Walker v. Walker

• Decision Date: 17 April 2009
• Docket Number: No. 2008–526.,2008–526.
• Citation: 158 N.H. 602,972 A.2d 1083
• Court: New Hampshire Supreme Court
• Parties: Lynette WALKER v. Clifford WALKER.

158 N.H. 602

972 A.2d 1083

Lynette WALKER

v.Clifford WALKER.

No. 2008–526.

Supreme Court of New Hampshire.

Argued: Feb. 25, 2009.

Opinion Issued: April 17, 2009.

Kalled Law Offices, PLLC, of Ossipee (John P. Kalled on the brief and orally), for the plaintiff.

Small & Lyons, of Nashua (Daniel R. Krislov on the brief and orally), for the defendant.

HICKS, J.

The defendant, Clifford Walker, appeals an order of the Trial Court (Moore, J.) granting the plaintiff, Lynette Walker, a final domestic violence protective order. See RSA 173–B:5 (Supp.2008). We affirm.

The record supports the following. The plaintiff and defendant are married and have three minor children. At all times relevant to this appeal, the defendant lived and worked in Thetford, Vermont, while the plaintiff and children resided in Nashua. The defendant visited his wife and children on weekends. For several months prior to the domestic violence petition, the two had a series of "conversations" regarding whether the plaintiff intended to leave the defendant and seek custody of the children. After one of these conversations, the plaintiff researched "the laws ... concerning custody," wrote "down several things" and placed them in her pocketbook.

During the 2008 Memorial Day weekend, while the family was at the plaintiff's family camp, the defendant came across the written materials in the plaintiff's pocketbook. The plaintiff maintains that the defendant searched her purse without permission, while the defendant claims that he "hooked" the open pocketbook as he walked by, causing it to fall and spill its contents. The two had another "discussion." The plaintiff testified that, upon finding this information, the defendant did not "trust [her], ... was afraid that [she] was going to leave and ... take the children, [and] ... wanted [her] to immediately move to ... Vermont with the children." She testified that he became upset after she declined. Although he did not strike or specifically threaten to strike her, the plaintiff interpreted his behavior as a threat to her life.

On the following Tuesday, May 27, 2008, the plaintiff petitioned for a temporary protective order. She alleged that she was in immediate danger because, upon finding the information in her pocketbook, the defendant stated to her that "he is coming to take [the children] at whatever cost and not to get in his way." She alleged that the defendant "ha[d] threatened [her] on numerous occasions that if [she left] him he would do whatever he had to do to take away [their] children," that he possessed a ".45 pistol[and] numerous knives" and that he "carries [the] unregistered .45 pistol in [their] vehicle at all times." Finally, she alleged that the defendant removed her credit cards, debit card and check book from her purse.

The Nashua District Court (Leary, J.) held an ex parte hearing the same day. The court questioned the plaintiff about her understanding of the alleged threat. She explained that she understood his threat as one to her life and safety and that she intended the allegation within her petition to convey as much. She elaborated that the allegations in her petition were only those from the most recent conversation and that the defendant specifically threatened her life on other recent occasions. During or just after the hearing, the court, with the plaintiff's permission, added the following sentence to the plaintiff's petition in the space for additional facts: "He has threatened to kill her in the past and plaintiff takes ‘at whatever cost’ ... to mean to kill her[.]" It then granted a temporary protective order.

The District Court (Moore, J.) conducted a plenary hearing on June 4, 2008, at which it received evidence and heard sworn testimony from the plaintiff, the defendant and his mother.

The plaintiff testified that most of the defendant's recent threats have "been in reference to [their] children." The substance of the threats was either "to kill [her]" or to "do whatever [he has] to do to get [his] children back." Her understanding of the latter threat is that "he's saying the same thing no matter how it's phrased ..., [that] if [she] should leave him and take [their] children, that he is going to do [her] physical harm." She testified that the defendant acquired a .45 pistol in April 2008, that he carries the pistol and often one knife from his collection, and that he has issued at least one threat to her while holding the firearm.

The defendant denied threatening the plaintiff. He testified that his statements meant that he would do anything to get custody of the children "within the means of the law." He testified that he took the plaintiff's credit cards, debit card and checkbook with her permission. The defendant's mother corroborated parts of his testimony.

