THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2025-0319, J.M. v. D.E., the court on May 28, 2026, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, D.E., appeals orders of the Circuit Court (Carroll, R., approved by Keating and Lombardi, JJ.) issued following a hearing, granting a domestic violence final order of protection in favor of the plaintiff, J.M., and denying the defendant's motion for reconsideration. See RSA chapter 173-B (2022). The defendant argues that the trial court erred in failing to dismiss the domestic violence petition on grounds of res judicata and collateral estoppel. We affirm. The following facts are supported by the record. On August 5, 2024, the plaintiff filed a domestic violence petition (first petition) in the Circuit Court (McIntyre, J.) alleging that the defendant, her estranged husband, had punched her in the arm while they were driving in a vehicle, broken her vehicle's windshield with a piece of wood while she was in the vehicle, pretended to shoot her with a shotgun, and said he was going to kill her. Following a hearing, the court found that the plaintiff had not been abused "as defined in RSA [chapter] 173-B," and dismissed the case on August 26, 2024. On April 10, 2025, the plaintiff filed a second domestic violence petition (second petition). In that petition and during an ex parte hearing, the plaintiff alleged that: (1) video taken on November 28, 2023, showed the defendant with
"a 9mm handgun in his hand that he keeps loaded" and the defendant saying
"'I'm hunting you honey,'" and "'If I find my f****** keys are stolen by you, you're f****** going to get it'"; (2) the plaintiff is "in fear" of what the defendant might do; (3) she took the video to the police who said they intended to arrest the defendant, and the plaintiff "fears this will anger [the defendant] and, based on his threats in the past that he would shoot her, she fears for her safety"; and (4) the plaintiff believes she has seen the defendant driving by where she stays. The petition also alleged that in May 2024, the defendant threw "a wood block at [the plaintiff's] windshield as [she] attempted to leave (He made a pretend shotgun) [sic] hand gesture."
The defendant filed a verified objection to the second petition, arguing that the plaintiff was "asserting the same allegations that were previously raised" in the first petition and, because "the doctrine of res judicata prevents parties from relitigating matters that were litigated, or could have been
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litigated, in a prior action," the second petition should be dismissed. The circuit court overruled the objection because the defendant "failed to prove that the elements of the previous [petition were identical to those of] the present complaint."
At the final hearing on the second petition, the plaintiff showed the court two videos, one from May 2024 and one from November 2023. The plaintiff explained that the videos had been recorded on a camera installed outside on the parties' property. She testified that she did not introduce the videos at the hearing on the first petition and report the November 2023 incident sooner because "Fish and Game had [her] phone for a year and the video was on it."
The plaintiff testified that she "recently" turned the videos in to the police department and that, "in the past, [the defendant] has told [her] that if [she] ever [goes] to the cops and turn[s] him in for any kind of crime . . . he would kill [her]." She stated that after she provided the videos to the police department two weeks earlier, she believed she saw the defendant driving by her house "a couple times," and she "was afraid that he would get revenge on [her] and afraid to leave the house because he might be waiting for [her]." The May 2024 video showed the defendant throwing a block of wood through her windshield as she was trying to drive away and making the motion of shooting a shotgun at her.
Thereafter, the court entered a domestic violence final order of protection on the second petition, finding that the defendant committed abuse pursuant to RSA chapter 173-B, including assault or reckless conduct, criminal threatening, and destruction of property. Specifically, the court found the defendant committed abuse when he "was viewed in videos threatening the Petitioner [with a] firearm and throwing a 'chunk' of wood [at] a truck in [which] the Petitioner was riding causing the windshield to break." The court also found that the defendant's conduct constitutes a present credible threat to the plaintiff's safety because she "fears Defendant will continue to retaliate." The defendant unsuccessfully moved for reconsideration. This appeal from the orders on the second petition followed.
In an appeal from an order on a domestic violence petition, the trial court's "findings of fact shall be final," and we undertake de novo review of
"questions of law." RSA 173-B:3, VI. The applicability of either res judicata or collateral estoppel presents a question of law that we review de novo. Walker v. Day, 173 N.H. 211, 213 (2020); Barry v. N.H. Dep't of Health and Human Servs., 170 N.H. 364, 367 (2017). The party asserting either preclusion doctrine bears the burden of proving that it applies. Gray v. Kelly, 161 N.H.
160, 164 (2010).
Res judicata precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action. Walker, 173 N.H. at
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213. We have defined the term "cause of action" as the right to recover, regardless of the theory of recovery. Gray, 161 N.H. at 165. Generally, in determining whether two causes of action are the same for res judicata purposes, we consider whether they arise out of the same factual transaction or occurrence. Merriam Farm, Inc. v. Town of Surry, 168 N.H. 197, 199-200 (2015). By contrast, collateral estoppel is a narrower doctrine that bars a party to a prior action, or a person in privity with such a party, from relitigating any issue or fact actually litigated and determined in the prior action. Cook v. Sullivan, 149 N.H. 774, 778 (2003).
