K.T. v. M.K.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0418, K.T. v. M.K., the court on March
22, 2022, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, K.T., appeals a Circuit Court (Gleason, J.) order denying her request
for a further extension of the stalking final protective order entered against the
defendant, M.K. See RSA 633:3-a, III-c (2016). We affirm.

The following facts either were found by the trial court or reflect the
content of documents in the appellate record. The parties are next-door
neighbors who share a driveway with a third property. The common driveway
is the only means of access to each respective property.

The parties filed stalking petitions against each other in 2007. The trial
court granted the plaintiff a stalking temporary order of protection in November
of that year. On January 24, 2008, the trial court entered a stalking final order
of protection incorporating the parties’ stipulation resolving the matter.
Since then, the parties have engaged in approximately four civil suits and three
New Hampshire Supreme Court appeals (not including this appeal). The
plaintiff obtained a one-year extension of the order of protection in 2009, a five-
year extension in 2010, and another five-year extension in 2015.

The instant appeal concerns the plaintiff’s 2019 motion for a further
extension of the stalking order of protection. The plaintiff alleged that the
extension was “necessary to protect [her] and her family from harassment,
intimidation, threats and physical confrontation by [the defendant], who, while
acting inappropriately, has at least been somewhat restricted by the existence
of the Stalking Order.” She alleged that, although the defendant’s “current
conduct stays just shy of violating the [existing] order,” if the order were not in
place, his “conduct would undeniably increase and worsen” and “there would
be nothing to deter [him] from crossing that line.” The defendant objected to
the plaintiff’s motion, asserting that she was not entitled to relief because she
had failed to demonstrate “that there is still concern for her safety and well-
being,” “that she has any present, reasonable fear of [him],” and “that without
the protective order, her safety and well-being will be in jeopardy.”

In May 2021, after holding an approximately 90-minute evidentiary
hearing on the plaintiff’s motion, the trial court denied it, ruling that, based
upon its assessment of the parties’ credibility, the plaintiff had failed to
establish good cause to extend the protective order.1 In response to the
plaintiff’s subsequent unsuccessful motion to reconsider, the court explained:
“[T]he Court was able to observe the demeanor, the forthcoming nature, and
credibility of each witness. The Plaintiff . . . offered no credible testimony to
support a further extension of the Final Protective Order issued by the Court.”
This appeal followed.

On appeal, the plaintiff first argues that the trial court denied her due
process by allowing her attorney only 45 minutes of the approximately 90-
minute hearing to make her case, instead of allowing her one-half of a full-day
hearing as she had expected given the court’s July 2020 order. Because the
plaintiff does not cite the State Constitution, we limit our analysis to the
Federal Constitution. See State v. Dellorfano, 128 N.H. 628, 632-33 (1986).

Procedural due process requires that parties whose rights are affected
have “the opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted).
Thus, “[l]itigants enjoy a due process right to fully and fairly litigate each issue
in their case.” Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1217
(11th Cir. 2017) (quotation omitted). “The ultimate standard for judging a due
process claim is the notion of fundamental fairness.” State v. Veale, 158 N.H.
632, 637 (2009) (quotation omitted).

The record on appeal demonstrates that on April 26, 2021,
approximately two weeks before the scheduled May 11 hearing, the parties and
their attorneys were notified of the time, date, location, and duration of the
hearing. The notice also gave the parties and their attorneys information about
how to request that the hearing be continued and of the consequences for
failing to appear at the hearing.

As noticed, the court held an in-person hearing of approximately 90
minutes on the plaintiff’s motion, attended by the parties and their counsel.
The plaintiff’s attorney presented evidence at the hearing on the plaintiff’s
behalf, including the plaintiff’s testimony, exhibits, and offers of proof. The
plaintiff’s attorney also presented argument on the plaintiff’s behalf and cross-
examined the defendant’s two witnesses. These procedures afforded the
plaintiff an “opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews, 424 U.S. at 333 (quotation omitted). We conclude,
therefore, that her federal constitutional right to due process was not violated.

