McNair v. McNair

• Decision Date: 30 August 2004
• Docket Number: No. 2003–704.,2003–704.
• Citation: 151 N.H. 343,856 A.2d 5
• Court: New Hampshire Supreme Court
• Parties: Heidi McNAIR v. Ryan McNAIR.

151 N.H. 343

856 A.2d 5

Heidi McNAIR

v.Ryan McNAIR.

No. 2003–704.

Supreme Court of New Hampshire.

Argued: May 13, 2004.

Opinion Issued: Aug. 30, 2004.

Bronwyn Asplund–Walsh, of Franklin, by brief and orally, for the plaintiff.

Gabriel Nizetic, of Plymouth, by brief and orally, for the defendant.

NADEAU, J.

The defendant, Ryan McNair, appeals orders of the Plymouth Family Division (Carbon , J.) relating to a domestic violence petition filed against him by the plaintiff, Heidi McNair. We affirm.

On April 10, 2003, the plaintiff filed a domestic violence petition with the Plymouth Family Division stating that she and the defendant were separated and listing an address in Texas for the defendant. She alleged a "violent past" between herself and the defendant, including hitting, screaming, throwing things at her and sexual assault, and claimed that the same abuse had happened to her children. She stated that she "believe[d] in all [her] heart that he would show up in this state to kill me [and] take the children."

The defendant filed a motion to dismiss, arguing that the court lacked personal jurisdiction over him. The court denied the motion, stating:

[I]t is both fair and reasonable for New Hampshire to exercise jurisdiction because the Plaintiff and the minor children reside in this State, because the abuse has occurred within this jurisdiction and because the only other court exercising jurisdiction [i.e. , the Texas court that had issued temporary divorce orders] issued orders specifically stating that the New Hampshire DSS [DCYF] may issue restrictions governing the Defendant's behavior.

Judge Carbon also noted that she had communicated with the Texas court pursuant to the Uniform Child Custody Jurisdiction Act, and that "the Texas court ha[d] concurred that New Hampshire may exercise emergency jurisdiction."

Prior to the final hearing on the domestic violence petition, the Texas court issued a final divorce decree. The defendant was granted the "exclusive right to determine the children's primary physical residence." In addition, the Texas court ruled that "having heard allegations of domestic violence in the form of sexual abuse, [it] finds that there is no credible evidence supporting the allegations that any domestic violence occurred between the parties or the children that are the subject of this suit."

The defendant filed a second motion to dismiss in the New Hampshire domestic violence proceeding. First, noting that the plaintiff's domestic violence petition requested temporary custody of the children, the defendant argued that the Plymouth Family Division "d[id] not have the authority to grant the [plaintiff] custody ... in contravention of Texas' custodial order and decree." The defendant further argued that the plaintiff was precluded by the doctrines of res judicata and collateral estoppel from relitigating in New Hampshire any claims of domestic or sexual abuse.

The court denied the defendant's second motion to dismiss and entered a final domestic violence order. The court concluded that the Texas divorce decree did not preclude the issuance of appropriate orders in New Hampshire. The court noted that the Texas divorce decree was issued by default due to the plaintiff's failure to appear and answer. The plaintiff averred, however, that she had not been informed of the date of the final hearing in Texas despite having contacted the clerk's office many times to request such notice. The court stated:

This Court has confirmed with the Clerk's office of the Uvalde County 38th Judicial District Court that Ms. McNair did indeed call on numerous occasions advising the Court that she had not yet secured an attorney, and further requesting to be advised when a final hearing would be scheduled. The Texas Court Clerk's office also confirmed that they did not advise Ms. McNair of any final hearing date, despite her many requests.

The court therefore concluded that the plaintiff "was never given an opportunity to be heard."

In addition, the court held:

Where Texas was aware that emergency proceedings were pending in New Hampshire, and where Texas was aware of concerns about the safety of the children as articulated in their own temporary orders from 2001, and based upon the telephone conversation between the justices of the two courts, this Court finds that it is appropriate to exercise authority over these proceedings, notwithstanding a Default Decree of Divorce issued in Texas.

After issuance of the final order, the defendant filed a motion to recuse Judge Carbon based, in part, upon her communication with the clerk of the Texas court. The defendant requested that all outstanding orders by Judge Carbon be vacated and that the case proceed before another judge.

