9th Circuit Court - Manchester Family Division
Argued: November 12, 2014
Sheehan, Phinney, Bass Green, P.A., of Manchester (John-Mark Turner and James F. Ogorchock on the brief, and Mr. Ogorchock orally), for the petitioner.
Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F. Connor on the brief and orally), for the respondent.
The respondent, George Achille, Jr., appeals several orders of the Circuit Court (Carbon, J.) arising from a domestic violence petition filed by the petitioner, Susan Achille, in which the trial court: (1) vacated its earlier order which had continued the final hearing in the domestic violence proceeding; (2) denied the respondent's motion to recuse Judge Carbon from presiding over the domestic violence proceeding, despite having granted the respondent's motion to recuse in the parties' divorce proceeding; and (3) entered a final domestic violence protective order. See RSA ch. 173-B (2014 & Supp. 2014). We affirm.
The following facts are derived from the trial court's orders or are otherwise drawn from the record. In June 2012, after the parties had been married for more than 30 years, the petitioner filed for a no-fault divorce. At the time, the parties lived in separate residences at the same address.
On the night of December 4, 2012, the respondent went to the petitioner's residence with a box that contained a gun and told her that he was going to use the gun. An argument ensued. The respondent then yelled at the petitioner, pursued her through the home, grabbed her by the hair, threw her against a counter, choked her, slammed a door on her, and pushed her to the floor. According to the petitioner, the respondent had also "hit [her] plenty of times" in the past, including in June 2012 when the respondent had "hit [her] across the face and dislocated [her] jaw." The respondent denied that the abuse occurred, and testified that, on December 4, the petitioner hit him with an umbrella and fell after tripping over a pair of boots.
The next day, the petitioner reported the incident to the police. At that time, she did not tell the police about the gun, press criminal charges against the respondent, or seek a protective order. Later that day, the parties had dinner together at a restaurant. On December 6, they drove together to Manchester for mediation regarding their pending divorce.
On December 7, the petitioner filed a domestic violence petition in which she described the incident that occurred in her home three days earlier. The court issued a temporary domestic violence protective order and scheduled a final hearing for later that month. On December 27, the petitioner wrote to the police, seeking to press charges against the respondent arising out of the December 4 incident. Criminal charges were subsequently filed against the respondent.
During the next year, at the respondent's request, the trial court repeatedly continued the final hearing in the domestic violence case. In December 2013, the trial court ordered that the hearing be rescheduled for "after October 1, 2014" when "the [respondent's] criminal matters have been resolved." Nonetheless, on January 24, 2014, the trial court, sua sponte, vacated its earlier scheduling order and ordered that the matter be set for a final hearing. The court observed that, although the "statutory framework envisions a final hearing within 30 days of the filing of the petition, " the final hearing had "been continued multiple times" and 14 months had passed since the date of the petition. The final domestic violence hearing was scheduled for March 6, 2014, the same day as the hearing on the merits in the parties' divorce.
On March 6, the day of the scheduled hearings, the respondent moved to recuse Judge Carbon from both the domestic violence and the divorce proceedings. He argued that recusal was required from both proceedings because the accountant who was scheduled to testify on the respondent's behalf during the divorce proceeding also provided financial services to Judge Carbon. The respondent asserted that, although the accountant "w[ould] not testify in the domestic violence proceeding, " an "integral connection" existed between the domestic violence and the divorce proceedings such that Judge Carbon was required to recuse herself from both proceedings.
Following oral argument, Judge Carbon recused herself from the divorce proceeding, observing that the "Court could be accused of either giving undue preference to, or undervaluing the quality of, [the accountant's] testimony" during the divorce hearing. However, she denied the motion seeking her recusal from the domestic violence proceeding, explaining that there was "no conflict of interest, nor any appearance of possible bias resulting from a shared professional when that person has no role whatsoever" in the domestic violence case. Accordingly, Judge Carbon presided over the March 6 domestic violence hearing, and the parties' divorce proceeding was assigned to another judicial officer.
After the domestic violence hearing, the respondent filed a motion to dismiss the domestic violence petition, arguing that "the petition fail[ed] to allege conduct that could reasonably be construed to be abuse under RSA 173-B." The trial court denied the motion and granted a final domestic violence protective order. The trial court credited the petitioner's testimony and concluded "that Respondent has committed acts of abuse including simple assault (grabbing [petitioner's] hair, choking her, pushing her to the ground), in addition to threatening her with a firearm and restraining her movement. These are acts of abuse pursuant to RSA 173-B." The court also found that, given the "long history of ...