The defendant argues that the trial court erred by "failing to apply . . . res judicata to bar the second domestic violence petition filed in . . . April 2025 that relied on the same allegations from 2024 and introduced an incident dating back to 2023." (Capitalization omitted.) He asserts that because the order dismissing the first petition in August 2024 "addressed the wood throwing incident," and the November 2023 incident "could have been litigated"
in the 2024 action,1the trial court "should have precluded the second domestic violence matter." The defendant also argues that collateral estoppel applies because "the issues were identical in both cases." (Capitalization omitted.) Amici contend that res judicata and collateral estoppel have limited or no application in domestic violence cases under RSA chapter 173-B, and the trial court was within its authority when it relied upon the previously adjudicated conduct in ruling on the second petition.
To obtain relief under RSA chapter 173-B, the plaintiff must show
"abuse" by a preponderance of the evidence. L.C. v. W.C., 174 N.H. 355, 359 (2021). RSA 173-B:1, I, defines "[a]buse" as "the commission or attempted commission" by "a family or household member or by a current or former sexual or intimate partner" of one or more specified criminal acts "where such conduct is determined to constitute a credible present threat" to the plaintiff's safety. Among the specified acts are assault or reckless conduct, criminal threatening, and destruction of property. See RSA 173-B:1, I (a), (b), and (e). Thus, before issuing a domestic violence final order of protection under RSA chapter 173-B, a trial court must find by a preponderance of the evidence that
(1) the defendant committed or attempted to commit one or more of the enumerated acts and (2) the defendant's conduct constituted a credible present threat to the plaintiff's safety. See L.C., 174 N.H. at 359. In reaching its conclusion, the trial court "may consider evidence" of acts of abuse as defined in the statute, "regardless of their proximity in time to the filing of the petition,
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which, in combination with recent conduct, reflects an ongoing pattern of behavior which reasonably causes or has caused the petitioner to fear for his or her safety or well-being." RSA 173-B:1, I. As the defendant conceded at oral argument, if an act of abuse takes place after the adjudication forming the basis of the defense of res judicata or collateral estoppel, the court may rely on all previous alleged acts of abuse to determine whether there is a pattern of behavior causing the plaintiff to fear for his or her safety. See id. (allowing court to consider such other acts to determine existence of such a pattern irrespective of when they occurred).
While we agree that several of the alleged acts of abuse in the first petition are found in the second petition, the plaintiff also established that an act of abuse took place after the first petition was adjudicated. In her second petition, the plaintiff alleged that she had recently taken the video of the November 2023 incident to the police and she believed she had since seen the defendant driving by where she stays. During the ex parte hearing, the plaintiff told the court that she "fears for her safety because when she showed the video" to the police, the "police said that they intend to arrest" the defendant. She added that she "fears this will anger [him]" and, based on his threats in the past, that "he would shoot her." At the final hearing, the plaintiff testified that the defendant told her that he would kill her if she ever reported him to law enforcement. She also testified that after providing police with the 2023 video two weeks earlier, she believed she saw the defendant drive past her house "a couple times." On cross-examination, the plaintiff responded
"[y]es," when asked whether she was "speculating" when she stated she believed she had seen the defendant drive by her home, but lack of certainty in a witness's testimony and disparities between a witness's testimony on direct and cross-examination are factual matters for the trial court to resolve. See Beckles v. Madden, 160 N.H. 118, 129-31 (2010) (explaining that "indecisive phraseology" and "factual uncertainties underlying the experts' testimony did not render their opinions insufficient"); In the Matter of Kurowski & Kurowski,
161 N.H. 578, 585 (2011) ("Conflicts in the testimony, questions about the credibility of witnesses, and the weight assigned to testimony are matters for the trial court to resolve.").
The plaintiff made her report to the police after the denial of her first petition and after the defendant had threatened to kill her if she made such a report. Once the plaintiff made the report, the defendant's threat was no longer conditional. This change from a conditional threat to a present threat took place after the adjudication of the first petition and could not have been litigated in the earlier action. This allegation of abuse in the second petition, then, would not be barred by either res judicata or collateral estoppel. See Walker, 173 N.H. at 213; Cook, 149 N.H. at 778. We therefore need not reach amici's argument that RSA chapter 173-B prohibits or substantially limits the application of these doctrines in successive cases seeking an order of
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protection. It is undisputed on this appeal that if a petitioner establishes that an act of abuse occurred after the adjudication of an earlier petition, RSA 173- B:1, I, authorizes the trial court to consider all of a defendant's other acts of abuse irrespective of when they took place to determine whether a pattern of abuse exists. Consequently, the trial court did not commit error in its final order of protection by considering and relying upon the alleged acts of abuse litigated in connection with the first petition.
Affirmed.
MACDONALD, C.J., and DONOVAN, COUNTWAY, GOULD, and WILL, JJ., concurred.
Timothy A. Gudas, Clerk