RSA 173-B, Protection of Persons from Domestic Violence, was initially enacted in 1979. The statute failed to register on the radar screen of the New Hampshire Supreme Court until 1997, however, when the Court issued its first opinion discussing 173-B in the case of Seufert v. Seufert, 141 N.H. 766 (1997). In that case, the Supreme Court reversed a restraining order because the plaintiff failed to prove that the defendant abused her. Instead, she proved that the defendant had hit their son, and because the son was not included in the "class protected by the statute" since he lived with the defendant, protection under 173-B could not be extended to the plaintiff. It should be noted that in the dicta of that decision, the Supreme Court (Broderick, J.) did not completely rule out the possibility that abuse of the child could arguably place another in fear of imminent bodily injury and thereby provide the foundation for a viable domestic violence petition. Seufert, at 767-768.

Between 1997 and 2001, there were no decisions issued by the Supreme Court regarding the domestic violence statute. Instead, the Legislature was working on revising the language of the statute and on Jan. 1, 2000, a new and improved version of RSA 173-B was born. Beginning in June 2001, the Supreme Court issued the first of five decisions that would address RSA 173-B. This article will discuss the facts and holdings in each case, in the order in which the cases were decided.

* In Fitchner v. Pittsley, 146 N.H. 512 (2001), the plaintiff filed a petition for a restraining order in Nashua District Court, alleging:

[The defendant] has been very abusive in the past. He has threatened me over the phone - through my daughter. And my father. I received an e-mail from my daughter on 5/30/00 saying he was going to slice my throat. On 6-22-00, he phoned my father - and told him[] that he's not going to recognize me the next [time] he saw me. On 5-26-99 - He beat me to the point of hospitalization. Police were at my home this morning (6-23-00).

The district court issued a temporary restraining order with protective orders and also awarded the plaintiff temporary custody of the parties' child. The district court was aware of the existence of a divorce decree issued by the superior court in June 1999, which gave custody of the parties' child to the defendant and awarded the plaintiff visitation rights. A final hearing was held on the DV petition, and the district court made a finding of abuse and issued a protective order, which included awarding the plaintiff custody of the child. The district court then transferred the matter to superior court for review of the custody issue. Instead of addressing the custody issue in the superior court, an appeal was taken to the Supreme Court. Immediately following oral argument, the Supreme Court vacated the custody order. The Supreme Court (Duggan, J.) cited RSA 173-B:5, IV, which states: "No order made under this section shall supersede or affect any court order pertaining to ... custody of children pursuant to RSA [chapters] 169-B, 169-C, or 169-D; support or custody made under RSA [chapter] 458; or custody of children of unwed parents as determined by a superior court, probate court or family division court...."

In explaining its decision, the Supreme Court suggested that the lower court could have immediately transferred the proceedings to the superior court to be heard as if originally entered in the superior court.

The finding of abuse in Fitchner was affirmed, as the evidence clearly established that there was criminal threatening and that it constituted a credible threat to the plaintiff's safety. There was also evidence of physical abuse that sent the plaintiff to the hospital a little more than a year prior to the filing of the petition.

The holding of Fitchner warns the practitioner to be sure to determine the legal status of custody if the plaintiff has children. It would be more efficient to go straight to the superior court to get a restraining order, rather than the district court, if custody is going to be an issue and there are existing orders in place.

* In In the Matter of Morrill and Morrill, 784 A.2d 690 (2001), the plaintiff filed a domestic violence petition in Concord District Court alleging that the defendant pushed her hard, bruised her and verbally threatened her. Shortly thereafter, the plaintiff filed a divorce and the two matters were consolidated in Merrimack County Superior Court. Prior to the final hearing, the plaintiff filed a motion in limine to preclude the parties' two children, ages 15 and 16, from testifying. The children were not permitted to testify, and after an evidentiary hearing, a final protective order was issued. The defendant appealed, arguing that the lower court abused its discretion and he was deprived due process because he was not permitted to call his children as witnesses. The Supreme Court (Duggan, J.) affirmed the lower court, finding that since the defendant was permitted to cross-examine adverse witnesses, present his own testimony and present the children's handwritten statements, due process was not violated. The Court found that the children's testimony would have been "largely cumulative."

The issue of the sufficiency of the evidence was not addressed by the Supreme Court in Morrill. I suspect that since there were allegations of physical abuse and evidence of bruising, the issue was not appealed.

* The next case decided was Rogowicz v. O'Connell, 786 A.2d 841 (2001). The plaintiff had obtained a final protective order, which the defendant allegedly violated on numerous occasions. The plaintiff, pro se, filed a request for an emergency hearing, which the lower court treated as a motion for criminal contempt, and the court referred the case to the local prosecutor. The local prosecutor misconstrued the case as being "civil in nature" and declined to pursue it. When it became apparent that no prosecuting authority was willing to assist the plaintiff, the lower court called NHLA's Domestic Violence Project to see if we could assist her. I filed an appearance on behalf of the plaintiff and pursued the case. A public defender was appointed to assist the defendant and they filed a motion to preclude me from prosecuting the case. The motion was denied, a trial occurred and the defendant was convicted of indirect criminal contempt. The defendant appealed.

