indeed, the statute provides
that the commission or attempted commission of “[c]ruelty to animals as
defined in RSA 644:8” may constitute “abuse.” RSA 173-B:1, I(h). The statute
requires only that the conduct be “determined to constitute a credible present
threat to the [plaintiff’s] safety.” RSA 173-B:1, I. As the plaintiff reasons, if an
act of cruelty to an animal can pose a credible, present threat to a plaintiff’s
safety, then an act directed at a plaintiff’s aunt can also pose such a threat.
See RSA 173-B:1, I(e) (identifying “[d]estruction of property as defined in RSA
634:1 and RSA 634:2” as a criminal act that may constitute “abuse”).

The defendant argues that because RSA chapter 173-B “is designed to
protect persons from Domestic Violence” and because RSA 173-B:5, I, allows a
court to order relief “[u]pon a showing of abuse of the plaintiff,” it is only
“logical” to conclude that an act directed at someone other than the plaintiff is
not “abuse” under RSA 173-B:1, I. RSA 173-B:5, I (emphasis added). We
disagree. Although relief under RSA 173-B:5, I, requires a showing of “abuse of
the plaintiff,” as defined by the statute, “abuse” means that the defendant
committed or attempted to commit one or more of the enumerated criminal
acts where such conduct poses a credible, present threat to the plaintiff’s
safety. As the trial court explained, “Abuse in the home can create a
circumstance where the physical abuse may not target the specific individual
but the actions still place[] the Plaintiff in fear for her physical safety, and that
abuse may pose a credible risk to the [plaintiff’s] physical safety.” In sum, we

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conclude that RSA 173-B:1, I, does not require that the plaintiff be the direct
target of the statutorily-enumerated predicate offenses, but requires only that
the defendant commit or attempt to commit one or more of those offenses and
that the defendant’s conduct pose a credible, present threat to the plaintiff’s
safety.

At oral argument, the defendant relied upon Seufert v. Seufert to argue
for a contrary conclusion. See Seufert v. Seufert, 141 N.H. 766, 767-68 (1997).
His reliance is misplaced. In that case, we construed the 1994 version of RSA
chapter 173-B, which defined “abuse” as the occurrence of certain enumerated
acts “between family or household members or current or former sexual or
intimate partners,” and excluded “minor children who reside with the
defendant” from the definition of “family or household members.” RSA 173-
B:1, I (1994) (amended 1999, 2010, 2014), II (1994) (amended 1999) (emphasis
added); see Seufert, 141 N.H. at 767-77. It was in the context of the 1994
version of the statute that we concluded that “the defendant’s acts against the
[plaintiff’s] son cannot, in and of themselves, constitute ‘abuse’ under the
domestic violence statute” and that “[t]he defendant’s abuse of the plaintiff’s
son cannot substitute for the abuse required by the statutory scheme.”
Seufert, 141 N.H. at 767, 768.

To the extent that the defendant contends that “the specific conduct of
pointing a firearm in the direction of [the plaintiff’s aunt] could not be found to
have constituted a threat to the safety of [the plaintiff]” because the plaintiff
“was not even present in the residence, let alone in any type of danger to her
safety” when the incident occurred, we disagree. The relevant inquiry was not
whether the plaintiff was in danger at the exact moment the defendant pointed
a gun at her aunt’s face. Rather, the proper inquiry was whether the
defendant’s criminal conduct during the August 2020 and Thanksgiving 2019
incidents constituted a credible, present threat to the plaintiff’s safety. See
RSA 173-B:1, I (allowing the court to consider evidence of a defendant’s
criminal acts “regardless of their proximity in time to the filing of the petition,
which, in combination with recent conduct, reflects an ongoing pattern of
behavior which reasonably causes or has caused the [plaintiff] to fear for his or
her safety or well-being”).

The defendant next argues that the trial court unsustainably exercised
its discretion by issuing protective orders that were broader than necessary to
cause the abuse to cease. See RSA 173-B:5, I (“Upon a showing of abuse of the
plaintiff by a preponderance of the evidence, the court shall grant such relief as
is necessary to bring about the cessation of abuse.”). According to the
defendant, to “bring about the cessation of the abuse,” id., the only protective
orders necessary would require him to relinquish his firearm, abstain from
alcohol and, possibly, undergo treatment for alcoholism. He contends that
requiring him to leave the parties’ home and prohibiting him from contacting
the plaintiff or from being within 300 feet of her are unnecessary and that the

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trial court unsustainably exercised its discretion by issuing protective orders
with these requirements and prohibitions.

We review the trial court’s decision to grant relief under RSA 173-B:5
under our unsustainable exercise of discretion standard. See In the Matter of
Martel & Martel, 157 N.H. 53, 63 (2008). This standard of review means that
we review only whether the record establishes an objective basis for the trial
court’s discretionary judgments. See Osman v. Lin, 169 N.H. 329, 336 (2016).
Under our unsustainable exercise of discretion standard, “[o]ur task is not to
determine whether we would have found differently, but only to determine
whether a reasonable person could have reached the same decision as the trial
court on the basis of the evidence before it.” Id. (quotations omitted). Based
upon our review of the record, we conclude that a reasonable person could
have reached the same result as the trial court. See id. at 336-39.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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