Continuance Discretion and Proof of Fear in Civil Stalking Orders Under RSA 633:3-a

1. Introduction

In C.A. v. D.N. (No. 2025-0579) and D.W. v. D.N. (No. 2025-0580), the Supreme Court of New Hampshire affirmed two civil stalking final orders of protection entered by the Circuit Court (Lombardi, J.) under RSA 633:3-a (Supp. 2025).

The plaintiffs, C.A. and D.W., are a couple living together. The defendant, D.N., is their neighbor. Each plaintiff filed a civil stalking petition alleging that the defendant’s escalating behavior caused fear for personal safety. The alleged conduct spanned multiple days and included: placing trash under a windshield wiper, throwing a bag of blueberries, tape placed over a doorbell camera, leaving cigarette butts on the porch, prolonged verbal abuse, spitting in D.W.’s direction, and a threat to “slap [C.A.] in her f**king mouth,” along with prior yelling and threats toward C.A. while walking her dog.

On appeal, the defendant raised two principal issues: (1) whether the trial court erred by denying his second motion to continue the final hearing so he could retain counsel; and (2) whether the evidence was insufficient to prove “stalking” as defined by RSA 633:3-a, including the requirement that each plaintiff was “actually placed in such fear.”

2. Summary of the Opinion

The Supreme Court resolved the appeals by order under Sup. Ct. R. 20(3) and affirmed. It held:

  • The trial court did not unsustainably exercise its discretion in denying the defendant’s second continuance request, particularly where the hearing had already been continued once and the defendant had more than a month after the initial filing to seek counsel.
  • The evidence—viewed in the light most favorable to the plaintiffs—supported findings that the defendant purposely engaged in a targeted “course of conduct” that would cause a reasonable person to fear for personal safety and that the plaintiffs were actually placed in fear, as required by RSA 633:3-a, I(a).
  • Several constitutional/procedural complaints (including objections to the “adopt the petition as testimony” practice and claims about cross-examination) were rejected as not preserved because they were not raised in the trial court.

3. Analysis

A. Precedents Cited

Although the disposition is concise, the court anchored its review in established New Hampshire standards governing continuances, preservation, and sufficiency review.

1) In the Matter of Kempton & Kempton, 167 N.H. 785, 793 (2015)

Kempton supplies the controlling standard for continuances: granting or denying a continuance lies within the “sound discretion” of the trial court, and the Supreme Court will not disturb that decision absent an “unsustainable exercise of discretion.” The court used Kempton to frame the question as not whether another judge might have continued the hearing, but whether the denial was clearly unreasonable in light of the circumstances (timing, prior continuance, the parties’ interests, and the status of protective relief).

2) Sheedy v. Merrimack Cty. Super. Ct., 128 N.H. 51, 56 (1986)

The defendant argued, in substance, that fairness required counsel because plaintiffs had counsel and the issues were complex. The court invoked Sheedy (by analogy, “Cf.”) to underscore a key limitation in civil proceedings: even where a litigant is self-represented, the need for counsel is not presumed. Sheedy reflects the principle that the absence of counsel does not itself establish error unless the litigant shows the issues are sufficiently complex or the litigant is incapable of self-advocacy to a degree implicating fairness concerns. Here, the court rejected the idea that plaintiffs’ representation and the subject matter automatically “necessitated” counsel for the defendant.

3) State v. Winstead, 150 N.H. 244, 246 (2003)

Winstead provides the preservation rule: issues not raised in the trial court generally cannot be raised for the first time on appeal. The court relied on Winstead multiple times to dispose of arguments framed as constitutional objections—such as a claimed constitutional right to counsel in this posture, objections to D.W.’s adoption of his petition statements as testimony, and complaints about cross-examination—because the defendant did not demonstrate he raised them below.

4) In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006)

Birmingham reinforces that self-represented litigants are held to the same procedural rules as represented parties. The court used this principle to support the conclusion that the defendant’s failure to preserve issues could not be excused by his self-represented status.

5) S.C. v. G.C., 175 N.H. 158, 162-63 (2022)

S.C. supplies the framework for sufficiency review in civil stalking appeals: the Supreme Court reviews sufficiency “as a matter of law,” defers to the trial court on credibility and weight, and views the record in the light most favorable to the prevailing party. This standard was outcome-determinative because the record included sworn testimony, video evidence, and the defendant’s own admissions about “confront[ing]” the plaintiffs. Under S.C., the appellate court would not reweigh that evidence or substitute its view of credibility.

6) State v. Blackmer, 149 N.H. 47, 49 (2003)

Blackmer stands for waiver on appeal: issues mentioned in a notice of appeal but not briefed are deemed waived. The court relied on this to narrow the appellate controversy to properly briefed claims and to prevent expansion of issues beyond what the defendant developed in argument.

B. Legal Reasoning

1) Denial of the second continuance: discretionary balancing, not automatic accommodation

The defendant sought a second continuance (for a “minimum” of two months) on the eve of the hearing to retain counsel, citing both these civil cases and a related criminal matter. The trial court denied the request based on:

  • the hearing had already been continued once at the defendant’s request (over C.A.’s objection);
  • the petitions had been filed July 15—over a month before the August 27 final hearing—providing time to seek counsel;
  • C.A. asserted distress and wanted a final order; and
  • no temporary order protected D.W., giving D.W. a strong interest in prompt adjudication.

