L.B. v. P.I.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2025-0017, L.B. v. P.I., the court on August 12,
2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The
defendant, P.I., appeals an order of the Circuit Court (Collins, J.), issued
following a hearing, granting a domestic violence final order of protection in
favor of the plaintiff, L.B. See RSA 173-B:5 (2022). We affirm.

“In an appeal from an order on a domestic violence petition, the trial
court’s ‘findings of fact shall be final,’ and we undertake de novo review of
‘questions of law.’” S.C. v. G.C., 175 N.H. 158, 162 (2022) (quoting RSA 173-
B:3, VI); see RSA 173-B:3, VI (2022). “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 tainted by error of law.”
Achille v. Achille, 167 N.H. 706, 715 (2015). “When performing this review, we
accord considerable weight to the trial court’s judgments on the credibility of
witnesses and the weight to be given testimony.” Id. at 715-16 (quotation
omitted). We view the evidence in the light most favorable to the prevailing
party — here, the plaintiff. S.C., 175 N.H. at 163.

For a court to grant a domestic violence final order of protection, the
plaintiff must establish, by a preponderance of evidence, that the defendant
engaged in “abuse.” Achille, 167 N.H. at 716; RSA 173-B:5, I. “‘Abuse’ has two
elements: (1) commission or attempted commission of one or more of the . . .
criminal acts [enumerated in RSA 173-B:1, I(a) through (h)] by a family or
household member or a current or former sexual or intimate partner; and (2) a
finding that such misconduct ‘constitute[s] a credible present threat to the
[plaintiff’s] safety.’” S.C., 175 N.H. at 163 (quoting RSA 173-B:1, I); see RSA
173-B:1, I (2022). The statute further provides that the court may consider
evidence of the enumerated criminal 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
[plaintiff] to fear for his or her safety or well-being.” RSA 173-B:1, I.

The trial court found that the defendant committed two of the crimes
enumerated in RSA 173-B:1, I: “[a]ssault or reckless conduct as defined in RSA
631:1 through RSA 631:3”, and “[i]nterference with freedom as defined in RSA
633:1 through RSA 633:3-a.” RSA 173-B:1, I(a), (d). Specifically, the trial
court found that the defendant committed simple assault, see RSA 631:2-a
(2016), and stalking, see RSA 633:3-a (Supp. 2024).

The defendant argues that the facts and testimony do not support a
finding of assault. We disagree. RSA 631:2-a provides that an individual is
guilty of simple assault if he “[p]urposely or knowingly causes bodily injury or
unprivileged physical contact to another.” RSA 631:2-a. We have defined
unprivileged physical contact as all physical contact not justified by law or
consent. State v. Woodbury, 172 N.H. 358, 368 (2019). In ruling that the
defendant committed assault, the trial court found that the defendant “slipped
his hand up the [p]laintiff’s skirt at a child exchange.”

At the hearing, the plaintiff testified that the defendant made sexual
comments towards her and “slid his hand up [her] skirt” at a parenting
exchange in July 2024. She testified that the incident was “offensive” and that
she now does parenting exchanges at the police station because she does not
“want [the defendant] touching [her] or even speaking to [her].” Although the
defendant testified that he did not put his hand up the plaintiff’s skirt, “we
accord considerable weight to the trial court’s judgments on the credibility of
witnesses and the weight to be given testimony.” Achille, 167 N.H. at 715-16
(quotation omitted). Accordingly, we cannot conclude that the trial court erred
in finding that the defendant committed simple assault against the plaintiff.

We next address the defendant’s argument that there was insufficient
evidence to support a finding that the defendant posed a credible threat to the
plaintiff’s safety. To support a finding that a credible threat to safety exists,
the plaintiff “must show more than a generalized fear for personal safety based
upon past physical violence and more recent non-violent harassment.” Id. at
716 (quotation omitted).

At the hearing, the plaintiff testified that when the parties lived together,
the defendant “would threaten to have [her] leave the house,” “threaten[] [her]
children,” “threaten to call the police,” and “punched a hole in the wall when he
was angry.” The plaintiff testified to an incident in 2022 in which the
defendant was having an anxiety attack and he “came at [her]” and put his
hands on her neck. Although the plaintiff testified that in the moment, she
was not afraid of the defendant, and told him such, she testified that in looking
back at that incident, “he’s obviously capable and willing to harm [her].”1 The
plaintiff testified that following the incident of simple assault in July 2024, she
now goes to the police station for parenting exchanges because of “the level of
harassment and constant email[s] . . . and [she does not] want [the defendant]
touching [her] or even speaking to [her],” and going to the police station is “the

1 Because of the plaintiff’s retrospective testimony about the incident, we disagree with the

defendant that the plaintiff’s testimony about her lack of fear during the incident supports that
there was no credible threat to the plaintiff’s safety.

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only thing that has stopped him from doing those things.” The plaintiff
testified that about a week before she filed the domestic violence petition, the
parties met for a parenting exchange and the defendant “came at [her] because
he was angry and had been emailing [her] that he was angry earlier in the day.”
She stated that he was “walking aggressively at [her],” and that “[i]t was scary
because it’s just never ending.” She testified that she “feel[s] like [her] nervous
system is just constantly on the fritz.”

Based upon our review of the record, we conclude that there was
sufficient evidence for the trial court to find that the plaintiff “show[ed] more
than a generalized fear for personal safety.” Achille, 167 N.H. at 716 (quotation
omitted). Accordingly, we cannot conclude that the trial court erred in
determining that the defendant represented a credible present threat to the
plaintiff’s safety.

We thus determine that the trial court did not err in finding that the
defendant engaged in “abuse” as defined by RSA 173-B:1, I. See id. Because a
finding of abuse requires the trial court to find only that the defendant
committed, or attempted to commit, one of the acts enumerated in RSA 173-
B:1, I, we need not address the defendant’s arguments as to the trial court’s
finding of stalking. See RSA 173-B:1, I.

The defendant next argues that the trial court erred by relying upon
allegations that were not stated in the petition. Specifically, he contends that
the allegations that the defendant drove by the plaintiff’s place of employment
and that he drove by honking the horn and “burning out” the tires were absent
from the plaintiff’s petition. Assuming, without deciding, that the defendant is
correct and the trial court erred, we conclude that the error is not reversible.
Rather, we agree with the plaintiff that the defendant was not prejudiced by the
trial court’s consideration of this allegation.

Finally, the defendant argues that the trial court erred in amending the
parties’ parenting plan because its order was not in the best interest of the
child. We conclude that this argument is moot. “In general, a matter is moot
when it no longer presents a justiciable controversy because the issues
involved have become academic or dead.” In the Matter of Routhier &
Routhier, 175 N.H. 6, 19 (2022). Here, after the defendant appealed the trial
court order, the parties participated in a temporary hearing in their parenting
case and received temporary parenting orders. Thus, whether the parenting
plan in the domestic violence final order of protection was in the best interest
of the child is not a justiciable controversy, as that order no longer governs the
parties’ parenting responsibilities. See id. Further, we are not persuaded by

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the defendant’s argument that because the current parenting plan refers to the
parenting plan in the domestic violence order, the issue is thus justiciable.

Affirmed.

MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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