After the plenary hearing, the court granted a final protective order. See RSA 173–B:5, I. It first ruled that the defendant committed criminal threatening, and found that a credible threat to the plaintiff's safety existed because "the Plaintiff reasonably believes that the Defendant has the ability to carry out his threats of physical harm."

The defendant moved for reconsideration. The trial court denied this motion. On appeal, the defendant argues that: (1) the trial court exceeded its authority by adding the explanatory text to the domestic violence petition; (2) denying his motion to reconsider was an unsustainable exercise of discretion; and (3) there was insufficient evidence in the record to support a finding of abuse.

"The purpose of [RSA chapter 173–B] is ‘to preserve and protect the safety of the family unit for all family ... members by entitling victims of domestic violence to immediate and effective police protection and judicial relief.’ " In the Matter of Morrill and Morrill, 147 N.H. 116, 117, 784 A.2d 690 (2001) (quoting Laws 1979, 377:1, II).

"Any person may seek relief pursuant to RSA 173–B:5 by filing a petition ... alleging abuse by the defendant." RSA 173–B:3, I (2002). " ‘Abuse’ means the commission or attempted commission of one or more [enumerated acts,]" RSA 173–B:1, I (2002), including "[c]riminal threatening as defined in RSA 631:4," RSA 173–B:1, I(b), when such act "constitutes a credible threat to the plaintiff's safety," RSA 173–B:1, I. The plaintiff must show abuse by a preponderance of the evidence. RSA 173–B:5, I. "A finding of abuse shall mean the defendant represents a credible threat to the safety of the plaintiff." Id.

I

The defendant first argues that the trial court lacked statutory authority to insert the explanatory sentence into the petition. The defendant's argument requires us to construe RSA 173–B:3, I.

The interpretation of a statute is a question of law, which we review de novo. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. When the language of a statute is clear on its face, its meaning is not subject to modification. We will neither consider what the legislature might have said nor add words that it did not see fit to include.

In the Matter of Aldrich & Gauthier, 156 N.H. 33, 34, 930 A.2d 393 (2007) (citations omitted).

The relevant text of RSA 173–B:3, I, provides that "[t]he plaintiff shall be permitted to supplement or amend the petition only if the defendant is provided an opportunity prior to the hearing to respond to the supplemental or amended petition." RSA 173–B:3, I. The defendant acknowledges that, prior to the final, plenary hearing, he received notice of the explanatory sentence inserted into the petition. The only question before us, therefore, is whether "[t]he plaintiff ... supplement[ed] or amend[ed] the petition," RSA 173–B:3, I.

We hold that the plaintiff, and not the court, amended the petition. This is primarily because the explanatory sentence merely clarified the plaintiff's own allegation that the defendant threatened to take the children "at whatever cost." Although the court acted as scrivener by physically writing the explanatory text on the petition, the plaintiff effected the clarifying amendment through her testimony at the ex parte hearing. It is well within the court's power to document and record the clarification of an allegation in the interest of narrowing the issues to only those that are contested, cf. In re Ronnie Prime, 120 N.H. 849, 850, 424 A.2d 804 (1980) ( "As long as a judge maintains his impartiality, he has the right to question a witness in order to clarify the testimony."), and facilitating meaningful judicial review of its disposition, see In the Matter of Gordon and Gordon, 147 N.H. 693, 700, 797 A.2d 867 (2002) (recognizing for purposes of child support award that, although no statute expressly requires trial court "to calculate the guidelines award before determining that an adjustment would be appropriate[,] ... a specific finding ... will facilitate our review").

The defendant further argues that the trial court compromised its impartiality by "act[ing] as the attorney for the Plaintiff" and prosecuting the action in violation of due process and separation of powers. We disagree.

The State Constitution plainly forbids judges from acting as counsel to any party. See N.H. CONST. pt. II, art. 79. Consistent with this mandate, the court neither advocated for the plaintiff nor provided her with legal advice. Nor did it undertake any prosecutorial function. The court simply discharged its duty to determine and document whether the statutory standard was met. Temporary relief was warranted only if there was "an immediate and present danger of abuse," RSA 173–B:4, I (2002). In the course of its inquiry, the court sought to clarify an ambiguous allegation. "It is the judge's duty to understand the testimony since it is he ... who must determine whether ... the statutory standard" has been met. In re Ronnie Prime, 120...