Collecting electronic evidence: Is it Legal and/or Admissible?

Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

 

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.  

           

A New Hampshire Alimony Primer

I am always surprised when a potential client comes in to meet with me and says “there’s no such thing as alimony in New Hampshire, right?” Be assured, there is alimony in New Hampshire. 

Alimony is governed by RSA 458:19. The law says that the recipient must have the need for alimony, and the payor must have the ability to pay. The alimony award must take into account the lifestyle of the parties during the marriage. In determining the amount of alimony, the court must consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded to either party, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party as defined in RSA 458:16-a, II(l); and the federal tax consequences of the order.

Things to know about alimony:

  • Alimony is gender neutral. Men and women can receive alimony.
  • The court has broad discretion when awarding alimony, and there is no formula in New Hampshire for either an amount or a term.
  • Alimony cannot be waived in a divorce stipulation. The law provides either spouse with the right to petition for alimony within 5 years of the date of the divorce decree, or if alimony has been ordered for a definite time period, within 5 years from the date of the last payment.
  • Alimony is tax deductible to the payor, and is taxable income to the recipient.
  • The primary purpose of alimony is rehabilitative, meaning the support is intended to allow the recipient time to become self-supporting. However, the court has the authority to order alimony for an indefinite period of time where appropriate.
  • Agreements that contain a provision for the payment of alimony often include language about the terminating alimony upon the recipient’s remarriage or cohabitation with a romantic partner. 

Unbundled Legal Services

Unbundled legal services, also known as limited scope representation, allow you to hire a lawyer to do certain parts of your case, instead of the traditional soup to nuts representation. Some clients choose unbundled services because they cannot afford full representation, and some advice is better than no advice. Other clients feel capable of handling certain parts of the case, but need assistance with other portions.

Unbundled services can be customized to fit your needs, and can include

  • Representation at a specific hearing, such as a temporary hearing
  • Draft proposed orders or pleadings
  • Attending mediation
  • Assisting with discovery preparations
  • Consulting during your case to provide assistance and advice  

Payment arrangements for unbundled services can be tailored to the specific service. For example, paying a small retainer for ongoing advice, or paying for an hour at the end of a meeting to prepare documents.

Lawyers providing unbundled services will ask the client to sign a consent form that clearly spells out what services are, and are not, going to be provided, in addition to a fee agreement. 

Address notification requirements and domestic violence restraining orders: How to comply with conflicting orders

 Question:

 Do I still have to notify the other parent about moving pursuant to the relocation statute if there is a domestic violence restraining order and my address is confidential?

 

Answer:

 

The statute states that the notice requirement applies in all parenting rights and responsibilities cases unless specifically addressed otherwise in the parties’ existing order or agreement. If there is a court order stating that you do not have to comply with the relocation law, then no notice is needed. Similarly, if the move results in your moving closer to the other parent and there is no change in school placement, then no notice is needed pursuant to the relcoation statute. You may, however, need to provide notice of your address change pursuant to provisions in the court order requiring parents to keep each other updated on address and contact information.

 

If you are required to provide notice of the address change, then you must comply and provide notice of the move to the other parent. If you are concerned about releasing your address, the best approach would be to provide notice of the move by providing the town or city location only, and not the street address, and file a motion with the court to seek permission not to disclose the full address. Presumably, the other parent has the right to know what schools the children are attending, so the information about the town or city will most likely need to be disclosed.

 

Remember, this is a basic answer to a basic question. Each family matter is unique, and has a specific set of facts which might change the above answer. In order to make sure that you arein compliance with court orders and New Hampshire law, you should seek advice from an attorney who is able to review your situation with you.

Thompson v. D'Errico: Order your transcript for your appeal!

The Facts

            The plaintiff, Linda Thompson, filed a domestic violence petition against the defendant, Christopher D’Errico requesting an order of protection. After an evidentiary hearing, the Court issued a final order of protection, and made findings that the defendant had on a daily basis sent text messages to the plaintiff using “extraordinarily foul language”, that the defendant had made reference to a having a loaded shotgun, and that a family friend had to interfere to stop the defendant from putting his hands around the plaintiff neck. The defendant moved for reconsideration, arguing that the evidence did not support a finding that he posed a credible threat to the plaintiff’s safety. The trial court conducted a further hearing, and issued an order detailing the text messages sent by the defendant at extremely inconvenient hours, using such language as “bills asshole die bitch,” sent in the days leading up to the filing of the domestic violence petition. The court found these texts to be a “credible present threat, considering the defendant’s previous threat of the loaded shotgun and the defendant’s previous attempt to put his hands around the plaintiff’s neck.”

