In re Peirano

• Decision Date: 20 July 2007
• Docket Number: No. 2005–604.,2005–604.
• Court: New Hampshire Supreme Court
• Parties: In the Matter of James J. PEIRANO and Sharon L. Larsen.

155 N.H. 738

930 A.2d 1165

In the Matter of James J. PEIRANO and Sharon L. Larsen.

No. 2005–604.

Supreme Court of New Hampshire.

Argued: April 3, 2007.

Opinion Issued: July 20, 2007.

Rehearing Denied Aug. 20, 2007.

The Legal Connection, P.C., of Concord (Michael Bedard on the brief and orally), for the petitioner.

Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the brief and orally), for the respondent.

HICKS, J.

The petitioner, James J. Peirano, Jr., appeals from a final order of the Salem Family Division (Hurd, J.). The respondent, Sharon L. Larsen, cross-appeals. We affirm in part, reverse in part and remand.

I. Background

The record supports the following. The petitioner and the respondent married in May 1991 and had one child in January 1992. In August 2000, a domestic violence final order was issued against the petitioner pursuant to RSA chapter 173–B (2002 & Supp.2006) based upon the respondent's allegation that he assaulted her on July 14, 2000, while she was attempting to leave the house with their daughter. As a result, the petitioner was ordered to temporarily relinquish his numerous firearms and was prohibited from purchasing or obtaining any firearms during the pendency of the order. See RSA 173–B:5, II (2002). The order also awarded custody of the parties' daughter to the respondent, while providing for unsupervised visitation with the petitioner three days a week. In November 2000, the Derry Family Division issued an ex parte order limiting the petitioner to supervised visitation for reasons which are unclear from the record. In conjunction with the domestic violence order, the Derry Family Division appointed a Guardian Ad Litem (GAL) for the parties' daughter.

In September 2000, the petitioner filed a petition for legal separation in the superior court, alleging that irreconcilable differences caused the irremediable breakdown of the marriage. Following a temporary hearing in November 2000, the court issued an interim decree ordering the respondent to pay the petitioner $1,800 per month as temporary spousal support. The respondent and her attorney were not present at the hearing due to a mistake on their part regarding the date of the hearing.

On November 18, 2000, the respondent filed a cross-petition seeking a fault-based divorce based upon the petitioner's extreme cruelty, or, in the alternative, the petitioner's treatment of the respondent which injured her health and endangered her reason. See RSA 458:7, III, V (2004). The respondent requested: a "disparate share" of the marital estate under RSA 458:16–a, II (2004) due in part to the fault of the petitioner; and a permanent restraining order consistent with the requirements of 18 U.S.C. § 922(d)(8) (2000). The respondent also filed a motion requesting that the court hold a temporary hearing to reconsider the November 13, 2000 alimony order nunc pro tunc. Without holding a hearing, the court granted the motion to reconsider over the petitioner's objection. The court also transferred the matter to the Derry Family Division, where the domestic violence proceeding was held, at the request of the respondent.

In November 2000, the GAL filed a motion to withdraw, which was granted by the Derry Family Division. The court then appointed Debora A. Blake as the GAL for the parties' daughter. It was later revealed during her testimony that although Blake was a Massachusetts attorney, she was not licensed to practice law in New Hampshire.

In June 2001, the petitioner's supervised visitation rights were terminated by the Merrimack County Supervision Center because the petitioner failed to follow the center's rules regarding visitation procedures.

The petitioner has not seen his daughter since then.

In September 2001, after an August 2001 restraining order had expired, the Brentwood Family Division extended the order until August 2002. Although the petitioner had not harassed or bothered the respondent for several months, the court noted that the parties were going through a contentious divorce and found that the respondent was in fear for her safety.

In August 2004, the respondent filed a "Motion for Immediate Ex Parte Restraining Order." See RSA 458:16 (2004). One day later, the Derry Family Division granted the motion and issued a restraining order prohibiting the petitioner from having any contact with the respondent or his daughter. On March 23, 2005, the Salem Family Division reissued the order.

In August 2004, the Salem Family Division (Sadler, J.) held a two-day hearing for purposes of obtaining the GAL's testimony. Both the petitioner, who appeared pro se, and the respondent's counsel questioned her.

