117 A.3d 1144
N.H.2015Background
- Susan Achille filed a domestic violence petition three days after an alleged December 4, 2012 incident in which George Achille brought a gun to her home and allegedly grabbed her hair, choked her, pushed her to the floor, and threatened to use the gun; George denied the allegations.
- A temporary protective order issued; criminal charges were later filed based on the same incident. The parties had an ongoing no-fault divorce petition pending.
- The domestic violence final hearing was repeatedly continued (at respondent’s request) pending resolution of criminal matters; the trial court sua sponte vacated a prior continuance and set a final hearing for March 6, 2014.
- On the day of hearings the respondent moved to recuse Judge Carbon from both the divorce and domestic violence matters because an accountant testifying in the divorce provided services to the judge; Judge Carbon recused from the divorce but denied recusal as to the domestic violence case.
- After a contested March 6 hearing the trial court credited the petitioner’s testimony, found statutory abuse and an ongoing credible threat, and entered a final domestic violence protective order. The respondent appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge must recuse from domestic violence hearing after recusing from related divorce because of judge’s connection to a witness | Judge: accountant had no role in domestic violence case; proceedings are separate so no appearance of impropriety | Respondent: once judge recused from part of the case, she should recuse from both; accountant’s connection created appearance of bias | Court: proceedings are separate; objective test shows no appearance of impropriety for DV matter; recusal denial affirmed |
| Whether trial court abused discretion by vacating prior continuance and accelerating final hearing before criminal case resolved | Judge and petitioner: timely resolution of DV claims is statutory priority; no constitutional right to stay civil proceedings pending criminal case | Respondent: acceleration forced waiver of Fifth Amendment rights; court should have applied multi-factor balancing or waited for criminal resolution | Court: no constitutional right to stay; broad trial-court scheduling discretion; prioritizing prompt DV relief was not unsustainably exercised |
| Whether evidence was sufficient to support final protective order under RSA chapter 173-B | Petitioner: testified credibly about December 4 assault, prior history of abuse, and ongoing threat | Respondent: incident was stale (14 months before final hearing) and petitioner’s post-incident conduct (dinner, mediation trip) undermines claim of ongoing credible threat | Court: credited petitioner’s testimony; distinguishing Tosta — petition filed 3 days after incident; history and severity supported finding of ongoing credible threat; order upheld |
| Admission of certain testimony on appeal | Petitioner sought affirmance; asked for fees | Respondent raised but failed to brief objection, so waived | Court: issue waived; appeal not frivolous, so no appellate fees awarded |
Key Cases Cited
- Miller v. Blackden, 154 N.H. 448 (2006) (objective test for appearance of judicial impropriety)
- Blaisdell v. City of Rochester, 135 N.H. 589 (1992) (recusal required where appearance of partiality permeated related proceedings)
- Tosta v. Bullis, 156 N.H. 763 (2008) (insufficient evidence of present credible threat where long delay and lack of intervening threats)
- Walker v. Walker, 158 N.H. 602 (2009) (standards for evaluating stale incidents and credible threat under RSA 173-B)
- In re Melissa M., 127 N.H. 710 (1986) (no constitutional right to stay civil proceedings pending related criminal case)
- Knight v. Maher, 161 N.H. 742 (2011) (RSA chapter 173-B prioritizes prompt relief for domestic violence victims)