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Defendant Patrick McArdle appealed a family court order that granted a final domestic violence protective order to Plaintiff Lisa McArdle. The day before the hearing on the domestic violence petition, Plaintiff moved to amend the petition with allegations of three prior incidents: (1) Defendant had admitted to "flip[ing] out in a rage type thing" at work, pushing over a three-foot staging and portable bathrooms, and smashing holes in
sheetrock; (2) in the summer of 2009, Defendant had thrown a large rock at the back of their son's car, damaging the car; and (3) at some point in their marriage, during an argument between the parties, Defendant had thrust his hand through a window, breaking his finger. The motion to amend the petition was not accompanied by an affidavit attesting to the facts under oath. Defendant objected to Plaintiff's motion to amend the petition on the basis that she had not attested to the factual allegations. The trial court addressed Defendant's objection by having Plaintiff attest to the facts alleged at the commencement of the hearing. On appeal, Defendant argued that the trial court erred by admitting evidence of which he did not have proper notice, basing its final order of protection upon such evidence, and considering evidence of incidents that were too remote in time. Upon review of the trial court record, the Supreme Court affirmed the trial court's decision, finding the evidence presented supported the court's decision to issue the protective order.Receive FREE Daily Opinion Summaries by Email
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THE SUPREME COURT OF NEW HAMPSHIRE
Conway Family Division
IN THE MATTER OF LISA MCARDLE AND PATRICK MCARDLE
Submitted: June 16, 2011
Opinion Issued: September 22, 2011
Lisa McArdle, by brief, pro se.
The Law Offices of Kurt D. DeVylder, PLLC, of Wolfeboro (Kurt DeVylder
on the brief), for the defendant.
CONBOY, J. The defendant, Patrick McArdle, appeals an order of the
Conway Family Division (Albee, J.) granting a final domestic violence protective
order to the plaintiff, Lisa McArdle. See RSA 173-B:5, I(a) (Supp. 2010). We
The trial court could have found the following facts. As of June 8, 2010,
the parties had been married for twenty-three years, had four children, and
were living together in Madison. On that day, the plaintiff was in the kitchen of
the parties’ home with their children and a friend. The defendant entered the
kitchen, yelled at the plaintiff, and threw some papers at her. The papers
consisted of notes and an email that the plaintiff had written about the parties’
relationship. He told her that the notes had upset him. She picked up the
papers and put them in a bag.
Later that evening, the plaintiff was in the bedroom of the parties’ elevenyear-old daughter, saying good night to her, when the defendant entered the
room carrying an unlit propane torch. He demanded that she give the papers
back to him. She refused. They continued to argue as the defendant followed
the plaintiff from room to room, carrying the propane torch. The plaintiff later
testified that the defendant was distraught and angry and that his anger
escalated throughout the incident. The plaintiff called her counselor, who
suggested burning the papers in the wood stove in the home. The defendant
agreed, the plaintiff gave him the papers, and he burned them in the stove.
After the papers were burned, the defendant did not say anything and
locked himself in a bathroom. The plaintiff then called the Madison police, who
responded. The next day, the plaintiff filed a domestic violence petition against
the defendant in which she described the propane torch incident.
The day before the hearing on the domestic violence petition, the plaintiff
moved to amend the petition with allegations of three prior incidents: (1) the
defendant had admitted to “flip[ing] out in a rage type thing” at work, pushing
over a three-foot staging and portable bathrooms, and smashing holes in
sheetrock; (2) in the summer of 2009, the defendant had thrown a large rock at
the back of their son’s car, damaging the car; and (3) at some point in their
marriage, during an argument between the parties, the defendant had thrust
his hand through a window, breaking his finger. The motion to amend the
petition was not accompanied by an affidavit attesting to the facts under oath.
The defendant objected to the plaintiff’s motion to amend the petition on
the basis that she had not attested to the factual allegations. See Fam. Div. R.
1.26 (“The court will not hear any motion based upon facts unless the facts are
verified by affidavit, or are already contained in the court record.”). The trial
court addressed the defendant’s objection by having the plaintiff attest to the
facts alleged at the commencement of the hearing.
