New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

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.

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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.  

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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:

• Call 911
• Call your local crisis center
• Call the New Hampshire Statewide Hotline at 1-866-644-3574
• Call the National Domestic Violence Hotline at 1-800-799-SAFE

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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.

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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:

• Assault or reckless conduct as defined in RSA 631:1, RSA 631:2, RSA 631:2-a, or RSA 631:3. 
• Criminal threatening as defined in RSA 631:4. 
• Sexual assault as defined in RSA 632-A:2 through RSA 632-A:5. 
• Interference with freedom as defined in RSA 633:1 through RSA 633:3-a. 
• Destruction of property as defined in RSA 634:1 and RSA 634:2.
• Unauthorized entry as defined in RSA 635:1 and RSA 635:2.       
• Harassment as defined in RSA 644:4.

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.

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