The court ruled on the motion to recuse by noting that although she "d[id] not believe that any communication with the Texas court was inappropriate," she "would not want for any party to believe that he or she did not have a full and fair opportunity to be heard by a fair, impartial and objective jurist." Accordingly, the court stated that it would decline to preside over further hearings in this matter and would assign another judge should further hearings be required.

In addition, in light of new information elicited in related child protection proceedings, the court vacated the portion of the final domestic violence order regarding custody of the children and held that "New Hampshire must accord the default judgment full faith and credit as to the custody orders." It ordered that the protective provisions regarding the plaintiff, however, remain in effect, stating that "[i]ssuance of custody orders in one jurisdiction does not ... preclude issuance of protective orders for an adult victim of domestic violence in another jurisdiction."

On appeal, the defendant argues that: (1) the Family Division lacked personal jurisdiction over him because he is "a non-resident who was not alleged to have committed any act within New Hampshire;" (2) the Family Division lacked subject matter jurisdiction because no conduct occurring in New Hampshire was alleged and assumption of jurisdiction would contravene a custodial order entered by a Texas court; (3) the Family Division was prohibited by res judicata and collateral estoppel from hearing issues previously decided by a Texas court; (4) the Family Division lacked authority to invalidate or contravene a final divorce decree issued by a Texas court; (5) the Family Division judge took part in an improper ex parte investigation of facts when she spoke to staff of a Texas court; and (6) the Family Division erred in holding itself not bound by Fichtner v. Pittsley, 146 N.H. 512, 774 A.2d 1239 (2001).

We first address the issue of personal jurisdiction over the defendant. "Determining whether a defendant is subject to personal jurisdiction involves a two-part inquiry. First, the State's long-arm statute must authorize such jurisdiction. Second, the requirements of the Federal Due Process clause must be satisfied." Lyme Timber Co. v. DSF Investors, 150 N.H. 557, 559, 842 A.2d 115 (2004) (citation omitted).

The defendant argues that "[t]here is no long arm statute applicable in this case and RSA 173–B provides no extended jurisdiction." The plaintiff contends that personal jurisdiction was conferred by New Hampshire's general long-arm statute, RSA 510:4, I (1997). RSA 510:4, I, provides:

Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.

We have held that this statute "must be construed in its broadest legal sense to give effect to the legislative intent," Tavoularis v. Womer,

123 N.H. 423, 426, 462 A.2d 110 (1983), which was "to provide resident plaintiffs a convenient forum in which to sue for injuries attributable to foreign defendants," Phelps v. Kingston, 130 N.H. 166, 171, 536 A.2d 740 (1987).

The defendant argues that RSA 510:4, I, is inapplicable because: (1) RSA 510:4, I, extends jurisdiction to persons who commit torts within, not outside, New Hampshire; (2) RSA 510:4, I, was enacted before RSA chapter 173–B, negating any inference that RSA 510:4, I, was intended to provide plaintiffs a convenient forum with respect to domestic violence actions; (3) this case sounds in equity, not tort; and (4) even if the defendant did commit a tort against the parties' daughter in New Hampshire, the daughter is not the plaintiff in the instant action.

We reject the defendant's first argument because we have held that where the only occurrence in New Hampshire is the injury resulting from an out-of-state tort, New Hampshire courts are not precluded from subjecting a nonresident to their jurisdiction under the long arm statute. Tavoularis , 123 N.H. at 426, 462 A.2d 110. The plaintiff alleged that the defendant directed threatening telephone calls to her in New Hampshire; thus, any injury related to those calls presumably occurred in this State.

As the defendant's second and third arguments are related, we will address them together. In Hutchings v. Lee, 119 N.H. 85, 88, 398 A.2d 68 (1979), we noted that RSA 510:4 "by its terms confers in personam jurisdiction for ‘any cause of action’ arising out of the defendant's tortious acts within the State." We therefore saw no reason to hold jurisdiction lacking "merely because the plaintiff seeks relief at equity rather than law." Hutchings , 119 N.H. at 88, 398 A.2d 68. Thus, the defendant's third argument, namely, that RSA 510:4, I, is inapplicable because this proceeding is an equity action rather than a tort case, is unavailing so long as the defendant's conduct constitutes a "tortious act" under RSA...