Applying In the Matter of Kempton & Kempton, the Supreme Court held the denial was not “clearly unreasonable.” Notably, the court treated the status of interim relief as relevant: even if C.A. remained protected by a temporary order, D.W. was not. The decision therefore signals that in multi-petitioner settings, trial courts may consider each petitioner’s protection posture when evaluating continuance requests.

The court also refused to convert the civil protective-order hearing into a setting where counsel becomes effectively required whenever the other side has counsel. Relying on Sheedy v. Merrimack Cty. Super. Ct. by analogy, it rejected the argument that the “complexity of the issues” plus plaintiffs’ representation mandated counsel for the defendant.

2) Sufficiency of the evidence under RSA 633:3-a: course of conduct + objective fear + actual fear

The court applied the statutory definition: a person commits stalking if he “[p]urposely, knowingly, or recklessly engages in a course of conduct targeted at a specific person which would cause a reasonable person to fear for his or her personal safety . . . and the person is actually placed in such fear.” RSA 633:3-a, I(a).

It also emphasized the statutory breadth of “[c]ourse of conduct”—“2 or more acts over a period of time, however short, which evidences a continuity of purpose”—and the illustrative acts in RSA 633:3-a, II(a)(1)-(3), (5), including: threatening safety, approaching/confronting, appearing near or entering a residence, and placing an object on property.

Under the S.C. v. G.C. standard (deference to trial court credibility determinations; evidence viewed favorably to the prevailing party), the court held the record supported:

  • Targeted course of conduct: multiple incidents over days—trash placed on the windshield, blueberries thrown, roadway blockage preventing exit, taunting and posturing, tape over the security camera, and a prolonged verbal assault including a threat to hit C.A., along with the jar of cigarette butts on the porch and spitting/instigation behavior.
  • Objective fear: these acts—especially physical intimidation, interference with leaving the property, disabling a security camera, and explicit threats—could cause a reasonable person to fear for personal safety.
  • Actual fear: C.A. testified she “was shaking” during/after the verbal assault and described decreased stress and improved ease after the temporary order. D.W. adopted as true, under oath, the petition allegation that the defendant caused him to fear for his safety.

The opinion also shows how admissions by a respondent can corroborate petitioners’ theory of targeted conduct. The defendant testified he “had no alternative but to go out and confront them,” portraying intentional engagement rather than inadvertence—supporting the trial court’s finding that the conduct was purposeful and directed.

3) Preservation as a decisive gatekeeper

Several of the defendant’s arguments failed not on the merits but on procedure. The court repeatedly invoked State v. Winstead to enforce the rule that constitutional or procedural objections must be raised in the trial court. It also invoked In the Matter of Birmingham & Birmingham to confirm that self-representation does not relax preservation requirements.

This aspect of the decision is practically important: civil stalking hearings often involve expedited schedules and self-represented respondents. The court nevertheless insisted that objections—especially those framed in constitutional terms—must be timely made to create a record and permit the trial court to address and potentially cure alleged errors.

C. Impact

  • Continuance practice in protective-order litigation: The order affirms that trial courts may deny late, second continuance requests to obtain counsel when the respondent had meaningful time to retain counsel and when petitioners have significant safety interests—especially where one petitioner lacks interim protection.
  • Proof of “actual fear” need not be elaborate: The court accepted concrete behavioral/emotional indicators (e.g., “shaking,” reduced stress after an order) and sworn adoption of petition allegations as sufficient, when considered with the totality of the conduct and the deferential standard of review.
  • Reinforcement of deference on appeal: By centering S.C. v. G.C., the court signaled that appeals framed as “rational explanations” for conduct are unlikely to succeed if they merely ask the Supreme Court to reweigh credibility or reinterpret contested events.
  • Procedural discipline for self-represented parties: Through Winstead and Birmingham, the order underscores that self-representation does not excuse failure to preserve objections, and that unbriefed issues will be treated as waived under State v. Blackmer.

4. Complex Concepts Simplified

“Unsustainable exercise of discretion”
A highly deferential appellate standard. The Supreme Court does not ask whether it would have made the same call; it asks whether the trial court’s decision was clearly unreasonable or untenable based on the record.
“Course of conduct” (RSA 633:3-a)
At least two acts over time—“however short”—showing continuity of purpose. The statute expressly includes acts like confronting a person, appearing near their residence, placing objects on their property, or threatening safety.
Objective fear vs. actual fear
The statute requires both: (1) the conduct would cause a reasonable person to fear for personal safety (objective component) and (2) the specific petitioner actually felt that fear (subjective component).
“Preservation”
To raise an issue on appeal—especially constitutional claims—a party generally must have raised it in the trial court at the time of the alleged error, giving the trial judge a chance to address it.
“Sufficiency of the evidence” review
The Supreme Court reviews whether there was evidence supporting the trial court’s findings, but it does not re-decide credibility. It views the evidence most favorably to the party who won below.

5. Conclusion

The Supreme Court of New Hampshire’s order in C.A. v. D.N. and D.W. v. D.N. reinforces three practical rules in civil stalking litigation under RSA 633:3-a: (1) a second, late continuance request to obtain counsel may be denied without error when the respondent had prior opportunity to retain counsel and petitioners have pressing protection interests; (2) a “course of conduct” can be established through multiple escalating neighborhood-confrontation acts recognized by the statute, and “actual fear” may be proven through straightforward testimony and sworn adoption of petition allegations; and (3) appellate review will be tightly constrained by deference to credibility findings and by strict enforcement of preservation and waiver rules.