The Appeal

The defendant appealed the order, arguing that:

(1) his non-threatening foul language is protected by the First Amendment;

(2) there is no evidence to support the plaintiff’s allegations against him;

(3) the text messages might have been sent by a third party having access to his phone;

(4) the trial court erred by admitting evidence of certain text messages; and

(5) the evidence does not support the finding of a credible present threat to the plaintiff’s   safety. 

The Holding

            The evidence supported a finding of a credible threat to the plaintiff’s safety. The Supreme Court came to this conclusion because the defendant, who was the appealing party, failed to provide a transcript, and absent a transcript, the court must assume that the evidence was sufficient to support the trial court’s ruling. The court refused to consider other questions presented on appeal for this same reason, finding that the defendant had failed to demonstrate that he had preserved issues for appeal without a transcript evidencing his objections to evidence.

            The First Amendment does not protect the defendant’s non-threatening foul language because the definition of harassment, which requires repeated communications with offensively coarse language that is made with the purpose to annoy or alarm, is narrowly tailored to the illegal communication it seeks to prevent.

The Takeaway

            Provide a transcript for your appeal. The transcript is the written record of what happened during your hearing or trial. Without a transcript, the Supreme Court has no way of knowing whether you brought an issue to the attention of the trial court for consideration. For example, did you object when the other side submitted a tax return to the judge? If your appeal alleges that the trial court improperly allowed the tax return into evidence, the Supreme Court needs to confrim that you objected and preserved that issue for their review. Similarly, without a transcript, the Supreme Court must assume that the conclusions or findings reached by the trial court were supported by the evidence. In this case, the defendant failed to provide a transcript, and many of his arguments brought before the Supreme Court, including whether the trial court had sufficient evidence to reach the conclusion that he presented a credible threat to the plaintiff’s safety, failed for that reason. The results might have been different if he had ordered and paid for the transcript.

            As the Occupy Wall Street movement recently learned, free speech as limits. The statute defining harassment requires a repeated course of conduct, where communication occurs at extremely inconvenient hours or with extremely coarse language. The calls must also be made with the purpose to annoy or alarm. Harassment cannot be conjured from a single call made to anyone, anywhere, at any time. Here, the defendant sent repeated texts, at inconvenient hours, and with extremely coarse language. The texts were clearly designed the alarm the plaintiff, rather than expressive conduct made for a legitimate purpose. This communication is the exact type of illegal behavior the statute is designed to prevent.

UCCJEA Now Effective

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) went into effect on December 1, 2010 in New Hampshire. Following the lead of 46 other states, the UCCJEA replaces the old UCCJA, which is still the law in Massachusetts and Vermont. The act affects almost every case that involves parental rights and responsibilities, including divorce, parenting petitions, child abuse and neglect, guardianships of minors, termination of parental rights, and domestic violence petitions where minor children are involved.   

 

Important points about the new law:

  • Requires that once the “home state” of the child has been determined, and child custody orders have been issued, that state has “exclusive continuing jurisdiction” for so long as the child or either parent reside there.
  • Eliminates the confusing “best interests” standard included in the UCCJA, which some courts interpreted as a mandate to consider best interests factors over and above jurisdictional matters.
  • Adds enforcement tools including a role for public authorities, such as prosecutors, to enforce custody orders and the ability for the court to issue a emergency relief such as a warrant to take possession of a child should the court be concerned that the parent with control over the child may flee.

The new law brings about a slew of new and revised forms. For petitioners, forms such as a Petition for Divorce, Petition for Guardianship over Minor, or a Domestic Violence Petition have been modified to include required information. For respondents, the court has developed a separate form titled a UCCJEA Affidavit to complete in response to an initial petition.

