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

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.

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A principal obligation of parenthood is to claim certain rights and privileges on behalf of one’s child, as well as make decisions the child is considered incompetent to make on their own. Whether a five-year-old should have an elective tonsillectomy, for example, is more a decision for the child’s parent then for the child herself. Likewise, if a doctor engaged in malpractice while caring for one’s child, the parent would bring the claim on behalf of the injured minor.

However, the water becomes murkier when dealing with children’s medical records and a parent’s access to those records. In the Matter of Berg v. Berg, the father demanded access to his children’s medical records, arguing that his legal rights as a parent overrides the children’s right to privacy. The children’s therapists and the guardian ad litem moved to seal the children’s records, which the trial court denied. The case went to the New Hampshire Supreme Court to answer the following questions: 

1.      Do children have a right to privacy for their medical records and communications?

2.      Does the court have the authority to seal the therapy records of the parties’ minor children when one parent demands access to the records for purposes of litigation?

3.      Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records.

The Supreme Court overruled the trial court, and answered the three questions in the affirmative. The court found that when parents enter into an acrimonious, contested custody battle, the personal interests of the parents could become adverse to the children’s interests.  The court went on:

Where the privilege is claimed on behalf of the parent rather than that of the child, or where the welfare and interest of the minor will not be protected, a parent should not be permitted to either claim the privilege or, for that matter, to waive it.

The court further justified their holding by noting that, under some circumstances, allowing the parent unfettered access to the child’s therapy records may deny the children the right to effective medical care by destroying the “atmosphere of confidence and trust” that is fundamental for effective therapeutic counseling. 

It is also worth noting that while a parent with potentially conflicting motives cannot assert or waive the privilege on behalf of the child, a neutral GAL may do so. Furthermore, a sufficiently mature child can claim the privilege on their own behalf. In determining whether or not to allow a minor to assert the privilege, at the trial judge’s discretion, the court may consider 1) the child’s age, intelligence and maturity, 2) the intensity with which the child advances his interest, and 3) whether their stated preference is based upon improper influences.

For parents wondering, what does this mean to me, the inquiry the court will make when deciding whether a parent may access their children’s medical records will be whether allowing the parent the right to assert or waive the therapist-client privilege on behalf of their child is in that child’s best interests? If allowing such access would interfere with the child’s ability to succeed in meaningful, productive therapy then it would not be in his best interests and the parent may not waive the privilege on their behalf. If, on the other hand, there is no risk that such disclosure would harm the child, the parents retain the right to waive or claim the privilege.

Crusco Law Office, PPLC Law Clerk Daniel McLaughlin contributed to this post.

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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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In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

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

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The New Hampshire Supreme Court issued an opinion on December 4, 2009 in the case of In the Matter of Adam Muchmore and Amy Jaycox, a domestic relations case pertaining to the modification of a parenting plan. In Muchmore & Jaycox, the Court holds that a parenting plan cannot be modified solely based on the best interests of the child, and instead the modification must comport with the statutory scheme laid out in RSA 461-A:11. The decision is disappointing, though not unexpected since the Court simply strictly applied the statute, because it prevents parents from modifying a parenting plan for issues such as a new schedule for the transition into kindergarten. Based on this decision, it will be important for the legislature to take action to allow modifications to a parenting schedule that do not rise to the level of the factors enumerated in the statute.

As background, Adam Muchmore and Amy Jaycox are parents of a minor child born in 2006. They previously resided in Vermont but have each since moved to New Hampshire. A June 2007 Vermont Order granted Amy Lecroix “primary legal and physical parental rights and responsibilities” for the child and allowed the petitioner, Adam Muchmore, regular weekly contact with the child.

In July 2008, Muchmore petitioned the Lebanon Family Division to modify the parenting plan pursuant to RSA 461-A:11, claiming that (1) Jaycox had “repeatedly, intentionally, and without justification” interfered with his parental responsibilities for the child and modification would be in the child’s best interests; (2) that there was clear and convincing evidence that the child’s present environment was harmful to her; and (3) because of the respondent’s conduct, the original allocation of parental rights and responsibilities was not working.

The Lebanon Family Division ruled that Muchmore had failed to meet his burden of proof with regard to each of the reasons for modification he cited, pursuant to 461-A:11; I(b), I(c), and I(d). The court went on to hold, however, that Muchmore’s petition was “sufficient to establish that modifying the parties’ parenting schedule would be in the child’s best interests, and that, pursuant to RSA 461-A:4 (Supp. 2008), proof that modification was in the child’s best interests was all that was required.” Jacox appealed to the Supreme Court.

The Supreme Court acknowledged that the circumstances under which a parent may seek modification of an existing parenting plans is governed by RSA 461-A:11, and concluded that because Muchmore did not meet his burden under that statute that he is not entitled to a modification. Muchmore argued that even if he failed to meet his burden under 461-A:11, a parent should be allowed to modify a parenting plan when the modification is in the best interests of the child, citing 461-A:4 as support for his assertion. The court held that even though 461-A:4 referenced a “proceeding to establish or modify”, that statute was aimed at the initial construction of a parenting plan while 461-A:11 governed actual modifications. 

The Court recognized in its opinion that this result was somewhat regrettable in that it prevented a court from “reassessing the best interests of a child in circumstances where the parents are not interfering and where the child’s current environment is not detrimental,” those circumstances being the majority of cases in practice. However, the Court continues, “RSA 461-A:11, I, does not grant the court discretion to modify an existing plan under any other circumstances” and that it is not up to the court to solve that problem or “to speculate as to how the legislature might choose to do so.” (Emphasis added). Simply put, the court is saying that if the legislature wanted to include a provision for the best interests of the child in 461-A:11 it could have chosen to do so. The Court, in the end, relies on strict statutory interpretation and deference to the public policy decisions of the legislature to assert that their hands were effectively tied.

However, without a provision to allow for some limited modifications based on best interests, a parenting plan that addresses the needs of a toddler may have to do for a tween. The parenting plan form itself encourages parents to view the plan as a work in progress as the children grow and their needs change from infant to teen, but the statute itself does not allow for the changes except in the case that the parents agree or major issues develop as set forth in 461-A:11. It is certainly understandable that the legislature would not include a best interests standard for change in major categories such a primary residential responsibility, as this would just encourage more litigation and allow parents to petition the court for modification whenever they might have the upper hand. However, for routine and holiday schedule changes or other issues that do not call for a change in residential responsibility, there needs to be a mechanism to allow for modification based on best interests so that the court may tweak a parenting plan as the current needs of the child dictate.  

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

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