Following the hearing, the trial court granted the plaintiff’s petition,
concluding that the defendant had committed criminal threatening, see RSA
631:4, I(a) (2007 & Supp. 2010), and presented a credible threat to the
plaintiff’s safety. The trial court found that the defendant “purposely placed
her in fear of imminent physical contact through his physical conduct by
repeatedly demanding she turn over papers while holding a propane torch and
following the plaintiff from room to room inside the home.” The trial court
The defendant has a history of angry, destructive behavior such as
throwing a large stone through the rear window of his son’s car,
pushing over 3-f[oo]t high staging at work, and most recently
during the incident of 6/8/2010 which lasted more than 3 hours,
the defendant’s anger escalated more and more as time went on
causing the plaintiff to be frightened for herself and her children.
This fear is validated by the fact that the defendant entered the
eleven-year-old child’s bedroom . . . with the propane torch held up
in his hand, angry and very distraught demanding the papers.
On appeal, the defendant argues that the trial court erred by admitting
evidence of which he did not have proper notice, basing its final order of
protection upon such evidence, and considering evidence of incidents that were
too remote in time.
Resolution of this case requires us to interpret RSA chapter 173-B,
Protection of Persons from Domestic Violence. We review the trial court’s
interpretation of a statute de novo. Kenison v. Dubois, 152 N.H. 448, 451
(2005). We are the final arbiter of the intent of the legislature as expressed in
the words of the statute considered as a whole. Id. We first examine the
language of the statute, and, where possible, we ascribe the plain and ordinary
meanings to the words used. Id. When the language of a statute is clear on its
face, its meaning is not subject to modification. Dalton Hydro v. Town of
Dalton, 153 N.H. 75, 78 (2005). We will neither consider what the legislature
might have said nor add words that it did not see fit to include. Id.
We review challenges to a trial court’s evidentiary rulings under our
unsustainable exercise of discretion standard and reverse only if the rulings
are clearly untenable or unreasonable to the prejudice of a party’s case. State
v. Forbes, 157 N.H. 570, 572 (2008).
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.” Walker
v. Walker, 158 N.H. 602, 605 (2009) (quotation, citation, and ellipsis omitted).
Pursuant to RSA 173-B:3, I (Supp. 2010), “[a]ny person may seek relief . . . by
filing a petition . . . alleging abuse by the defendant.” “Upon a showing of
abuse of the plaintiff by a preponderance of the evidence, the court shall grant
such relief as is necessary to bring about a cessation of abuse.” RSA 173–B:5,
I (Supp. 2010). “Abuse” is defined as having two elements: (1) commission or
attempted commission of one or more of several criminal acts, including
criminal threatening as defined in RSA 631:4; and (2) a determination that
“such conduct constitutes a credible threat to the plaintiff’s safety.” RSA 173–
B:1, I (Supp. 2010).
We first address the defendant’s contention that it was error for the trial
court to permit the plaintiff to attest to the facts alleged in her motion to amend
at the hearing, and then to consider those facts in ruling on the petition.
Under Family Division Rule 1.2, the court may waive the application of any
rule, except where prohibited by law, as good cause and justice require. The
defendant argues that the trial court was prohibited by law from waiving the
In support of his argument, the defendant selectively quotes RSA 173B:3, IV as follows: “All such petitions shall contain the following words: I
swear that the foregoing information is true and correct to the best of my
knowledge.” The entire section, however, provides as follows:
The clerks of the district and superior courts shall supply forms for
petitions and for relief under this chapter designed to facilitate pro
se proceedings. All such petitions shall contain the following
words: I swear that the foregoing information is true and correct to
the best of my knowledge. I understand that making a false
statement on this petition will subject me to criminal penalties.
RSA 173-B:3, IV. We cannot conclude, based on this statutory language, that
it was the intent of the legislature to prohibit the court from waiving the
attestation requirement for the petition form under circumstances where the
plaintiff later attests to the facts at the hearing on the petition.
The defendant also argues that, because the allegations contained in the
motion to amend were unverified, he did not have proper notice of them.
