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Bar News - February 4, 2005 NH Supreme Court 3JX Orders 2003-0268 The court on December 2, 2004, issued the following order: Following a jury trial, the defendant, Barry Gallant, was convicted on two counts of conspiracy to sell a controlled drug. See RSA 629:3 (Supp. 2003); RSA 318-B:2 (2004). On appeal, he contends that the trial court erred in requiring his counsel to elect between a mistrial or curative instruction before affording a "full hearing" on whether the mistrial remedy would be with or without prejudice. We affirm. Absent an unsustainable exercise of discretion, we will not reverse a trial court’s decision on whether to hold a hearing. See State v. Roy, 138 N.H. 97, 98 (1993); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). The same standard of review applies to a trial court’s decision on a mistrial. See State v. Zwicker, 151 N.H. 179, 188 (2004). Generally, when a defendant’s request for mistrial is granted, retrial is permitted "unless the defendant, by conduct or design of the State, has been painted into a corner leaving a motion for mistrial as the only reasonable means of avoiding becoming a victim of unlawful tactics or inadmissible evidence." Id. "Whether the prosecution so intended is a matter of fact to be decided by the trial court." Id. We will assume without deciding that a mistrial without prejudice would have been warranted in this case had the defendant requested it. In response to the defendant’s objection to the testimony, the trial court offered him the option of either a curative instruction or mistrial without prejudice. The trial court found, based upon its observation of the prosecutor and witness and the way the question was posed and answered, that there had been no intentional, malicious prosecutorial misconduct. The court also received argument from both the State and the defendant about the scope of any remedy. The court polled each of the jurors individually and released one juror who was unsure whether the witness’s response would affect his consideration. The court also indicated that, if the defendant elected a mistrial, the court would hold a subsequent hearing on whether it should be granted with or without prejudice. The defendant contends that the trial court erred in denying his request for a hearing prior to his determining whether to request a mistrial. We note that the defendant has not indicated what further evidence the trial court might have considered at any additional hearing. Having reviewed the record, we find the decision of the trial court was sustainable. See State v. Roy, 138 N.H. at 98. That the trial court offered the defendant more relief than required does not alter our conclusion. Affirmed.
2003-0665 The court on December 10, 2004, issued the following order: The appellant, the mother of Juveniles 2003-0665-A, 2003-0665-B, and 2003-0665-C (children), appeals an order of the trial court terminating her parental rights. She contends that the trial court erred when it: (1) concluded that she would resume an abusive relationship with the father of the children or another abusive person; (2) failed to order reunification after finding that she had complied with the dispositional orders of the court; (3) found that her live-in relationship with the father of the children had continued for thirteen months after the finding of neglect; and (4) terminated her parental rights when the consent decree contained no requirement that she sever her relationship with the father of the children. We affirm. "Before a court may order the termination of a parent’s rights, the petitioning party must prove a statutory ground for termination beyond a reasonable doubt." In re Antonio W., 147 N.H. 408, 412 (2002). One such ground is failure to correct the conditions leading to a finding of neglect under RSA chapter 169-C." Id. Once the court has made this finding, it must then consider whether termination is in the child’s best interest. Id. We will not disturb its decision unless it is unsupported by the evidence or plainly erroneous as a matter of law. Id. In this case, the condition leading to the finding of neglect was an inability to protect the physical and emotional health of the children. The first two issues raised by the mother relate to findings made by the family division in its order following a permanency hearing in September 2002. Based upon the record before us, we conclude that appeal of those issues is untimely. See In re Diane R., 146 N.H. 676, 678-79 (2001) (recognizing petition for certiorari as available avenue of review for post-final dispositional orders and concluding that thirty-day appeal period applies in such cases). The mother also contends that the trial court erred in finding that she had continued to reside with the father of her children for thirteen months after the finding of neglect. The trial court found that the mother had failed to terminate her relationship with the father of the children until fourteen months after the finding of neglect and remained engaged to him throughout that period. The finding of neglect and the conditions that required correction focused upon the mother’s inability to protect the physical and emotional health of the children, including protection from physical violence. The violence was inflicted by the children’s father. The record supports the trial court’s finding that the mother failed to terminate her relationship with the father until after the statutory period for correction had run. That the consent decree in the neglect proceeding contained "no mandate" that she sever her relationship with the father does not affect our conclusion that the evidence supports the trial court’s finding that the mother failed to correct the conditions leading to the finding of neglect. Affirmed.
