2010 Summer, Pg. 78. LEX LOCI.

Author:By Attorney David Ruoff

New Hampshire Bar Journal


2010 Summer, Pg. 78.


New Hampshire Bar JournalVolume 51, No. 1Summer 2010LEX LOCIBy Attorney David RuoffThis column was submitted in timely fashion last February but production of the issue delayed its publication. Since the retirement of Lex Loci's long-time contributor, Charles A. DeGrandpre, the Bar Journal Editorial Advisory Board has been soliciting suggestions for authors and for possible changes in format. This is attorney Ruoff s second Lex Loci column. His column covered the cases decided last fall.

Christopher Lally v. Lauren Flieder, decided October 30, 2009, involved a landlord-tenant dispute. The landlord (Flieder) rented an apartment to Mr. Lally (Lally) for a couple of years. The parties eventually agreed that the lease would terminate at the end of August, 2008. Lally apparently decided to stay. On September 2, 2008, Flieder commenced an eviction action and terminated Lally's (illegally connected) cable service. In response, Lally filed a petition under RSA 540-A and claimed that Flieder, by disconnecting his cable service, was carrying out a self-help eviction.

The Supreme Court agreed. RSA 540-A lists several utility services that, in the Court's words, "pertain to the habitability of a dwelling and a person's well-being." That list includes - but is not limited to - utilities such as water, heat, light, electricity, gas, and telephone services. A cable television service is not a utility service that is listed. Luckily for Lally, the Court reasoned that "many people access essential telephone service, the Internet, news information and entertainment" through cable services. The fact that Lally had illegally connected the cable television services was never discussed by the Court. Also absent from the Court's discussion is the fact that cable television services existed in 1979 when RSA 540-A was enacted, and the Legislature did not put it on the list. What was considered a luxury in 1979 - at least for many of us that grew up in rural New Hampshire - is now a protected utility service (even when obtained illegally).

In re Adam Muchmore and Amy Jaycox, decided December 4, 2009, involves the impermissible modification of a parenting plan. The parties filed a stipulated parenting plan when their child was born in 2006. The plan stated that it could be modified when the child was three to four years old. When their child was two years old, the father moved to amend the parenting plan under RSA 46l-A:11. The father alleged multiple grounds for his request; key among them was that the mother had intentionally interfered with his parental responsibilities and that the modification "would be in the child's best interest." RSA 461-A:11, I(b). He also argued that the child's current environment as required by the parenting plan was harmful to her, RSA 461-A:11, I (c), and that the mother's conduct made the existing plan "unworkable," RSA 461-A:11, I(d).

However, at the evidentiary hearing on his request he failed to meet his burden of proof under RSA 461-A:11, I(b) or (c) - and he agreed that he failed to meet his burden on his RSA 461-A:11,I(d) claim. However, despite finding that the father had failed to sustain his burden of proof, the trial court found that modification was warranted and in the best interests of the child.

On appeal, the mother argued that the trial court lacked the authority to modify the parenting plan. She argued, logically, that the court's authority to amend an existing order was limited to those circumstances in which the petitioner carries his/her burden of proof in proving the special circumstances stated in RSA 461-A:11, I. By logical extension, the "flip side" of her argument was that the court could not amend an existing parenting plan solely because it concluded it was in the best interest of the child to do so.

She was right. The Court explained that it was within the province of the legislature to limit the court's ability to modify parenting plans - which themselves are creatures of statute - even if it is in the best interests of the child to do so. The Court called this problem "regrettable" and left it to the legislature to amend that statute as it disagreed with the Court's rationale.

Amy Barnet v. Warden, N.H. State Prison for Women, decided December 4, 2009, involves a petition for writ of habeas corpus. Such "habes" as these are rarely reported decisions and are worth discussing. This "habe" stems from the procedure that was used by the Adult Parole Board (the Board) to revoke her parole. Barnet was on parole from the State Prison when she was investigated for, and ultimately charged with, shoplifting. She turned herself in to her parole officer after telling the parole officer that she "messed up" and "shoplifted". She was arrested for violating several conditions of her parole. Under N.H. law, the Board was required to hold a hearing on her parole violation within 45 days of her arrest.

Her first hearing was scheduled within the 45-day time period. However, she filed a Motion to Remove Parole Violation Warrant. The Board continued the hearing sua sponte and rescheduled the hearing beyond the 45-day mark. The Board reasoned that by filing her pleading, she had waived the 45-day requirement. The Board failed to notify Barnet's attorney of the hearing, who, in turn, did not notify Barnet. However, because she was in custody, the Board compelled her to appear by videoconference from the jail, without her attorney present. The Board continued the hearing on its own motion again.

Prior to the second hearing, she filed a petition for writ of habeas corpus in the superior court. She argued that the Board had violated her due process rights by failing to give her proper notice of the violations, and by failing to hold her hearing within the required 45 days. On appeal, the Court pointed that parolees have conditional liberty interests and in order to establish a due process violation in a "habe," a petitioner must demonstrate actual prejudice. In this case, Barnet's claim that her ongoing incarceration was prejudicial did not persuade the Court. The Court could not see a causal connection between the lack of proper notice, delay in her hearing before the Board, and her continued incarceration. The suppressed premise here is that even if she had valid notice and had the hearing within 45 days, she would have still been incarcerated.

Brentwood Volunteer Fireman's...

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