C.B. v. A.K.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0463, C.B. v A.K., the court on February
24, 2023, issued the following order:

In accordance with this court’s order of August 25, 2022, having received
no objection from the plaintiff, no part of the file in this case is confidential.
Accordingly, the defendant’s motion to unseal is moot as to the record on
appeal. The defendant’s request that we exercise our supervisory authority to
order the trial court to unseal its case file in the underlying matter is denied.
He has not identified the parts of the trial court’s file that have been sealed or
addressed the basis for any confidentiality order issued in the trial court.

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, A.K., appeals the order of the Circuit Court
(Boyle, R., approved by Keating, J.), following a hearing, granting a domestic
violence final order of protection to the plaintiff, C.B. See RSA 173-B:5 (2022).
The defendant argues that: (1) the order is unconstitutionally vague and
overbroad, violating his right to due process; (2) the finding of harassment is
unconstitutional and unsupported by the evidence; (3) the court considered
conduct too remote in time; (4) the court’s findings were contrary to the weight
of the evidence; (5) the evidence was insufficient to support a finding that his
conduct constitutes a credible present threat to the plaintiff’s safety; and
(6) the court erroneously denied his motion for reconsideration before an
objection was filed and without issuing a narrative order. We affirm.

At the hearing, the plaintiff testified that, approximately six or seven
years earlier, the defendant “punched [her] in the mouth in front of [her]
daughter.” She testified that more recently, when the defendant temporarily
relocated to another state, there were “several instances of phone harassment.”
She testified that the defendant, since returning to this area, “has made vague
threats.” She testified that he “blows up [her] phone through phone calls [and]
text messages,” in one instance calling her phone “300 times between the
hours of 3 and 11:00.” On the day before she sought the restraining order, “he
called in excess of almost 80 times in about 30 minutes.” She also testified
that the defendant “has no reason to contact [her] phone” because “he has a
direct line of communication” with the parties’ child, and that she has asked
him to use email in any communication with her regarding the child.

The plaintiff testified that, “this last time,” the defendant “threatened to
grab one of [her children] by the effing throat.” She testified, “I’m very nervous
that it’s going to escalate to the point where he’s going to show up to my job, or
be waiting for me outside when I get out of work at night, or he’s going to be in
my driveway when I get home.” In a recent text message to the plaintiff, the
defendant stated, “This is not going to end happy for you.”

The defendant testified that the plaintiff “interfered with [his] parenting
time,” and that “all these instances where I called her phone a million times
was to get in touch with my son.” He testified that he did not recall ever hitting
the plaintiff, and that he “didn’t threaten to choke anybody.”

When the court asked the defendant if the plaintiff’s allegation that he
“repeatedly called her dozens of times within a matter of minutes” is true, he
answered, “Yes, Your Honor, it is.” The defendant also admitted that “there’s
many times where there was phone calls, lots of phone calls,” and that “there
was a couple instances where [he] had called the police to do a welfare check.”

The defendant first argues that the trial court’s temporary and final
protective orders are “unconstitutionally or impermissibly vague” and
“unconstitutionally overbroad” under “either the state or federal constitution”
because the court did not specify the type of assault or reckless conduct it
found him to have committed. He also argues that the orders violate “federal
due process” because they do not adequately describe the offense he committed
or the conduct that they prohibit.

As an initial matter, we note that, to the extent that the defendant is
challenging the temporary order, his issues are moot because the temporary
order no longer remained in effect once the court issued its final order. See
Londonderry Sch. Dist. v. State, 157 N.H. 734, 736 (2008) (explaining that a
matter becomes moot when it no longer presents a justiciable controversy). In
addition, we have held that judicial review is not warranted for complaints,
without developed legal argument, regarding adverse rulings, and that neither
passing reference to constitutional claims nor casual invocations of
constitutional rights without support by legal argument or authority warrant
extended consideration. Anna H. Cardone Revocable Trust v. Cardone, 160
N.H. 521, 526 (2010). We conclude that the defendant’s constitutional issues
are insufficiently developed to warrant review. See id.; see also In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (self-represented litigants
are bound by the same procedural rules that govern parties represented by
counsel).

Moreover, we note that the plaintiff, to obtain relief under RSA chapter
173-B, must show “abuse” by a preponderance of the evidence. S.C. v. G.C, 175 N.H. 158, 163 (2022). “Abuse” is defined in RSA 173-B:1, I, as “the
commission or attempted commission of one or more [of certain enumerated
crimes] by a family or household member or by a current or former sexual or

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intimate partner, where such conduct is determined to constitute a credible
present threat” to the plaintiff’s safety. RSA 173-B:1, I (2022).

