E.D. v. J.N.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0071, E.D. v. J.N., the court on September
6, 2022, issued the following order:

Having considered the brief and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The
defendant, J.N., appeals the decision of the Circuit Court (Mace, J.), following a
hearing, granting a domestic violence final order of protection to the plaintiff,
E.D. See RSA 173-B:5 (2022). The defendant argues that the evidence was
insufficient to support the order or the trial court’s findings on reconsideration.
We affirm.

We review sufficiency of the evidence claims as a matter of law, and
uphold the findings and rulings of the trial court unless they are lacking in
evidentiary support or erroneous as a matter of law. Achille v. Achille, 167
N.H. 706, 715 (2015). We view the evidence in the light most favorable to the
prevailing party. Smith v. Pesa, 168 N.H. 541, 544 (2016).

To be entitled to a domestic violence final order of protection, the plaintiff
must establish, by a preponderance of evidence, that the defendant engaged in
“abuse.” RSA 173-B:5, I. “Abuse” means the commission or attempted
commission of one or more enumerated crimes by a family or household
member or a current or former sexual or intimate partner when such conduct
“constitute[s] a credible present threat” to the plaintiff’s safety. RSA 173-B:1, I
(2022); see S.C. v. G.C., 175 N.H. ___, ___ (May 11, 2022) (slip op. at 4). The
enumerated crimes that may constitute abuse include “[d]estruction of
property as defined in . . . RSA 634:2” (criminal mischief), and “[h]arassment as
defined in RSA 644:4.” See RSA 173-B:1, I.

The trial court found that the defendant committed criminal mischief and
harassment when he “intentionally damaged the former marital homestead
after the court awarded the property to [the] plaintiff, intentionally left his feces
in toilets in the house mixed with [a] cut-up photograph of [the] plaintiff, [and]
allowed the children to draw a crude image of the plaintiff on a wall of her
house and then drew or permitted other adults to draw violent images thereon
such as a noose and blood near ‘her’ throat.” In moving for reconsideration,
the defendant argued that, because the plaintiff had not entered the marital
home between “Christmas, 2019,” and October 3, 2021, she was unable to offer
any evidence that he committed such acts after July 26, 2021, the date of the
court’s final divorce decree awarding the marital residence to the plaintiff. In
its order denying the defendant’s motion, the court noted that it was “beyond
dispute” that the defendant engaged in the conduct at issue, or permitted
others to do so, after the court issued its anti-hypothecation order at the start
of the parties’ divorce case.

On appeal, the defendant argues that he received an anti-hypothecation
“notice,” not an order, and that he did not violate any orders contained in the
notice. See Land America Commonwealth Title Ins. Co. v. Kolozetski, 159 N.H.
689, 690 (2010) (anti-hypothecation order enjoins parties from, among other
things, transferring, encumbering, or disposing of marital property while
marital proceedings are pending). In particular, he argues that the notice did
not require him “to keep the home in good repair until the final order” was
issued in the divorce case. The “notice” specifically “restrained” each party
“from selling, transferring, encumbering, hypothecating, concealing or in any
manner whatsoever disposing of any property . . . belonging to either or both
parties except” under certain defined circumstances. See RSA 458:16-b (2018)
(restraining orders regarding property in marital cases). Regardless of whether
the defendant received an “order” or a “notice,” or whether by damaging or
removing property from the marital homestead, he violated the restraining
order contained in it, the trial court found that he engaged in the conduct after
the court issued it, which was on or about October 7, 2019, while the parties
were still married.