 

Navigating the requirements of the UCCJEA can be overwhelming for those involved in cases of parenting rights and responsibilities. It is important to retain competent legal counsel to assist you. Contact Crusco Law Office, PLLC for more information.

The Holiday Season & Domestic Violence

Though domestic violence is a year round problem, the holidays bring about a spike in domestic abuse. Whether the increase is due to holiday party alcohol and drug use, money pressure, or tense family get-togethers, the holiday season between Thanksgiving and New Year’s is an especially dangerous time for victims of domestic violence.

If you are a victim of domestic violence, it is important to have a safety plan in place and seek help. Robert Mues's Ohio Family Law Blog recently posted excellent suggestions that should be included in a safety plan:

    • Keep an extra set of car keys hidden somewhere that your husband doesn’t know about. Abusers often trap their wives by preventing their leaving.

    • Entrust one friend with your story who will let you come to them in an emergency. This should preferably be a person your husband doesn’t know.

    • If you have a cell phone, keep it with you (and charged) whenever he is around.

    • If you can, sleep in separate rooms and keep the door locked.

    • Some abusers have patterns; if you suspect your husband will be violent, leave the house.

    • Keep extra clothes for your kids and yourself at a neighbor’s house or in the trunk of your car.

    • Always keep a full tank of gas.

    • If there are firearms, try to get them out of the house; or at the very least, keep the ammunition in a separate place.

    • Never argue with your husband when he is under the influence of alcohol or drugs.

    • Keep some money in a place where your husband can’t find it.

    • Have a get-away plan in place.

    • ALWAYS TELL YOUR ATTORNEY!

     

In addition to contacting an attorney, the following are some of the resources available to victims of domestic violence in New Hampshire:

New Hampshire Coalition Against Domestic and Sexual Violence

            DV Hotline: 1-866-644-3574

            Sexual Assault Hotline: 1-800-277-5570

YWCA Crisis Service, Manchester, NH

            Crisis Line: 603-668-2299

Bridges: Domestic & Sexual Violence Support, Nashua, NH

            Crisis Line: 603-883-3044

Rape and Domestic Violence Crisis Center, Concord, NH

Domestic Violence: 1-866-644-3574
Sexual Assault: 1-800-277-5570

 

Hemenway: Personal jurisdiction is not required for NH court to issue domestic violence protective orders

The New Hampshire Supreme Court recently held in the case of Michelle Hemenway v. Edmund J. Hemenway, Jr. that a New Hampshire court may issue protective orders against an out of state defendant, even when the defendant committed acts from another state. This case affirms the right of the plaintiff to seek domestic violence protective orders in New Hampshire where he or she resides or is sheltered.

As background to the case, the parties resided in Florida until 2008 when Michelle moved to NH with the parties children. Michelle filed for, and subsequently received a restraining order in the Derry Family Division, pursuant to RSA 173-B. She alleged that in 2008 Edmund became verbally abusive and threatened her and her children both in Massachusetts and in Florida.

Edmund filed a special appearance contesting the jurisdiction of the family division to enter final protective orders against him. He argued on appeal that the court lacked both subject matter and personal jurisdiction over him because the underlying acts occurred in Florida and Massachusetts, not New Hampshire.

Subject Matter Jurisdiction

The court ruled that subject matter jurisdiction had been statutorily granted to the family division and that there was no territorial limitation in the statute (as there is with criminal threatening, etc in the criminal code) that would have prevented Michelle from bringing the petition where she either permanently or temporarily resides. “The fundamental logic of that statutory provision is unassailable: a victim of domestic abuse who seeks a place of refuge must be able to engage the protections of the law of the jurisdiction in which she is sheltered.”

Personal Jurisdiction

The court found that the only acts Michelle relied on in her petition occurred outside of New Hampshire. Therefore, Michelle had “failed to demonstrate facts sufficient to establish personal jurisdiction over the defendant.” However, the court held that since the protective order did not impose affirmative obligations on Edmund, instead only issuing orders protecting Michelle, personal jurisdiction is not required.  

