D.G. v. A.L., the court on November 29, 2023

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0406, D.G. v. A.L., the court on November
29, 2023, 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, A.L., appeals the order of the Circuit Court
(Cabrera, J.), following a hearing, granting a domestic violence final order of
protection to the plaintiff, D.G. See RSA 173-B:5 (2022). He argues that the
trial court erred by: (1) relying upon allegations that were not stated in the
petition; and (2) refusing to consider additional evidence submitted with his
motion for reconsideration. 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 defendant first argues that the trial court erred in finding that he
abused the plaintiff based upon allegations that were not contained in the
plaintiff’s petition. We have held that notice of the facts alleged against a
defendant must be provided in advance of the hearing on the petition. In the
Matter of Aldrich & Gauthier, 156 N.H. 33, 34 (2007); RSA 173-B:3, I (2022).
In this case, the plaintiff alleged in his petition that the defendant “follows me
home” and “plays chicken [with] excavators on a trailer” with a “1 ton stake
body tr[u]ck.” The plaintiff alleged that the defendant’s conduct “scares me
very much because he is not gonna stop it feels until someone gets hurt.” The
plaintiff alleged that he fears whether “today [is] the day I get chased into a
ditch.”

At the hearing on the petition, the plaintiff testified regarding an incident
that occurred on January 28, 2023, in which the defendant was “chasing me in
his plow truck and following me all the way home.” The plaintiff alleged that it
was “scary for me because it’s . . . the fourth time he’s done that.” The plaintiff
testified that when he turned into the driveway to his house, the defendant
“sped up with his big one-ton plow truck and . . . pretended to . . . swerve into
me.” The plaintiff testified, “I feel he’s hunting me,” and that “he’s making us
feel like . . . if we don’t move, we’re going to get hurt.”
 The trial court found that the defendant engaged in “abuse” by
“[f]ollow[ing] [the] Plaintiff in his plow truck,” and “[s]werv[ing] towards the
Plaintiff’s vehicle in his plow truck,” and that “[t]his has happened four or more
times including in January 2023.” The court found that the defendant’s
conduct constitutes a present credible threat to the plaintiff’s safety because
“[t]he plaintiff credibly testified he feels like the defendant is ‘hunting me,’” and
because “[t]he Defendant’s hostile behavior and impulsive behavior creates a
risk of a serious collision on the roadway.”

The defendant argues that the trial court’s order “is based entirely on an
allegation first made by the plaintiff at the hearing regarding an alleged
incident on January 28, 2023 involving a snowplow truck.” At the hearing, the
defendant did not object to the plaintiff’s testimony on this basis; he raised this
issue in his motion for reconsideration, which the court denied. On appeal, the
defendant argues that the allegation in the petition regarding the defendant’s
use of excavators did not provide him with adequate notice of the plaintiff’s
testimony regarding the January 2023 plow truck incident because “the
distinction between a snowplow truck and one that hauls excavators is not
insignificant,” and because the petition “provided no date or even a general
timeframe.” We are not persuaded.

The plaintiff is not required to set forth the specific dates upon which he
alleges to have been abused. In the Matter of Sawyer & Sawyer, 161 N.H. 11,
16 (2010). Moreover, even assuming that the petition and testimony referred to
two trucks used for different purposes and in different seasons, the defendant
has failed to show that he suffered any prejudice resulting from the variation
between the allegations in the petition and the hearing testimony. See id. at 17
(finding no showing of prejudice resulting from lack of specific dates absent a
time-based defense). The plaintiff alleged in his petition that the defendant
“follows” the plaintiff in a one-ton truck and “plays chicken” with him,
suggesting repeated behavior, not a one-time incident. We conclude that the
plaintiff’s petition provided adequate notice of the facts alleged against the
defendant. See Aldrich, 156 N.H. at 34; RSA 173-B:3, I.

The defendant next argues that the trial court erred when it refused to
consider additional evidence submitted with his motion for reconsideration.
The decision whether to receive additional evidence in a motion for
reconsideration rests in the sound discretion of the trial court. Lillie-Putz
Trust v. Downeast Energy Corp., 160 N.H. 716, 726 (2010). We will not disturb
the trial court’s decision unless the defendant can show that the court’s ruling
was clearly untenable or unreasonable to the prejudice of his case. Id.

In his motion for reconsideration, the defendant alleged that two months
before the plaintiff filed his petition, the plaintiff’s wife filed a domestic violence
petition against the plaintiff, and that the sworn allegations in that petition
undermine the plaintiff’s credibility. The defendant also alleged that, prior to

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the hearing, he had requested documents from the New Hampshire State Police
regarding the defendant, but had not received the plaintiff’s wife’s petition until
after the hearing. The credibility and weight to be given to a witness’ testimony
are questions of fact for the trial court. Rancourt v. Town of Barnstead, 129
N.H. 45, 50 (1986). According to the defendant, the trial court was aware of
the mother’s petition, having granted her motion to withdraw it. Based upon
this record, we cannot conclude that the trial court unsustainably exercised its
discretion in denying the defendant’s motion to submit new evidence offered in
his motion for reconsideration. See Lillie-Putz Trust, 160 N.H. at 726.

Affirmed.

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

Timothy A. Gudas,
Clerk

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