The plaintiff testified that when she entered the marital home on October
3, 2021, she found that the defendant had damaged the property and removed
a number of fixtures and appliances. The defendant testified that, “[a]s far as
the contents of the house, I was asked to get my stuff and leave and that is
what I did,” insisting that, “I paid for every single item in that house.”
RSA 458:16-a defines marital property to include “all tangible and intangible
property and assets, real or personal, belonging to either or both parties,
whether title to the property is held in the name of either or both parties.”
RSA 458:16-a, I (Supp. 2021); In the Matter of Merrill & Merrill, 174 N.H. 195,
197 (2021). Whether or not the defendant paid for “every single item” in the
house, the marital residence, together with its fixtures and appliances,
constituted marital property in which both parties had an interest. See RSA
458:16-a, I.

The criminal mischief statute provides, in relevant part, that “[a] person
is guilty of criminal mischief who, having no right to do so nor any reasonable
basis for belief of having such a right, purposely or recklessly damages the
property of another.” RSA 634:2, I (Supp. 2021). Pursuant to RSA 634:2, IV
(2016), the term “property of another” has the same meaning as in RSA 637:2,
IV (2016), which defines the term to include “property in which any person
other than the actor has an interest which the actor is not privileged to
infringe, regardless of the fact that the actor also has an interest in the
property.” RSA 637:2, IV. We conclude that the evidence was sufficient to
show that between October 7, 2019 and October 3, 2021, the defendant,

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“having no right to do so nor any reasonable basis for belief of having such a
right, purposely or recklessly damage[d] the property of another,” namely, the
marital residence in which the plaintiff had an interest, thereby committing
criminal mischief. See RSA 634:2, I.

The defendant next argues that neither the cut up photograph and feces
in the toilet nor the depiction of the plaintiff on the wall were sufficient to show
harassment under RSA 644:4. A person who “[i]nsults, taunts, or challenges
another in a manner likely to provoke a violent or disorderly response” commits
the act of harassment under RSA 644:4, I(c) (Supp. 2021). The trial court
found that the defendant “conceded he cut up a wedding photograph of [the
plaintiff], placed it in an old toilet he installed in the former marital
home . . . defecated on the cut up photograph, and then left the cut up
photograph and feces for [the plaintiff] to find when she resumed occupancy of
the former [marital] residence.” The court found it “hard to imagine conduct
more likely to ‘insult’ a reasonable person and equally hard to image that any
reasonable person would not react in a ‘violent’ or ‘disorderly’ manner upon
discovery of that person’s image cut up and covered in feces clearly left as a
message by the offending actor.” We conclude that the evidence was sufficient
to support the court’s finding of harassment under RSA 644:4, I(c).

The defendant next argues that if the conduct occurred as early as
October 7, 2019, when he received the anti-hypothecation notice, then it was
too remote in time to constitute a credible threat to the plaintiff’s safety. “The
court may consider evidence of such 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
petitioner to fear for his or her safety or well-being.” RSA 173-B:1, I.
Regardless of exactly when the defendant engaged in the described conduct,
the evidence supports the court’s finding that he intentionally “left the cut up
photograph and feces for [the plaintiff] to find when she resumed occupancy of
the former [marital] residence,” which was on or about October 3, 2021, two
days before she filed the domestic violence petition. The plaintiff described the
defendant’s conduct as “over the top” and “sick,” and she was afraid that he
was “going to snap.” Under these circumstances, we conclude that the
defendant’s conduct “reflect[ed] an ongoing pattern of behavior which
reasonably causes or has caused the [plaintiff] to fear for . . . her safety or well-
being.” RSA 173-B:1, I.

Finally, the defendant argues that neither the photograph in the toilet
nor the drawing on the wall represented an ongoing, credible threat to the
plaintiff’s physical safety. See Knight v. Maher, 161 N.H. 742, 745-46 (2011).
We disagree. The trial court found that the drawing depicted the plaintiff with
a “noose near the throat area” and blood near her throat. The trial court was
not required to accept the defendant’s testimony that he was unaware of the
drawing until the first day of the domestic violence hearing. See In the Matter

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of Aube & Aube, 158 N.H. 459, 466 (2009) (The trial court, as fact finder, may
accept or reject, in whole or in part, the testimony of any witness or party.).

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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