S.L. v. S.B.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2025-0199, S.L. v. S.B., the court on September 12, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, S.B., appeals a domestic violence final order of protection, see RSA 173-B:5, I (2022), issued by the Circuit Court (Gorman, J.) in favor of the plaintiff, S.L. On appeal, the defendant raises several arguments challenging the trial court's determination that he engaged in abuse. See RSA 173-B:1, I (2022). We affirm.

To obtain relief under RSA chapter 173-B, a plaintiff is required to prove, by a preponderance of the evidence, that the defendant engaged in "abuse."

S.C. v. G.C., 175 N.H. 158, 163 (2022). A finding of "abuse" requires proof that the defendant, who is a family or household member or a current or former sexual or intimate partner of the plaintiff, committed or attempted to commit one or more statutorily enumerated criminal acts, and that such conduct constitutes "a credible present threat to the [plaintiff's] safety." RSA 173-B:1, I; see S.C., 175 N.H. at 163. The trial court "may consider evidence of such acts, regardless of their proximity in time to the filing of the petition, which, in combination with recent conduct, reflects an ongoing pattern of behavior which reasonably causes or has caused the [plaintiff] to fear for his or her safety or well-being." RSA 173-B:1, I.

On appeal, the trial court's findings of fact are final, and we engage in de novo review of questions of law raised by the appealing party. RSA 173-B:3, VI (2022); S.C., 175 N.H. at 162. We review sufficiency of the evidence claims as a matter of law and will uphold the trial court's findings and rulings unless they lack evidentiary support or are tainted by error of law. S.C., 175 N.H. at 162. We view the evidence in the light most favorable to the prevailing party, here, the plaintiff, deferring to the trial court's judgment in evaluating the credibility of the witnesses and the weight of the evidence presented. Id. at 162-63. Viewed most favorably to the plaintiff, the evidence in this case establishes that the parties were in an intimate relationship for approximately two-and-a-half years, cohabiting in the defendant's home with the plaintiff's two children, who were five and eight years old at the time of the final hearing, and with the defendant's child. On February 9, 2025, between 8:00 p.m. and 8:30 p.m., an argument ensued during which the plaintiff told the defendant that she intended to leave him on the following day. The parties had previously

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ended their relationship between June and August 2024, and the subject of the plaintiff again leaving had been a topic of discussion during the week leading up to the February 9 argument. When the plaintiff told the defendant on February 9 that she intended to leave him, he became angry, yelled at the plaintiff to "get the f**k out of his room" and "to go somewhere else," and threw the plaintiff's personal property down the stairs and into the basement. When the plaintiff attempted to open the door leading to the basement in order to retrieve the item, the defendant grabbed the plaintiff from behind with his arm around her neck, pulling her backwards several times in what she described as a "tug of war" between herself and the door until the door released and she fell backward. Following this incident, the plaintiff went into her children's room to sit with them until they fell asleep, and the defendant followed her and told the children about the plaintiff's prior sexual partners. At that point, the plaintiff left with the children, reported the incident to local police, and filed the present petition on the following day.

In addition to the February 9 altercation, the plaintiff described other incidents that had occurred during the course of the parties' relationship that caused her concern. Specifically, she testified that during one incident, following an argument and the plaintiff's refusal to attend certain family events with the defendant, the defendant held a gun to his chin. During another incident in which the defendant was angry with the plaintiff, the plaintiff testified that the defendant broke through a deadbolted garage door and knocked it off its doorframe. Following another argument with the plaintiff, the defendant punched a shower wall out of anger, fracturing the shower wall and injuring his hand. When the parties were separated in June 2024, the plaintiff testified that the defendant called her approximately 38 times during one 40- minute period of time, and that multiple attendees of a birthday party for her had seen him driving by the house where the party was occurring. As a result of the defendant's volatility, which had "increasingly gotten worse" during their relationship, the plaintiff testified that she feared for her safety and the safety of her children following the February 9 incident, and continued to fear the defendant at the time of the evidentiary hearing.

In granting the petition, the trial court found that the defendant engaged in "[a]ssault or reckless conduct as defined in RSA 631:1 through RSA 631:3,"

RSA 173-B:1, I(a), when he "grabbed plaintiff with his arm across her neck and shoulders and pulled her back; she had been attempting to retrieve her personal property that he had thrown down the stairs when he restrained her."

The February 9 assault, according to the trial court, constituted a credible present threat to the plaintiff's safety because

in the past when he was angry at her he punched a shower wall hard enough to break it; he had driven by her house and called her repeatedly in instances when he could not make contact; this type of behavior occurred when the parties' relationship was on a break.

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While he has not threatened plaintiff with a firearm, he did hold one to his own chin when the parties had an argument. She testified credibly as to her fear.

On appeal, the defendant argues that (1) the phone calls could not constitute "abuse" because they did not include threats and did not constitute criminal harassment for purposes of RSA 173-B:1, I(g) and RSA 644:4 (2016 & Supp. 2024); (2) all of the incidents to which the plaintiff testified, other than the February 9 incident, were too remote in time and not directed at the plaintiff to constitute a credible present threat to her safety; (3) none of the incidents to which the plaintiff testified constituted a present, credible threat to the plaintiff's safety because she reunited with the defendant following the repeated phone calls and the driving by of her birthday party, because she did not leave him in the immediate aftermath of the wall-punching incident or the placing of a firearm under his chin, and because she initially intended to remain overnight after the February 9 incident and did not immediately call the police; (4) the plaintiff allegedly only articulated a generalized fear for her safety; (5) the trial court erred by failing to consider that the police did not arrest or charge him after the plaintiff reported the February 9 incident; and (6) the February 9 incident, according to the defendant, was accidental and an attempt to keep her from falling down the stairs. We disagree. At the outset, we emphasize that the act of abuse relied upon by the trial court in granting the protective order was the physical assault that the trial court found occurred on February 9, 2025, not the other incidents described by the plaintiff and found by the trial court to have occurred. Rather, the trial court relied upon the other incidents to support its determination that the February 9 conduct constituted a credible present threat to the plaintiff's safety. This is consistent with RSA 173-B:1, I, which expressly states that the trial court "may consider evidence of such acts, regardless of their proximity in time to the filing of the petition, which, in combination with recent conduct, reflects an ongoing pattern of behavior which reasonably causes or has caused the [plaintiff] to fear for his or her safety or well-being."

Contrary to the defendant's argument, the plaintiff did not testify only to a generalized fear. Rather, she described an increasing volatility in the behavior of the defendant when angered or during arguments that caused her to fear for her safety and the safety of her children when it culminated in the physical assault on February 9, 2025. The February 9 assault was not remote to the filing of the petition, and the mere fact that the plaintiff may have reconciled with the defendant or remained with him following earlier incidents, and may have initially intended to remain in the defendant's home overnight after the February 9 assault, does not mean that the defendant did not pose a credible present threat to her safety. See S.C., 175 N.H. at 163-65. Although the defendant disputed the plaintiff's description of the February 9 incident, the trial court was free to credit the plaintiff's testimony over that of the

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defendant. See id. at 162-63. Finally, the defendant cites no authority standing for the proposition that a decision by law enforcement not to charge a defendant criminally following a report of domestic abuse is dispositive of whether the defendant engaged in abuse for purposes of RSA 173-B:5. Nor are we aware of any such authority. Viewing the evidence in this case in the light most favorable to the plaintiff, we conclude that the trial court's findings and rulings are neither lacking in evidentiary support nor tainted by error of law. See id. at 162.

Affirmed.

MacDonald, C.J., and Donovan and Countway, JJ., concurred.

Timothy A. Gudas, Clerk