Achille v. Achille
| Citation | 117 A.3d 1144,167 N.H. 706 |
| Decision Date | 27 May 2015 |
| Docket Number | No. 2014–209,2014–209 |
| Parties | Susan ACHILLE v. George ACHILLE, Jr. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass + Green, P.A., of Manchester (John–Mark Turner and James F. Ogorchock on the brief, and Mr. Ogorchock orally), for the petitioner.
Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F. Connor on the brief and orally), for the respondent.
The respondent, George Achille, Jr., appeals several orders of the Circuit Court (Carbon, J.) arising from a domestic violence petition filed by the petitioner, Susan Achille, in which the trial court: (1) vacated its earlier order which had continued the final hearing in the domestic violence proceeding; (2) denied the respondent's motion to recuse Judge Carbon from presiding over the domestic violence proceeding, despite having granted the respondent's motion to recuse in the parties' divorce proceeding; and (3) entered a final domestic violence protective order. See RSA ch. 173–B (2014 & Supp.2014). We affirm.
The following facts are derived from the trial court's orders or are otherwise drawn from the record. In June 2012, after the parties had been married for more than 30 years, the petitioner filed for a no-fault divorce. At the time, the parties lived in separate residences at the same address.
On the night of December 4, 2012, the respondent went to the petitioner's residence with a box that contained a gun and told her that he was going to use the gun. An argument ensued. The respondent then yelled at the petitioner, pursued her through the home, grabbed her by the hair, threw her against a counter, choked her, slammed a door on her, and pushed her to the floor. According to the petitioner, the respondent had also "hit [her] plenty of times" in the past, including in June 2012 when the respondent had "hit [her] across the face and dislocated [her] jaw." The respondent denied that the abuse occurred, and testified that, on December 4, the petitioner hit him with an umbrella and fell after tripping over a pair of boots.
The next day, the petitioner reported the incident to the police. At that time, she did not tell the police about the gun, press criminal charges against the respondent, or seek a protective order. Later that day, the parties had dinner together at a restaurant. On December 6, they drove together to Manchester for mediation regarding their pending divorce.
On December 7, the petitioner filed a domestic violence petition in which she described the incident that occurred in her home three days earlier. The court issued a temporary domestic violence protective order and scheduled a final hearing for later that month. On December 27, the petitioner wrote to the police, seeking to press charges against the respondent arising out of the December 4 incident. Criminal charges were subsequently filed against the respondent.
During the next year, at the respondent's request, the trial court repeatedly continued the final hearing in the domestic violence case. In December 2013, the trial court ordered that the hearing be rescheduled for "after October 1, 2014" when "the [respondent's] criminal matters have been resolved." Nonetheless, on January 24, 2014, the trial court, sua sponte, vacated its earlier scheduling order and ordered that the matter be set for a final hearing. The court observed that, although the "statutory framework envisions a final hearing within 30 days of the filing of the petition," the final hearing had "been continued multiple times" and 14 months had passed since the date of the petition. The final domestic violence hearing was scheduled for March 6, 2014, the same day as the hearing on the merits in the parties' divorce.
On March 6, the day of the scheduled hearings, the respondent moved to recuse Judge Carbon from both the domestic violence and the divorce proceedings. He argued that recusal was required from both proceedings because the accountant who was scheduled to testify on the respondent's behalf during the divorce proceeding also provided financial services to Judge Carbon. The respondent asserted that, although the accountant "w[ould] not testify in the domestic violence proceeding," an "integral connection" existed between the domestic violence and the divorce proceedings such that Judge Carbon was required to recuse herself from both proceedings.
Following oral argument, Judge Carbon recused herself from the divorce proceeding, observing that the "Court could be accused of either giving undue preference to, or undervaluing the quality of, [the accountant's] testimony" during the divorce hearing. However, she denied the motion seeking her recusal from the domestic violence proceeding, explaining that there was "no conflict of interest, nor any appearance of possible bias resulting from a shared professional when that person has no role whatsoever" in the domestic violence case. Accordingly, Judge Carbon presided over the March 6 domestic violence hearing, and the parties' divorce proceeding was assigned to another judicial officer.
