Sandra L. Davey & a.
Michael Scott Leonard, Trustee of the Smythe Camp Trust,
Petitioner Sandra L. Davey appeals the order of the Superior Court (Brown, J.) denying her petition for contempt against the respondent, the predecessor trustee of the Smythe Camp Trust. (The current trustee was substituted while this case was on appeal.) She argues that: (1) the court lacked an adequate basis on which to modify its prior order; (2) relocation of the subject dock creates an "illegal trespass" and violates her constitutional property rights; and (3) she was deprived of a meaningful opportunity to submit evidence in support of her petition. We affirm.
The petitioner first argues that the trial court erred in its contempt order because the court "lacked an adequate basis to sua sponte modify its prior order by relocating the shared dock." The trial court's discretion in civil contempt proceedings extends to the fashioning of a remedy that is remedial, coercive, and for the benefit of the complaining party. See In the Matter of Kosek & Kosek, 151 N.H. 722, 727-28 (2005). We will not disturb the trial court's contempt order absent an unsustainable exercise of discretion. In the Matter of Conner & Conner, 156 N.H. 250, 253 (2007).
The record shows that the petitioner initiated an action to determine her rights to use a dock on the trust property. She alleged that the dock was originally located "roughly straddling the common lot boundary" of the parties' adjacent lots, and that the respondent had interfered with her use of the dock by, among other things, "install[ing] the dock completely in front of the Smythe family camp and wholly on the Smythe lot." The petitioner sought an order determining her right to use the dock and an order "that the dock be returned to its original location and configuration to afford the parties equal and unfettered access to the dock." After a bench trial, the trial court issued an order (adjudication order) ruling that the petitioner "possesses an easement by implication, entitling her family to full use of and access to the dock." The court further ruled that: "Pursuant to this easement, the Smythe family shall not interfere in any way with the Daveys' use of and access to the dock."
In its adjudication order, the trial court noted that:
The original dock has been replaced at least three times, generally in the same location, and has always remained within a few feet of its original location. Sometime between 1951 and 1957, a concrete pad was installed on the beach to serve as a permanent foundation for the dock. The pad was installed either directly on or immediately abutting what eventually became the property line between the Davey and Smythe camps.
The following summer, the petitioner filed the instant petition, alleging that the respondent was in contempt of the adjudication order by, among other things, placing the dock in a location "straddling both properties." In his answer to the petition, the respondent asserted that "[a]n exact location for the dock in question was never proven nor determined by the Court" and that the Smythe family installed the dock "in the location that was urged by the [petitioner] at trial, i.e., '[s]traddling the common lot boundary line.'" After a hearing, the trial court ruled that the petitioner's allegations did not support a contempt finding. In its order, the court also ruled as follows:
To ensure that there will no longer be a question as to where the seasonal dock should be placed each spring, the Court orders the parties to place the dock straddling the property line between the parties.
The petitioner acknowledges that "[a]s a general proposition, courts have power to set aside, vacate, modify, or amend their judgments for good cause shown." Coburn v. First Equity Associates, 116 N.H. 522, 523 (1976) (quotation omitted). The trial court made no specific finding in its adjudication order as to precisely where the dock had been located or should be located in the future. After considering the parties' respective positions at the contempt hearing, the trial court modified its prior order by specifying the location where the dock should be located "[t]o ensure that there will no longer be a question as to where the seasonal dock should be placed each spring." Based upon this record, we conclude that the trial court had good cause to amend its adjudication order as a remedy for the benefit of both parties. See Kosek, 151 N.H. 727-28.
Citing Blagbrough v. Town of Wilton, the petitioner argues that by amending its adjudication order "sua sponte, " the trial court failed to provide her with adequate notice and an opportunity to be heard. In Blagbrough, we held that "before a trial court may reverse a pretrial ruling that disposes of an issue for trial, it must provide the parties with notice adequate to give them an opportunity to present evidence relating to the newly revived issue." Blagbrough v. Town of Wilton, 145 N.H. 118, 125 (2000) (internal quotation omitted). Blagbrough is distinguishable, however, because in this case, the trial court's adjudication order contained no finding as to the specific location of the dock historically or where it should be located in the future. Moreover, in her contempt petition, the petitioner specifically raised the issue of where the dock should be located by alleging that the respondent violated the adjudication order by placing the dock "straddling both properties." Furthermore, at the start of the hearing, the petitioner confirmed that the respondent's placement of the dock was one of the grounds upon which she was seeking relief. The court asked the petitioner to explain her objection to "having the dock straddle [the property line] . . . as a permanent location." The petitioner explained that it would "encroach[ ] onto [her] property." We conclude that the trial court provided the petitioner with adequate notice and an opportunity to be heard prior to ruling on this issue.
The petitioner next argues that the trial court's "improper relocation" of the dock violates her "constitutional property rights" by creating an "illegal trespass" on her property. "Conduct which would otherwise constitute a trespass is not a trespass if it is privileged." Case v. St. Mary's Bank, 164 N.H. 649, 658 (2013) (quotation omitted). The petitioner has never challenged the respondent's right to shared use of the dock. Moreover, by ordering the parties to place the dock "straddling the property line" between the parties' properties, the trial court granted the petitioner the precise relief she requested in her original declaratory judgment action. Under these circumstances, we conclude that her claims of illegal trespass and violation of her constitutional property rights are without merit and warrant no further discussion.
Finally, the petitioner argues that the trial court violated her due process rights by failing to provide her a meaningful opportunity to submit evidence and be heard in support of her contempt petition. The fundamental requirement of due process is the right to be heard at a meaningful time and in a meaningful manner. In the Matter of Morrill and Morrill, 147 N.H. 116, 119 (2001). The right of due process "is flexible and calls for such procedural protections as the particular situation demands." Id. (bracket and quotation omitted). Accordingly, the specific components of the hearing must be tailored to suit the circumstances of the case. Id.
The petitioner alleged that the respondent was in contempt of the adjudication order by relocating the boat lift, placing Adirondack chairs on the dock, and placing the dock "straddling both properties." At the hearing, the petitioner explained that the respondent had moved the boat lift "probably four feet" from where the court observed it during its view, which meant that the boat's motor was "hanging beyond the dock area, " and interfering with her family's ability to jump off the dock. She also explained that the respondent's family members were sitting in Adirondack chairs on the dock and refusing to move, which interfered with the ability of the petitioner and the members of her family to use the dock. The trial court ruled that the petitioner's allegations "do not support a finding of contempt." Based upon this record, we cannot conclude that the trial court failed to provide the petitioner a meaningful opportunity to submit evidence and be heard in support of her petition. See Morrill, 147 N.H. at 119.
The issues raised in the petitioner's notice of appeal but not addressed in her brief are deemed waived. See Brunelle v. Bank of ...