2003-0777 The court on December 10, 2004, issued the following order: The respondent, David A. Vaillancourt, appeals his divorce decree. He contends that the trial court erred in considering fault conduct as a basis for its order of alimony when the divorce was granted on the grounds of irreconcilable differences. We vacate and remand. The sole issue before us on appeal is whether the trial court factored fault grounds into its alimony award. "The trial court has broad discretion in determining and ordering the payment of alimony in fashioning a final divorce decree." In the Matter of Levreault and Levreault, 147 N.H. 656, 657 (2002) (ellipsis and quotations omitted). Absent an unsustainable exercise of that discretion, we will not overturn the trial court’s ruling. Id. We have previously held that if a divorce is granted on the grounds of irreconcilable differences, fault cannot be considered when considering a request for alimony. See Chabot v. Chabot, 126 N.H. 793, 795 (1985); RSA 458:19, IV (b) (Supp. 2004). The order before us contains several findings concerning the respondent’s conduct. Because we are unable to determine whether the trial court erroneously considered such conduct in its determination of the need for alimony, we vacate and remand this case to allow the trial court to conduct a record review within forty-five days of the date of this order. We express no opinion as to whether the trial court’s award was erroneous – we simply direct that on remand the trial court review the record to determine whether it considered the respondent’s conduct when determining the need for alimony. If the trial court should find that it erred, it should reconsider its award and make specific findings and rulings to support any new award. If the court finds that the respondent’s conduct was not a factor considered in its award of alimony, it should issue an order to so advise this court and the parties. We retain jurisdiction of this appeal. Vacated and remanded.
2004-0048 The court on December 10, 2004, issued the following order: Doris T. Langlois and Wilfred E. Beaudet appeal a decision of the trial court finding the 2001 will executed by Norman A. Beaudet to be valid. They contend that the trial court erred in: (1) assessing medical evidence; (2) relying upon the testimony of witnesses who had a limited acquaintance with the deceased; (3) shifting the burden of proof to the contestants of the will; (4) concluding that the deceased was not subject to undue influence; and (5) failing to find the will invalid due to the close relationship between the law firm which ‘drafted the will and the sole beneficiary. We affirm. "We will uphold the findings and rulings of the probate court unless unsupported by the evidence or clearly erroneous as a matter of law." In re Estate of Washburn, 141 N.H. 658, 659 (1997). "We accord considerable weight to the trial court’s judgments on the credibility of witnesses and the weight to be given testimony." Id. In her brief, appellant Langlois argues that the medical testimony indicated that Norman Beaudet’s mental capacity could have been affected by his medical condition and medications when he executed his will in 2001. Even if we assume without deciding that such speculative testimony was sufficient to rebut the presumption of capacity, we find no error in the probate court’s ruling. See id. at 660 (once presumption of competency rebutted capacity must be proven by preponderance of evidence). In its order, the court cited the testimony of both the hospital social worker and one of the testator’s treating physicians that he conversed with them normally and displayed nothing in his speech and actions that indicated a need for further psychiatric evaluation; his treating physician testified that the tumor suffered by the testator was unlikely to interfere with his cognitive skills. That the testator may have discussed leaving his estate to others does not alter our conclusion that the record supports the probate court’s finding that the 2001 will was valid. We are similarly unpersuaded that the probate court erred by basing its ruling "almost exclusively on legal conclusions drawn by attesting witnesses." In a lengthy well-reasoned order, the court cited extensive evidence to support its conclusion, including testimony by family members. Cf. RSA 551:2-a (Supp. 2004) (requirements for self-proved wills). Nor are we persuaded that the probate court shifted the burden to the contestants of the will. In weighing the evidence, the court cited the lack of evidence presented to support allegations that the testator was confused at the time he executed his will. The probate court’s order contains a lengthy discussion of the analysis applicable to a determination of whether a will is the product of undue influence. See Albee v. Osgood, 79 N.H. 89, 92 (1918). The record reveals that the probate court correctly applied the analysis and that the evidence supports its analysis. The record contains evidence of a long-term personal relationship between the testator and the beneficiary of his estate, including the testator’s weekly visits to the beneficiary’s home and that the testator spent the final months of his life in the beneficiary’s home. See Washburn, 141 N.H. at 659. Finally, we find no error in the probate court’s failure to remove estate counsel or to find the will invalid because the firm was too closely identified with the sole beneficiary. We will assume without deciding that this argument has been adequately developed for appellate review. The probate court found that the law firm for the estate had represented the estate’s beneficiary five years earlier in a divorce and civil matter but found no evidence that its prior representation materially limited its representation of the estate or that its prior representation was directly adverse to the decedent. See N.H. Prof. Conduct R. 1.7. We find no error in its ruling. Affirmed Orders issued by the 3JX panels of the New Hampshire Supreme Court are without precedential effect and may not be cited for any proposition of law or as an example of the proper resolution of any issue. |
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