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Bar News - September 21, 2001 NH Supreme Court Summaries CRIMINAL – DRIVING WHILE INTOXICATED – EVIDENCE - MIRANDA WAIVER No. 2000-250 – July 23, 2000 The State of New Hampshire v. Brian Duffy NADEAU, J. The defendant appeals his conviction on one count of driving while intoxicated. See RSA 265:82 (1993) (amended 1995, 1996). He argues that the trial court erred by admitting certain of the defendant’s statements made during the booking process. The supreme court reversed and remanded. On December 19, 1999, a Portsmouth Police officer observed the defendant’s overturned vehicle near the Portsmouth traffic circle. While talking to the defendant, the officer detected the "faint odor" of alcohol on his breath, and observed that the defendant appeared nervous. Upon questioning, the defendant indicated that he had recently consumed three alcoholic beverages. After waiting ten minutes, the officer conducted the HGN test, the one-legged stand test and the nine-step walk-and-turn test. The defendant’s performance on these test indicated to the officer that the defendant was intoxicated. The officer arrested the defendant and, after the defendant indicated he would refuse chemical testing, transported him to the police station. While in the cruiser, an officer read the defendant his Miranda rights. The officer testified that the defendant said that he understood these rights. There is no written waiver evidencing this exchange. There is nothing in the record of an oral waiver. Once at the station, the defendant was read his rights relative to the administrative license suspension (ALS) statute, and instructed to fill out a form requiring him to write his initials next to several questions. About ten minutes after being read his Miranda rights in the cruiser, and immediately following the officer’s instructions to respond to questions on the ALS form, the officer asked the defendant "approximately how much he had had to drink." Responding, the defendant indicated that he had one "Jack and Coke, and then he said that he went to the Rusty Hammer … where he said he had three Jim Beam and waters." Prior to trial, the defendant filed a motion seeking to suppress these statements. The trial court admitted these statements. The defendant here never expressly waived his rights, either orally or in writing nor did he initiate the conversation, rather the police officer initiated the interrogation. Additionally, given that the defendant was required to answer ALS form questions and standard booking questions immediately prior to being asked how much he drank that evening, he may very well have thought he was also required to answer the officer’s questions. While the evidence suggests that the defendant may have understood his rights, no fact whatsoever establishes that he voluntarily waived his right to remain silent before he answered the police officer’s question. The supreme court concluded that it was against the manifest weight of the evidence to find that the State proved beyond a reasonable doubt that the defendant voluntarily and intelligently waived his rights. WORKERS’ COMPENSATION BENEFITS – SUBSTANTIVE RIGHTS - EQUAL PROTECTION No. 99-521 – July 26, 2001 Appeal of Gary Wintle (New Hampshire Compensation Appeals Board) NADEAU, J. The petitioner appeals a Compensation Appeals Board (board) decision denying him double workers’ compensation benefits pursuant to RSA 281-A:33 (1999). The supreme court affirmed. The petitioner has worked for General Electric (GE) manufacturing airplane parts. The petitioner has been injured twice on the job while using a pneumatic clamping device. The first accident occurred in 1994 when he caught part of his right hand in the machine. In 1997, the petitioner again caught part of his right hand in the machine, amputating the top of his right ring finger. A Department of Labor hearing officer awarded the petitioner workers’ compensation benefits for the 1997 injury but denied his request for double compensation benefits pursuant to RSA 281-A:33. The petitioner sought de novo review before the board, which upheld the hearing officer’s decision. In 1985, RSA chapter 277 was amended to apply only to State employers. Because a violation of RSA chapter 277 is a threshold element required to satisfy RSA 281-A:33, the 1985 amendment of RSA 277:1-b effectively limited RSA 281-A:33 to State employers only. The petitioner first argued that by limiting RSA 281-A:33 to State employers, the 1985 amendment deprives him of his right to a certain remedy under the Federal Constitution and Part I, Article 14 of the State Constitution. Review of the plain language of RSA 281-A:33 revealed that it does not create a "right" of employees; rather, it imposes a detriment upon employers that incidentally benefits employees. Accordingly, the supreme court concluded that the 1985 amendment to RSA 277 does not implicate an "important substantive right" warranting constitutional