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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Conway Family Division No. 2010-555

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 affirm. 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 further found: 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, 2

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

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