In March 2005, the Salem Family Division issued a pretrial conference order scheduling four days of trial beginning April 29, 2005. The court scheduled one day for the respondent, who was represented by counsel, to present evidence; two days for the petitioner, who would appear pro se, to present evidence; and three hours for each party on the final day for cross-examination.

On April 29, 2005, the first day of trial, the respondent, through her attorney, examined her five witnesses. After the direct examination of the respondent's first witness, the petitioner requested that he be permitted to conduct his cross-examination. The court denied his request, informing him that time had been scheduled on the fourth day of trial for cross-examination. The petitioner did not cross-examine any of the respondent's witnesses until the scheduled time on the last day of trial.

On June 27, 2005, the court issued its final order and divorce decree. The court granted the respondent's cross-petition for a fault-based divorce "on the grounds that during the marriage [the petitioner] treated her in such a [manner] as to injure her health and endanger her reason." See RSA 458:7, V. The March 23, 2005 restraining order was continued in effect pending further order of the court upon the court's finding that "[t]he Respondent is genuinely in fear for her safety as a result of the acts and credible threats of the Petitioner."

On the issues of visitation and custody, after finding that the respondent was the primary caretaker of the parties' daughter, the court awarded her sole legal and physical custody, and awarded the petitioner supervised visitation rights. The petitioner was ordered to pay the respondent $50 per month as child support.

Finding that the respondent had the ability to pay and the petitioner had the need for alimony, the court awarded the petitioner alimony of $1,300 per month for two years. The court awarded the marital residence to the respondent and equitably divided the parties' remaining assets. As a part of this division, the court ordered that all of the petitioner's firearms and other weapons be sold, with the proceeds being awarded to him.

The petitioner appeals, arguing: (1) the trial court denied him due process by preventing him from cross-examining some of the respondent's witnesses, and not allowing cross-examination until weeks after direct examination; (2) he was denied due process when the court granted non-verified motions without a hearing; (3) the GAL was unqualified and appointed in violation of RSA 458:17–a ; (4) the court erred in its findings and rulings of law on the issues of alimony, visitation, division of the assets, continuation of the restraining order, and its fault-finding; and (5) the court erred in ordering the sale of the petitioner's firearms.

The respondent cross-appeals, arguing that the trial court erred in: (1) awarding the petitioner visitation; (2) awarding the petitioner alimony; and (3) dividing the parties' assets.

II. Issues on Appeal

A. Due Process

Citing Part I, Article 15 of the New Hampshire Constitution, the petitioner first argues that he was denied procedural due process because: (1) he was prevented from cross-examining some witnesses, and not allowed to cross-examine others until weeks after direct examination; and (2) the court granted the respondent's non-verified motion to reconsider the November 2000 alimony order nunc pro tunc without holding a hearing. The petitioner further argues that the trial court violated Superior Court Rule 57 because the respondent's motion was not supported by proper affidavit, and was based upon facts not in evidence.

To trigger a constitutional analysis on appeal, the appealing party must raise the constitutional issue below. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163 (1986). A review of the record before us reveals that the petitioner did not raise a constitutional argument before the trial court in response to its denial of his request to cross-examine witnesses immediately following the direct examination. Although the defendant stated that he wished to cross-examine the respondent's first witness "now," when the court informed him that all cross-examinations would take place on the last day of trial, the petitioner acquiesced and said nothing further. See State v. Porter, 144 N.H. 96, 100, 738 A.2d 1271 (1999) (declining to review defendant's argument that he was precluded from cross-examining the victim where defendant "did not object to the trial court's ruling, but rather acquiesced to it"). This single statement "was not sufficient to put anyone on notice that he ... meant to raise a constitutional issue." Appeal of Bosselait, 130 N.H. 604, 607, 547 A.2d 682 (1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 797, 102 L.Ed.2d 788 (1989) ; see also Appeal of Kaplan, 153 N.H. 296, 301–02, 893 A.2d 669 (2006).

The record also reveals that the petitioner never raised a due process argument before the trial court in response to the court's grant of the respondent's motion to reconsider alimony nunc pro tunc. Nor is there evidence that the petitioner raised a Superior Court Rule 57 argument before the trial court on this issue. Although the petitioner, who was represented by counsel at this time, filed an objection to the motion, the objection contained...