The Supreme Court (Broderick, J.) reversed and remanded the case for a new trial. It held that a private attorney who represents the interest of the beneficiary of a protective order couldn't also prosecute a defendant for indirect criminal contempt because of the potential for conflict or the appearance of impropriety. In dicta, the Court outlined a procedure for the lower courts to follow. In the first instance, the lower court should refer a criminal contempt case to the executive branch for prosecution. The Court wrote, "[w]e are confident that in most cases, the executive branch will act to preserve respect for judicial authority. In the unusual case in which a court believes that prosecution is necessary, even after the executive branch has declined to act, a court may appoint a private prosecutor."

The holding in Rogowicz places a great burden on practitioners to make sure that the prosecuting authorities are aggressively pursuing violators of restraining orders. The statutory option (RSA 173-B:5, VII) given to plaintiffs to pursue criminal contempt has been severely restricted by taking away the plaintiff's attorney's ability to assist the beneficiary of a restraining order. But that does not mean we should not zealously continue to represent the victim's interests and hold the executive branch accountable in appropriate circumstances.

* In Fillmore v. Fillmore, 786 A.2d 849 (2001), the plaintiff filed a petition alleging:

"My husband has been emotionally [and] mentally abusing me. He screams at me [and] I am in fear of him hurting me and my children. He has hit me before in anger many years ago. I would like him out of the home until divorce proceedings are in place."

The first ruling by the Supreme Court (Brock, J.) was that the petition was legally insufficient to support the issuance of a temporary protective order. The Supreme Court found that although this fact was not determinative, the fact that the husband was in Canada at the time the petition was filed took away the "immediate and present danger." Also, the fact that the plaintiff wanted to allow contact to discuss child visitation and marriage counseling diminished the danger.

The second ruling by the Supreme Court was that the finding of abuse was unsupported by the evidence. The Court held that the trial court must make a specific finding of criminal conduct in order to issue a final restraining order against the defendant, citing RSA 173-B:1. In this case, the Court concluded that the conduct did not rise to the level of criminal threatening or harassment. During the final hearing, the plaintiff testified to two incidents of physical abuse in the past. The first allegedly occurred at least eleven years prior to the filing, when the defendant struck the plaintiff "in anger." The second incident, alleged to have taken place eight years prior, involved the defendant pushing the plaintiff into their child's slide during an argument. The plaintiff also testified that during an argument some months prior to the filing of her request for a protective order, the defendant threatened to make her life "a living hell" if she did not acquiesce to his wishes. She interpreted this to mean "more yelling and screaming, maybe hitting . . . ." The defendant testified that the statement was not a threat of violence and that he had apologized for the remark on several occasions. The Court found that those incidents were too distant in time and non-specific to rise to the level of misconduct required to satisfy the threshold for either criminal threatening or harassment.

* Finally, in In the Matter of Alexander and Evans, 790 A.2d 142 (2002), the Supreme Court (Nadeau, J.) also reversed a finding of abuse in a case involving harassment. The evidence presented in that case revealed that despite the existence of a mutual restraining order, the respondent contacted the petitioner on numerous occasions. The evening before the hearing, the respondent pulled his car alongside of her car and made a rude gesture towards her. When she notified his employer and the police that he had violated the mutual restraining order, the respondent retaliated and made up stories about her, making her look like the bad guy. The petitioner introduced as evidence a card that the respondent apparently sent to her in October 2000, in which he told her that he loved her. She also submitted other undated notes and cards from the respondent in which he sought to reconcile with her, and she submitted a log of telephone calls that she asserted were from the respondent because her phone did not identify the caller and because the caller hung up. A co-worker of the petitioner testified that the respondent had approached her and told her to "watch out" for the petitioner. Another co-worker testified that the respondent came to the petitioner's home one morning and asked if the petitioner was home.

The Court held in Alexander that even though that type of contact and rude gesturing was sufficient to support a finding that the respondent harassed the petitioner, they were insufficient to support a finding that the harassment constituted a credible threat to the petitioner's safety. The Court offered no explanation as to why the conduct failed to constitute a credible threat.

A close review of the five recent cases issued by the Supreme Court appears to reveal that, even though the definition of abuse was expanded in 2000 to include such conduct as harassment and stalking, if there is no recent evidence of physical abuse, a victim is unlikely to get a restraining order. This trend flies in the face of developed practices of assessing risk in these volatile situations. As the epidemic of domestic violence has gained more public scrutiny, more is being learned about assessing the dangerousness of individuals committing domestic violence. The courts need to be better educated and trained in the use of the risk assessment tools, otherwise more victims will be denied necessary restraining orders. The most dangerous time for a victim of domestic violence is when she/he finally decides to leave the abusive relationship.

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