The court recognized the principles of two landmark United States Supreme Court cases to explain the relationship between the courts and the residents of their states. Both Pennoyer v. Neff and Williams v. North Carolina provide that even if an offending party does not reside in the victim’s state, that state’s courts are not prevented from issuing orders relative to the status (whether marital status as in the above two cases or safety status as in this case) of its inhabitants. 

To require such a ruling would leave a domestic violence petitioner with two untenable choices: 1) return to the state where the abuse occurred; or, 2) “wait for the abuser to follow the victim to New Hampshire and, in the event of a new incident of abuse, seek an order from a New Hampshire court.” These two choices are clearly at odds with the purpose of RSA 173-B and New Hampshire’s interest in protecting the victims of domestic violence.

Crusco Law Office, PLLC Law Clerk Dan McLaughlin contributed to this post.

Tough economic times can lead to increased domestic violence

An article caught my attention today in the Union Leader titled "Recession can lead to depression" by Jason Schreiber.  The article discusses the increased rate of domestic violence during tough economic times. Money is often the biggest stressor in a relationship, so it follows that during tough economic times, domestic violence will increase.

Local health experts say the tough economic times are taking a heavy physical toll as people struggle to cope with job losses, foreclosures and their own personal financial turmoil. Police are also seeing a jump in domestic violence.

"We're going to homes where we haven't been in the past for that issue," Plaistow Deputy Police Chief Kathleen Jones said.

She said police have seen a 10 percent increase in domestic cases over the past year.

Added financial pressures are causing tempers to flare and fights to break out, Epping police Lt. Michael Wallace said.

"I don't think there are any social boundaries," he said. "I think it affects everyone. People we've never dealt with before are now all of a sudden experiencing emotions that they've never had before."

If you have are in danger from domestic violence, get help:

 

 

Final restraining order: What can the judge order?

Once the plaintiff has proved that the defendant has abused her within the meaning of the statute, the court may grant a final restraining order that will remain in effect for one year. The court has the authority to order the following protective orders:

  • Restrain the defendant from abusing the plaintiff, plaintiff's relatives or plaintiff's household members
  • Restrain the defendant from entering the place where the plaintiff resides (except to retrieve personal property allowed by the court and accompanied by a police officer)
  • Restrain the defendant from contacting the plaintiff or entering the plaintiff's place of employment, school, or any specified place frequented regularly by the plaintiff or by any family or household member. 
  • Restrain the defendant from taking, converting, or damaging plaintiff's property or property he or she may have an equitable interest in
  • Direct the defendant to relinquish to the peace officer deadly weapons that are in the possession or control of the defendant

Additionally, the court has the authority to issue orders concerning parenting, support, personal property and use of the family home. These additional orders may include the following:

  • grant primary parenting responsibility to either party, and make orders for parenting time
  • direct the defendant to pay support to the plaintiff or minor children (if the defendant has a legal duty to support the plaintiff or minor children)
  • order the defendant to make automobile, insurance, health care, utilities, rent, or mortgage payments
  • order the defendant to pay monetary compensation to the plaintiff for losses directly resulting from the abuse
  • order the defendant to take a batterers intervention course or counseling
  • grant exclusive use of the family home to the plaintiff (unless the plaintiff has no legal right to reside in the home)
  • grant use of household furniture or an automobile to the plaintiff (unless the plaintiff has no legal interest in the property and the defendant has no legal obligation to support)
  • order the defendant to pay the plaintiff's reasonable attorney's fees 

Although the court may make these orders in a final restraining, the order is only good for one year. Therefore, after the year has passed, the orders will expire. The plaintiff should take care to make plans to have additional orders in place when the restraining order expires, either through a divorce or parenting petition, to ensure the defendant's continued obligations for support and to make certain there are established parenting rights.

Proving abuse in a domestic violence petition

In order to prove abuse in a domestic violence petition, the plaintiff must show that the defendant , who is a family or household member or a current or former sexual partner, committed one of the following acts:

Additionally, the act itself must consitute a credible threat to the safety of the plaintiff. The Plaintiff has the burden to prove the abuse by a preponderance of the evidence, a legal standard that means that it is more likely to be true than not true. Therefore, when testifying at a final hearing, it is important for the plaintiff to give a clear, detailed, accurate account of the actions of the abuser that led him or her to file for the restraining order.