M.F. v. J.G.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0452, M.F. v. J.G., the court on January
25, 2024, 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, J.G., appeals the order of the Circuit Court
(Foley, R., approved by Ashley, J.), following a hearing, granting a domestic
violence final order of protection to the plaintiff, M.F. See RSA 173-B:5 (2022).
He argues that the trial court erred by: (1) not dismissing the petition when the
hearing was not held within thirty days; and (2) violating Part 2, Article 78 of
the State Constitution. We affirm.

The plaintiff filed her petition on April 17, 2023, and the court issued
temporary orders of protection. On April 20, 2023, the self-represented
defendant requested a hearing on the temporary orders within three to five
business days. See RSA 173-B:4, I (2022) (requiring court upon defendant’s
request to schedule a hearing on temporary orders within three to five business
days). The trial court scheduled the hearing for April 26, 2023. On April 25,
2023, the defendant, now represented by counsel, moved to continue the April
26, 2023 hearing, asserting that the petition served upon the defendant was
missing a page of the plaintiff’s narrative allegations, that the defendant needed
more time to prepare for the hearing, and that his counsel had a scheduling
conflict. The defendant requested that the hearing be rescheduled “for the next
available date.” The court granted the motion the same day, “[u]pon the
conditions that the Temporary Order remains in effect and that Defendant
waives all timeliness deadlines.” The court rescheduled the hearing for June 8,
2023.

On May 2, 2023, after receiving the hearing notice, the defendant moved
for a hearing within thirty days, asserting that he “did not waive timeliness
deadlines,” and that, pursuant to RSA 173-B:3, VII(a) (2022), the court must
hold the hearing within thirty days of the date the petition was filed, i.e., by
May 17, 2023. The court denied the motion, referencing its April 25 order
regarding the timeliness deadlines. After the June 8 hearing, the court granted
the plaintiff a final order of protection. On July 7, 2023, the court denied the
defendant’s motion for reconsideration, and this appeal followed.

Relying upon McCarthy v. Wheeler, 152 N.H. 643 (2005), the defendant
argues that the trial court erred by not dismissing the domestic violence
petition when the hearing was not held within thirty days, as required by RSA
173-B:3, VII(a). In McCarthy, we held that the court’s failure to hold a
domestic violence hearing within the statutory time limits “must result in
dismissal of the domestic violence petition, unless the delay was caused or
requested by the defendant.” McCarthy, 152 N.H. at 646. In this case, the
record supports the trial court’s implicit finding that the delay was caused or
requested by the defendant. After initially requesting an expedited hearing, the
defendant sought a continuance, requesting that the hearing be rescheduled
“for the next available date.” Although the defendant argues that he “never
explicitly agreed to waive the statutory mandate,” we conclude that he
implicitly waived the statutory time requirements by requesting a continuance
“for the next available date,” without any limitation or reference to RSA 173-
B:3, VII(a). See McCarthy, 152 N.H. at 645 (noting that statutory time limits
apply “absent waiver”).

The defendant next argues that the trial court violated Part 2, Article 78
of the State Constitution because, he argues, the presiding referee in his case,
a retired circuit court judge who had reached the age of 70 and was age-
disqualified from serving as a judge, nevertheless “ma[de] himself the final
arbiter” by “leav[ing] out crucial information” in his recommendation to the
reviewing judge such that the judge was “not apprise[d] . . . of [the] pertinent
facts of the underlying case,” including the plaintiff’s alleged “perjury.” The
record does not support the defendant’s argument that the court violated Part
2, Article 78 of the State Constitution. RSA 493-A:1-a (Supp. 2023) specifically
provides that a judge who has reached the age of 70 and is eligible to serve as a
judicial referee “may be assigned to take testimony, receive and review
evidence, and make recommendations for findings of fact and conclusions of
law,” which “shall be approved by a justice in regular active service.” RSA 493-
A:1-a, II. “The judge approving such recommendations shall certify that he or
she has read the recommendations and agrees that the judicial referee has
applied the correct legal standard to the facts determined by the judicial
referee.” Id. The defendant has failed to demonstrate that the procedures
employed in his case did not comply with RSA 493-A:1-a or that the court
violated Part 2, Article 78 of the State Constitution.

Affirmed.

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

Timothy A. Gudas,
Clerk

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