1 In July 2020, the court issued an order asking the clerk of court to “specially assign, as the

docket permits, a full day for an in-person hearing on Plaintiff’s Motion to Renew Stalking Order.”
On April 26, 2021, the court notified the parties that the in-person hearing would take place on
May 11 and would last 90 minutes.

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 The plaintiff next asserts that the trial court unsustainably exercised its
discretion and/or committed reversible error in failing to grant her motion to
extend the protective order in light of “the totality of the [defendant’s] multiple
acts of harassment.” She asserts that “in the five years preceding the renewal
request, [the defendant] was relentless as ever in his efforts to engage with [the
plaintiff] despite the stalking order that prevented contact.”

RSA 633:3-a, III-c allows a trial court to extend a final stalking order of
protection initially for one year and, thereafter, for up to five years upon a
showing of good cause. See RSA 633:3-a, III-c. To determine whether good
cause exists to extend a protective order, the trial court must assess whether
the current conditions are such that there still exists a concern for the safety
and well-being of the plaintiff, after reviewing the circumstances of the original
stalking, any violation of the protective order, and any present and reasonable
fear of the plaintiff. MacPherson v. Weiner, 158 N.H. 6, 10 (2008). The trial
court is in the best position to view the current circumstances, as well as the
defendant’s prior acts, and determine whether an extension is necessary for the
safety and well-being of the plaintiff. Id. at 11.

We interpret the plaintiff’s argument to be that the evidence was
insufficient to support the trial court’s decision. We review such claims as a
matter of law and uphold the findings and rulings of the trial court unless they
lack evidentiary support or are tainted by error of law. Id. at 10. We accord
considerable weight to the trial court’s judgments on the credibility of
witnesses and the weight to be given testimony. Id.

The plaintiff argues that, in addition to “forc[ing] contact with her
through court appearances” as a result of his lawsuits against her and his New
Hampshire Supreme Court appeals, the defendant has “continued to use his
trees as a means to harass her” by failing to trim them as required by a prior
court order. She also contends that a DigSafe employee and a tree trimmer
both “entered onto [her] property to perform work for [the defendant] without
any notice to [the plaintiff] and without [her] permission.” The plaintiff
observes that she testified that, if the stalking order were not in place, she is
afraid that the defendant would physically harm her. She also observes that
she testified that she has felt afraid in the five years preceding her motion
because the defendant has trimmed his trees and “do[ne] his weed whacking”
within five feet of her property boundary and because she once saw him using
a flashlight “behind [her] fence from his property” at 10:00 p.m.

The defendant counters that “to the extent [he] utilized the judicial
system to resolve disputes with [the plaintiff], doing so was constitutionally
protected activity,” and, therefore, does not constitute a “course of conduct”
within the meaning of the stalking statute. See RSA 633:3-a, II(a) (2016).
Assuming without deciding that such litigation could constitute stalking, we

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conclude that the trial court reasonably decided that it did not constitute “good
cause” to extend the protective order in this case. See MacPherson, 158 N.H.
at 10-11.

With regard to the other incidents about which the plaintiff submitted
evidence, the defendant correctly observes that his evidence conflicted with the
plaintiff’s evidence. Any conflicts in the evidence were for the trial court to
resolve. See id. at 10. As the fact finder, the trial court was not required to
believe even uncontroverted evidence. In the Matter of Henry & Henry, 163
N.H. 175, 181 (2012). Accordingly, the plaintiff has failed to demonstrate that
the trial court unsustainably exercised its discretion and/or committed
reversible error when it declined to extend the protective order. We have
reviewed the plaintiff’s remaining appellate argument, and conclude that it
lacks merit and warrants no further discussion. See Vogel v. Vogel, 137 N.H.
321, 322 (1993).

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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