K.C. v. M.C.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0205, K.C. v. M.C., the court on November
29, 2022, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, M.C. (husband), appeals the decision of the
Circuit Court (Cross, J.), following a hearing, granting a domestic violence final
order of protection to the plaintiff, K.C. (wife). See RSA 173-B:5 (2022). The
husband argues that the evidence was insufficient to support the court’s order.
We affirm.

To be granted 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. 158, 163 (2022). The enumerated crimes
that may constitute abuse include “[c]riminal threatening as defined in RSA
631:4.” See RSA 173-B:1, I.

The trial court’s “findings of facts shall be final, but questions of law may
be transferred from the circuit court to the supreme court.” RSA 173-B:3, VI
(2022). We review sufficiency of the evidence claims as a matter of law,
upholding the trial court’s findings and rulings unless they lack evidentiary
support or are tainted by legal error. S.C., 175 N.H. at 162. We defer to the
trial court’s judgments as to the credibility of the witnesses and the weight of
their testimony. Id. at 162-63. We view the evidence in the light most
favorable to the prevailing party, here, the plaintiff. Id. at 163.

The wife testified that the parties’ marital relationship had been strained
for some time, and that they were contemplating divorce. She filed her
domestic violence petition on a Tuesday following a volatile weekend during
which the husband left “for two days” and then unexpectedly “picked [their]
daughter up from daycare and came back to the house.” Upon his return, the
husband told the wife that “this is my house, and I’m not leaving, and you can’t
take [our daughter] anywhere, and you need to stay here, and we’re going to
talk about this.” The wife testified that, “at that point, [she] didn’t feel safe
because of his past.” She asked her mother to come to the residence, and the
husband “called the police to get her [mother] removed.” She testified that
“that’s when I filed for domestic violence.”

The wife testified that the husband previously had “threatened to run off
with” their daughter. On one occasion, “he got upset, was telling [her] how he
wanted a divorce,” “grabbed [their] daughter in her stroller and started running
away.”

The wife also testified that, roughly seven months before she filed her
petition, the husband, who had “definitely” been “drinking a lot,” “grabbed his
gun,” “put . . . the gun up to [her] head and told [her] if [she] were to ever leave
or try to take his daughter away from him, he would kill [her] and [her] whole
family.” The trial court found that this conduct constituted criminal
threatening. The court acknowledged that the incident occurred approximately
seven months earlier, but found that the husband’s more recent conduct
constitutes a present credible threat to the wife’s safety because his behavior
“is unpredictable and volatile,” and the wife’s fear for her safety “appears
genuine and credible.”

In determining whether a defendant’s conduct constitutes “abuse” for
purposes of the domestic violence statute, “[t]he 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-B1, I. The mere fact that a domestic
violence victim continues to have contact with her abuser after an act of abuse
does not establish, as a matter of law, the absence of a credible present threat
to the plaintiff’s safety. See S.C., 175 N.H. at 163-165. We conclude that
evidence of the husband’s act of criminal threatening, in combination with his
later threat to take the parties’ daughter away and his conduct immediately
before the petition was filed (forbidding the wife from taking their daughter
away, and ordering her to remain in the house, reminiscent of his prior threat),
supports the trial court’s finding of an ongoing pattern of behavior which
reasonably caused the wife to fear for her safety. See id. at 163.

Affirmed.

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

Timothy A. Gudas,
Clerk

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