protection under Part I, Article 14 of the New Hampshire Constitution. The supreme court rejected the petitioner’s argument that the application of the 1985 amendment to RSA 281-A:33 violates his right to equal protection under the Federal Constitution and Part I, Articles 2, 12 and 14 of the State Constitution. Since the 1985 amendment does not constitute an infringement upon the petitioner’s right to a remedy, the supreme court concluded that the classification created by the 1985 amendment implicates a purely economic benefit, which is reviewed under the rational basis test. The legislature’s intent in limiting RSA chapter 277 to State employees was to "give parity to the public employees that the private sector has at the present time" through the workplace safety regulations imposed by the Federal Occupational Safety and Health Act. This purpose is rationally related to the classification created by RSA chapter 277 and to the resulting classification incorporated into RSA 281-A:33. TRUSTS – SPENDTHRIFT PROVISIONS – TORT CREDITORS Lorie Scheffel, individually and as mother and next friend of Cory C. DUGGAN, J. The plaintiff appeals a superior court order dismissing her trustee process action against Citizens Bank, the trustee defendant. The supreme court affirmed. The plaintiff filed suit in superior court asserting tort claims against the defendant, Kyle Krueger. In her suit, the plaintiff alleged that the defendant sexually assaulted her minor child. The same conduct that the plaintiff alleged in the tort claims also formed the basis for criminal charges against the defendant. The court entered a default judgment against the defendant and ordered him to pay $551, 286.25 in damages. To satisfy the judgment against the defendant, the plaintiff sought an attachment of the defendant’s beneficial interest in the Kyle Krueger Irrevocable Trust (trust). The beneficiary is prohibited from making any voluntary or involuntary transfers of his interest in the trust. Article VII of the trust specifically provides: No principal or income payable or to become payable under any of the trusts created by this instrument shall be subject to anticipation or assignment by any beneficiary thereof, or to the interference or control of any creditors of such beneficiary or to be taken or reached by any legal or equitable process in satisfaction of any debt or liability of such beneficiary prior to its receipt by the beneficiary. Asserting that this so-called spendthrift provision barred the plaintiff’s claim against the trust, the trustee defendant moved to release the attachment and dismiss the trustee defendant. The trial court ruled that under RSA 564:23 (1997), this spendthrift provision is enforceable against the plaintiff’s claim and dismissed the trustee process action. The supreme court first addressed the plaintiff’s argument that the legislature did not intend RSA 564:23 to shield the trust assets from tort creditors, especially when the beneficiary’s conduct constituted a criminal act. The statute, however, plainly states that "a creditor of a beneficiary shall not be able to subject the beneficiary’s interest to the payment of a claim." RSA 564:23, I. Nothing in this language suggest that the legislature intended that a tort creditor should be exempted from a spendthrift provision. The plaintiff argued public policy required the supreme court to create a tort creditor exception to the statute. The supreme court concluded that no rule of public policy is available to overcome the statutory rule because the legislature has enacted a statute repudiating the public policy exception sought by the plaintiff. Finally, the plaintiff asserted that the trial court erred in denying her request that the trust be terminated because the purpose of the trust can no longer be satisfied. The record supported the trial court’s finding that the trust’s purpose may still be fulfilled while the defendant is incarcerated and after he is released. TAX ABATEMENT–CHARITABLE ORGANIZATION EXEMPTION East Coast Conference of the Evangelical Covenant Church of America, Inc. v. Town of Swanzey NADEAU, J. The plaintiff appeals a superior court ruling denying, in part, the Church’s petition for tax abatement because certain portions of its property did not qualify for the charitable organization tax exemption for years 1996, 1996 and 1998. The supreme court affirmed. The Church is a denomination of the Christian faith, registered as a not-for-profit corporation. The Church is designated a tax-exempt organization under section 501 (c)(3). The Church owns and operates two properties. The first property, Camp Squanto, is exempt under RSA 72:23, V (Supp. 2000), and is not at issue in this appeal. Separated from Camp Squanto by two independently owned tracts of land is the plaintiff’s second property, Pilgrim Pines. During the summer months, Pilgrim Pines is host to weeklong "camp programs" for families and adults. These programs have Christian-based themes and