“Under the plain terms of the statute, facts alleged against the defendant must
be supplied in advance of the hearing on the petition. Should the need arise to
supplement or amend the petition to modify the facts alleged, this, too, must be
done prior to the hearing so that the defendant has an opportunity to respond.”
In the Matter of Aldrich & Gauthier, 156 N.H. 33, 34-35 (2007).
The defendant relies on Ossipee Auto Parts v. Ossipee Planning Board,
134 N.H. 401 (1991), in which we held that the superior court could not, under
Superior Court Rule 57, consider facts not verified by an affidavit when ruling
on a motion. However, Ossipee is distinguishable from this case for two
reasons. First, here, the defendant received a copy of the motion to amend the
day before the hearing and, therefore, received notice of the subject allegations.
Second, the plaintiff attested to the factual allegations in the motion to amend
at the start of the hearing. Moreover, the Family Division is empowered under
Family Division Rule 1.2 to waive its rules when good cause and the interests
of justice may require. Under these circumstances, we do not believe that the
trial court’s ruling was clearly untenable or unreasonable to the prejudice of
the defendant’s case. Thus, we hold that the trial court did not unsustainably
exercise its discretion in admitting and considering the facts alleged in the
plaintiff’s motion to amend.
Next, the defendant argues that the trial court erred in considering the
events detailed in the motion to amend because they are stale. See Walker,
158 N.H. at 608 (“[i]ncidents which are too distant in time and non-specific
cannot support a finding of abuse under RSA chapter 173-B” (quotations and
citation omitted)); Fillmore v. Fillmore, 147 N.H. 283, 286 (2001) (holding that
two incidents of physical abuse occurring eight and eleven years prior to the
petition and a months-old threat to make the plaintiff’s life “a living hell” were
insufficient to show current abuse). The defendant characterizes the trial
court’s decision that the defendant posed a credible threat to the plaintiff’s
safety as based “largely” and relying “heavily” on the allegations of prior
incidents. We disagree. The following facts, cited by the trial court, support
the finding that the defendant’s conduct on June 8, 2010, constituted a
credible threat to the plaintiff’s safety: (1) the confrontation lasted for more
than three hours; (2) the defendant’s anger escalated during the course of the
confrontation; (3) the defendant entered his eleven-year-old child’s bedroom
demanding the papers with the propane torch raised; and (4) the defendant
was “angry and very distraught.” Thus, the court’s ruling was based on the
June 8, 2010 incident, which occurred the day before the plaintiff filed the
domestic violence petition.
Further, the prior incidents were relevant to the trial court’s finding that
the defendant had committed criminal threatening and posed a credible threat
to the plaintiff’s safety. “A person is guilty of criminal threatening when . . .
[b]y physical conduct, the person purposely places or attempts to place another
in fear of imminent bodily injury or physical contact.” RSA 631:4, I(a). The
court found that the defendant’s “history of angry, destructive behavior such as
throwing a large stone through the rear window of his son’s car [and] pushing
over 3-f[oo]t high staging at work” supported its conclusion that the plaintiff
was in fear of physical contact from the defendant when he followed her from
room to room, repeatedly demanding the papers, while holding a propane
The defendant also argues that the trial court erred in finding him to be a
credible threat to the plaintiff because no evidence was introduced to show that
he had been violent toward the plaintiff. However, the statutory definition of
“abuse” does not require the defendant to have committed a violent act. See
RSA 173-B:1, I. It requires the defendant to have committed one of the
enumerated offenses, including criminal threatening, and to pose a credible
threat to the plaintiff’s safety. Id. We disagree with the defendant’s contention
that “[t]he incident of June 8, 2010, though admittedly involving an unlit firestarting device, should not be taken for more than what it was: a request to
dispose of upsetting notes which the [plaintiff] had written about the
[defendant] and the parties’ relationship.” The trial court found, and the
defendant does not dispute on appeal, that he committed the offense of
criminal threatening, see RSA 631:4, and, as outlined above, the evidence
supports the trial court’s finding that the defendant’s conduct constituted a
credible threat to the plaintiff’s safety.
DALIANIS, C.J., and DUGGAN, HICKS and LYNN, JJ., concurred.