In this case, the court found that the defendant committed “[a]ssault or
reckless conduct as defined by RSA 631:1 through RSA 631:3,” “[c]riminal
threatening as defined in RSA 631:4,” and “[h]arassment as defined in RSA
644:4.” The court made specific findings as to the defendant’s conduct
constituting such abuse. We have not held that the trial court must specify the
type of “[a]ssault or reckless conduct” that the defendant committed. Even
assuming, without deciding, that such specificity was required, we conclude
that the defendant has failed to show how he was prejudiced. See In the
Matter of Sawyer & Sawyer, 161 N.H. 11, 17 (2010) (defendant cannot prevail
on due process claim absent showing of actual prejudice). Accordingly, we find
no error. See id.

The defendant next argues that the court’s finding that he committed
harassment is “unconstitutionally or impermissibly overbroad under either the
state or federal constitution.” We conclude that the defendant’s constitutional
argument is insufficiently developed to warrant review. See Anna H. Cardone
Revocable Trust, 160 N.H. at 526. The defendant also argues that the court
erred in finding that he committed harassment by calling the plaintiff with “no
legitimate communicative purpose.” The trial court did not state that the
defendant called the plaintiff with no legitimate communicative purpose. We
note that harassment may consist of “repeated communications at extremely
inconvenient hours or in offensively coarse language with a purpose to annoy
or alarm another.” RSA 644:4, I(b) (2016). The court found that the defendant
made “repeated phone calls,” that he left “messages after being told to stop,”
that he “threatened assault,” and that he threatened to “grab someone by the
f**king throat.” The court also found that the defendant “repeatedly call[ed]
police for ‘welfare checks’ to harass [the] plaintiff.” We conclude that the
evidence was sufficient to support the court’s finding that the defendant
committed harassment as defined in RSA 644:4, I(b).

The defendant next argues that the trial court erred in finding that he
“punched [the] plaintiff in the mouth” because such conduct was too remote in
time. “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. Although the plaintiff testified that the defendant punched her in the
mouth “approximately six, seven years ago,” the trial court found that the
assault, in combination with the defendant’s recent threat that, “When I get
there I’ll grab someone by the f**king throat,” reasonably caused the plaintiff to
fear for her safety. Based upon this record, we cannot conclude that the trial
court unsustainably exercised its discretion in considering the evidence of the
assault. See In the Matter of McArdle & McArdle, 162 N.H. 482 485 (2011)

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(applying unsustainable exercise of discretion standard to trial court’s
evidentiary rulings).

The defendant also argues that the court’s finding that he assaulted the
plaintiff is contrary to the weight of the evidence. Although the defendant may
have disputed the plaintiff’s testimony, and offered contrary testimony, we have
consistently held that conflicts in testimony, questions about the credibility of
witnesses, and the weight assigned to evidence are matters for the trial court to
resolve. In the Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). We
will not disturb the trial court’s determination unless no reasonable person
could have come to the same conclusion. Id. Based upon this record, we
conclude that a reasonable person could have found that the defendant
assaulted the plaintiff. See id.

The defendant next argues that the evidence was insufficient to support
a finding that his conduct constituted a present credible threat to the plaintiff’s
safety. 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. Fisher v. Minichiello, 155
N.H. 188, 190 (2007). The trial court found that the defendant’s assault, in
combination with his recent threat, reasonably caused the plaintiff to fear for
her safety. We conclude that the evidence was sufficient to support the court’s
finding. See id.

The defendant next argues that the trial court erred in denying his
motion for reconsideration before an objection was filed and without issuing a
narrative order. “We will uphold a trial court’s decision on a motion for
reconsideration absent an unsustainable exercise of discretion.” Walker v.
Walker, 158 N.H. 602, 607 (2009) (quotation omitted). A party opposing a
motion for reconsideration need not file a written objection, see Fam. Div. R.
1.26(F), and the trial court, in ruling on reconsideration, is not required to
issue a narrative order, see In the Matter of Kamil & Kamil, 173 N.H. 424, 442
(2020). Based upon this record, we cannot conclude that the trial court
unsustainably exercised its discretion in denying the defendant’s motion for
reconsideration. See Walker, 158 N.H. at 607.

Finally, the defendant raises numerous issues regarding other cases,
both criminal and civil, which we need not address because they are beyond
the scope of this appeal. As previously noted, any issues regarding the court’s
temporary order in this case are moot. See Londonderry Sch. Dist. v. State, 157 N.H. at 736. To the extent that the defendant raises additional arguments

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in his brief, we conclude that they are inadequately developed, see State v.
Blackmer, 149 N.H. 47, 49 (2003), and warrant 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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