are run by pastors of the Church’s national clergy. Guest registration check-in forms require indication of church affiliation, and approximately sixty percent of guests are members of the Church. During non-summer months, Pilgrim Pines is rented to Church-approved groups. A chief renter is Elderhostel (accounting for approximately six percent of the Church’s overnight guests). Other denominations including Lutherans, Congregationalists, Baptists and Episcopalians, have also rented the facilities. Finally, non-religious affiliates, such as the Swanzey Fire Department, Keene State College and Cheshire Medical Center, rent Pilgrim Pines’ facilities. The trial court ruled that for the years in question, the Church failed to demonstrate that in its operation of Pilgrim Pines, it contributed to the general public benefit, and thus it was not a charitable organization entitled to tax exemption. Based upon the record, the Church failed to prove that the beneficiaries of Pilgrim Pines were a substantial and indefinite segment of the public for the tax years at issue. The supreme court held that where an organization makes efforts to limit its services, and targets its benefits only to its members, that organization is not obligated to serve an indefinite segment of the population. Accordingly, the supreme court affirmed the trial court decision that the Church’s operation at Pilgrim Pines is not eligible for a charitable tax exemption. CHILD CUSTODY – FINAL DISPOSITIONAL ORDERS – DE NOVO REVIEW In Re Diane R. Memorandum Opinion BRODERICK, J. The plaintiffs, Diane R.’s mother and stepfather, appeal a superior court order dismissing their appeal for de novo review of a June 15, 1999 district court order for long-term foster care. The supreme court affirmed. In 1993, Diane R. reported that her stepfather had sexually abused her. The division for children, youth and families (DCYF) filed a neglect petition. Thereafter, the parties signed a consent agreement in which Diane R’s mother, who was represented by counsel, agreed that Diane R. was neglected and that her legal custody with the right of placement should be granted to DCYF. The Somersworth District Court approved the agreement. The court specifically found that Diane R.’s mother voluntarily entered into the agreement. At the dispositional hearing, the court ordered that: (1) Diane R. remain in her mother’s physical custody; (2) legal custody be awarded to DCYF; and (3) no contact be allowed between Diane R. and her stepfather. Following the final dispositional order, Diane R.’s mother and stepfather did not seek de novo review in the superior court. In the years that followed, the district court reviewed the case numerous times. Although Diane R.’s physical custody changed from her mother to foster homes, DCYF continuously maintained legal custody. The "no contact" order between Diane R. and her stepfather was not changed until 1995, when the court allowed therapeutically supervised visits between the two. In a 1997 order, the district court ordered DCYF to change the case plan from reunification to long-term foster care. Among other findings supporting this change, the court concluded that the mother had not complied with the "no contact" order. Later orders, including one issued on June 15, 1999, stated that "[t]he case plan remain[s] long-term foster care." The parents filed an appeal in superior court and requested a de novo hearing to review the district court’s June 15, 1999 order. The superior court dismissed the appeal. The supreme court held that there is no statutory right to de novo appeal from post-final dispositional orders issued by the district court. RSA 169-C:28 provides that de novo review "may be taken to the superior court by the child or the child’s authorized representative or any party having an interest, including the state, … within 30 days of the final dispositional order." (Emphasis added). In this case, it is not disputed that the final dispositional order was issued in 1993. The plaintiffs sought superior court review of a June 15, 1999 order, which they claim significantly altered Diane R.’s case plan. An examination of the record reveals that the changes complained of did not occur in June 1999, but in orders dating back at least as far as 1997, when the court ordered that DCYF move forward to change the case plan to long-term foster care from reunification. Accordingly, any petition for a writ of certiorari should have been filed in 1997. Therefore, even if the supreme court were to treat the plaintiff’s present appeal as a petition for a writ of certiorari from the 1997 order, it would be untimely. INDIVIDUAL RETIREMENT ACCOUNT – BENEFICIARY INTEREST Estate of Robert T. Tremaine by Norman R. Tremaine, Executor v. Lorraine Tremaine Memorandum Opinion BRODERICK, J. The respondent, appeals a superior court order awarding the petitioner the proceeds of Robert T. Tremaine’s (decedent) Fleet Bank individual retirement account (IRA). The supreme court