After the domestic violence hearing, the respondent filed a motion to dismiss the domestic violence petition, arguing that "the petition fail[ed] to allege conduct that could reasonably be construed to be abuse under RSA 173–B." The trial court denied the motion and granted a final domestic violence protective order. The trial court credited the petitioner's testimony and concluded The court also found that, given the "long history of abuse" and the fact that the "parties are involved in a contentious divorce," the respondent presented "a credible threat to Petitioner's on-going safety." This appeal followed.
The respondent first contends that, because the accountant's appearance as a witness in the divorce proceeding created an appearance of impropriety, Judge Carbon erred by not recusing herself from the domestic violence proceeding. Pursuant to the Code of Judicial Conduct, "[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Sup.Ct. R. 38, Canon 1.2. Thus, "the Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety." Miller v. Blackden, 154 N.H. 448, 456, 913 A.2d 742 (2006) ; see Sup.Ct. R. 38, Canon 2.11. "Whether an appearance of impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge [her]self, question the impartiality of the court." Miller, 154 N.H. at 456, 913 A.2d 742 (quotation omitted). "The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Id. (quotation omitted).
The respondent argues that Judge Carbon's disqualification from the domestic violence proceeding was required because an appearance of impropriety existed due to the accountant's "role in this case" as a witness in the divorce proceeding "and his current employment by the presiding fact finder." The respondent maintains that, once Judge Carbon recused herself from the divorce proceeding, she should have recused herself from "the case in its entirety," including the domestic violence proceeding, because "recusal on any portion of the proceedings demands complete separation from the case."
In response, the petitioner argues that Judge Carbon did not err because the accountant had "absolutely no role" in the domestic violence proceeding. The petitioner asserts that the parties' divorce is distinct from the domestic violence proceeding and that the respondent erroneously conflates the two. The petitioner also contends that the respondent waived his recusal argument because he waited until the day of the hearings to file the motion. Assuming, without deciding, that the respondent did not waive his recusal argument, we conclude that recusal was not required.
We initially observe that we need not decide whether the respondent is correct in asserting that recusal from one portion of a case requires recusal from the remainder of that case because his argument is premised upon an incorrect characterization of the domestic violence proceeding and the divorce proceeding as components of a single case. Rather, the proceedings are two separate cases.
First, we note that the petitioner sought a divorce based upon the ground of irreconcilable differences, and not based upon fault. See RSA 458:7–a (Supp. 2014). Consequently, the petitioner did not need to demonstrate one of the fault-based grounds, such as the "[e]xtreme cruelty of either party to the other," or that "either party has so treated the other as seriously to injure health or endanger reason." RSA 458:7, III, V (2004); cf. RSA 458:7–a. Therefore, in contrast to a fault-based divorce in which the outcome of a domestic violence proceeding could be relevant to the trial court's consideration of the fault-based grounds, in the context of a no-fault divorce—as we have here—the outcome of a domestic violence proceeding is of little or no relevance.
Furthermore, RSA 458:7–a provides that "[i]n any pleading or hearing of a petition" for a no-fault divorce, "allegations or evidence of specific acts of misconduct shall be improper and inadmissible, except where parental rights and responsibilities are an issue ... or at a hearing where it is determined by the court to be necessary to establish the existence of irreconcilable...
To continue reading
Request your trial
-
S.C. v. G.C., 2021-0194
...findings and rulings of the trial court unless they are lacking in evidentiary support or tainted by error of law. Achille v. Achille, 167 N.H. 706, 715, 117 A.3d 1144 (2015) ; see RSA 173-B:3, VI.2 When performing this review, we accord considerable weight to the trial court's judgments on......
-
Smith v. Pesa
...findings and rulings of the trial court unless they are lacking in evidentiary support or tainted by error of law. Achille v. Achille, 167 N.H. 706, 715, 117 A.3d 1144 (2015). "When performing this review, we accord considerable weight to the trial court's judgments on the credibility of wi......
-
L.C. v. W.C.
...To obtain relief under RSA chapter 173-B, the plaintiff must show "abuse" by a preponderance of the evidence. Achille v. Achille, 167 N.H. 706, 716, 117 A.3d 1144 (2015). RSA 173-B:1, I, defines "abuse" as "the commission or attempted commission" by "a family or household member or by a cur......
-
S.C. v. G.C.
...we accord considerable weight to the trial court's judgments on the credibility of witnesses and the weight to be given testimony. Achille, 167 N.H. at 715-16. We view the evidence in the light most favorable to the prevailing party - here, the defendant. See id. To obtain relief under RSA ......