reversed. The decedent and the respondent were married in 1988. Prior to the marriage, the decedent established an IRA at Fleet Bank. In 1991, the decedent named the respondent as the IRA beneficiary. The parties divorced in 1997 and agreed to a permanent stipulation, which was incorporated into the divorce decree. Paragraph 10 of the permanent stipulation states: PENSIONS AND OTHER TAX DEFERRED ASSETS: Each party is awarded any interest in any pension, retirement, 401k, IRA or other retirement account that each one may have and as shown on her or his respective Financial Affidavit, free and clear of any right, title, interest, or claim of the other. Fleet Bank records indicate that after 1991 the decedent did not change the named beneficiary of the IRA. On appeal, the respondent argued that the trial court erred in ruling that the divorce decree effectively extinguished her beneficiary interest in the decedent’s IRA. She contends that: (1) the language of the divorce decree is not an express and unambiguous statement of intent as required by the Dubois/Frederick test, see Estate of Frederick v. Frederick, 141 N.H. 530, 532 (1996); Dubois v. Smith, 135 N.H. 50, 56 (1991). In this case, each party was awarded "any interest in any … IRA" he or she had at the time of the divorce. While it may be that the stipulation of the parties in the decree was intended to terminate the respondent’s beneficiary interest in the petitioner’s IRA, the language could be interpreted to mean that she was to retain her interest. Accordingly, the divorce decree fails to unambiguously change the beneficiary designation. PROBATE - TRUSTS – NET INCOME PROVISION In Re Declaration of Trust made by Frederic C. Dumaine & a. DALIANIS, J. The petitioners ask the court to determine whether the word "children" in the net income provision of the trust should be interpreted to include the descendents of Dumaine who are neither his children nor his grandchildren. The supreme court held that the settlor of the trust intended the word "children" to be interpreted literally. The trust was created in 1920. The trust income is distributed during the life of the trust according to the net income provision set forth in article II, paragraph 3 of the trust instrument. Pursuant to this provision, the trustees must determine the net income of the trust annually and distribute one-half of it to the principal. The provision permits the trustees to distribute the other half "to the legitimate children of Frederic C. Dumaine or to their legitimate surviving children." The trustees have sole discretion to determine who will receive income and in what amounts. The trustees are permitted to "omit all or any [one]" from the class of those to whom income is distributed. Despite this broad grant of authority, the trustees historically have distributed net income on a per stirpes basis, dividing it into equal shares with one share for each living child and one for each of the deceased children with living issue. They have paid one share to each of Dumaine’s living children and one share on a representational basis to the legitimate living children of each deceased child. Since the death of the last survivor of Dumaine’s seven children, the trustees have distributed one-half of the net income on a per stirpes basis to Dumaine’s twelve grandchildren. The twelve grandchildren now range in age from fifty-six to seventy-four, and thus it is likely that one or more of them will die before the trust terminates (at least twenty-one years from now). In June 1999, the trustees petitioned the probate court to interpret the word "children" in the net income provision to refer not only to Dumaine’s children and grandchildren, but also to later generations, thus permitting the trustees to distribute income to the children of deceased grandchildren. To determine the settlor’s intent, the supreme court looked to the language of the trust. The relevant portions of the net income provision are as follows: At the end of each calendar year the Trustees shall determine the net income of the trust; … [one-half] thereof the Trustees may in their sole discretion pay … to the legitimate children of Frederic C. Dumaine or to their legitimate surviving children. The Trustees shall have full discretion to decide to which of said children of Frederic C. Dumaine, or their said surviving children, payments shall be made, and the amount thereof including the right to omit all or any …. The supreme court interpreted the word "children" in the net income provision literally and construed it to permit the trustees to distribute one-half of the net income to Dumaine’s children and, upon their demise, to Dumaine’s grandchildren. The evidence showed that Dumaine expressly declined to require either a per stirpes distribution of trust income or that the trustees hold amounts not distributed in reserve for the heirs of those to whom they elected not make payments.
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