Justia Family Law Opinion Summaries

Pro se Plaintiff Robert Suprenant appealed a superior court order that dismissed his claims against Defendant Deborah Mulcrone under the doctrine of absolute quasi-judicial immunity. Defendant was the guardian ad litem for Plaintiff's son in a contested case between Plaintiff and the son's mother. Defendant was appointed to investigate how Plaintiff and his son's mother should divide parenting time and residential responsibility for their son. Defendant stated in her report that although it was "commendable" that Plaintiff had no criminal charges since 1994, his failure to disclose his prior charges was "troubling." Plaintiff filed suit against Defendant alleging those statements in her report were negligently made and breached an implied contract with Plaintiff to observe "reasonable standards of care and fair dealing." Upon review, the Supreme Court concluded that Defendant was entitled to absolute immunity for her acts. Accordingly, the Court upheld the trial court's dismissal of Plaintiff's lawsuit.

Petitioners Todd and Trent Bemis appealed a probate court order that dismissed their petition for guardianship over the person and estate of their step-father Dr. Raymond B. More than seven months after Dr. B left an assisted-living facility in Florida, Petitioners filed their petition for guardianship when Dr. B engaged in behavior the Supreme Court "assume[d] was evidence of his legal incapacity at that time." The petition contained no allegations about the doctor’s behavior, and Petitioners had no contact with him after he left Florida. Dr. B objected to a request for a psychological evaluation, and moved to dismiss the petition, arguing that it was "per se defective" because the guardianship statute requires that all evidence of a proposed ward's inability to care for himself "must have occurred within 6 months prior to the filing of the petition and at least one incidence of such behavior must have occurred within 20 days of the filing of the petition." After a hearing, the trial court dismissed the petition and denied the petitioners' motion for a psychiatric evaluation. The petitioners appealed both decisions. Finding that the trial court could have reasonably concluded that the doctor’s interest in freedom from an unwanted psychological examination outweighed the petitioners' interests in procuring evidence of his alleged incapacity, the Supreme Court affirmed the probate court's decision.

Respondent Norris Viviers appealed an order of the family division which ruled his obligation to pay alimony to Petitioner Karen Schaulin-Viviers could not be modified because the parties agreed to a lump-sum payment. Finding that certain aspects of the parties' agreement and conduct created an ambiguity as to whether the alimony awarded was alimony in gross or periodic alimony, the Supreme Court construed the alimony as being periodic and not lump sum. Accordingly, the Court vacated the trial court's order and remanded the case for further proceedings.

Respondent, the father of "Haley K.," appealed a family division order that terminated his parental rights. He argued that the trial court erred in finding the State provided reasonable services for his reunification with the child. Finding that Respondent failed to make adequate provisions for his child's care and support during his incarceration ("respondent's physical unavailability did not absolve him of his parental obligation to provide for the care of his child"), the Supreme Court affirmed the trial court's decision terminating his parental rights.

This case was an interlocutory appeal of two orders of the Conway Family Division that granted Petitioner Tami Mallett's motions to amend and for attorney's fees. Petitioner and Respondent Michael Mallett were involved in a long-term relationship, but never married. During the nearly fourteen years they were together, they had two children and held themselves out as a married couple. They wore wedding rings, shared the same last name, owned property together, and worked jointly in business enterprises. In 2009, Tami filed a petition for divorce. In response, Michael filed a motion to dismiss, based upon the fact that he and Tami never married. The trial court granted Michael's motion in part, but ruled that it would nonetheless "address all issues of parenting and child support raised" in the petition for divorce. The court also ruled that it had "equitable authority to make certain adjustments of the rights and interests of the parties," and granted Tami leave to amend her petition, or to file parenting and equity petitions to more fully develop her theories related to, among other things, the division of the parties' personal and real property. Tami then filed a motion to amend, and later a motion for attorney's fees. In two separate orders, the court granted both motions. Michael moved for reconsideration of the orders, or in the alternative, for an interlocutory transfer. The trial court granted the request for an interlocutory transfer, and transferred six questions to the Supreme Court. "While unmarried parties are expressly within the family division’s jurisdiction for purposes of child-related matters, [the] statutory scheme plainly restricts all divorce remedies and property distribution to married couples." The Supreme Court reversed both of the trial court's orders in favor of Tami and remanded the case back to the trial court for further proceedings.

Respondent Thomas Henry appealed the final decree in his divorce from Petitioner Marty Henry. He argued that the Derry Family Division erred when it granted Petitioner a fault-based divorce. He also challenged the trial court's division of the parties' property and its decision to award the petitioner alimony. Upon review, the Supreme Court found that the evidence presented at trial supported the trial court's decision to grant a fault-based divorce. Furthermore, the Court concluded trial court did not abuse its discretion in its award of alimony.

Petitioner Nilesh D. appealed a probate court order that denied his motion to terminate the guardianship over his minor daughter Reena, which had been previously awarded to his step-mother, Respondent Hasu D. Petitioner was granted guardianship over Reena who was then twenty-months old. Petitioner and his wife sought the guardianship because they were going overseas to start a business, and to visit the wife's family. The court granted a temporary guardianship, and following the hearing, the court appointend Respondent and her husband, Petitioner's father, to be Reena's guardians. In 2003, Petitioner's father died, and Respondent was appointed Reena's sole guardian. In 2003, Petitioner filed a motion to terminate the guardianship, asserting it was no longer necessary because its purpose was fulfilled. A final hearing on the motion to terminate would be held two months after Petitioner submitted an assessment of his alcohol use. In the meantime, the guardianship continued. In 2004, Respondent moved to dismiss the guardianship because Petitioner failed to submit an alcohol use assessment. The trial court denied the motion to terminate without prejudice to its future renewal. Petitioner did not renew his motion until 2007. The trial court held a hearing in 2009, and on the first day of the hearing, Petitioner submitted the assessment. Ultimately the court decided that Petitioner and his wife failed to show that terminating the guardianship would not "adversely affect [their daughter's] psychological well-being." Petitioner appealed the court's decision. Concluding that a "clear and convincing" standard of proof applied to a guardian's burden of proof in a proceeding to terminate a guardianship established by consent, the Supreme Court found that the trial court applied the wrong burden of proof in Petitioner's case. Accordingly, the Court vacated the trial court's decision and remanded the case for further consideration under the proper burden of proof.

Defendant Christopher D'Errico appealed the recommendation of the Marital Master that granted a protection order to Plaintiff Linda Thompson. Plaintiff filed a domestic violence petition in April, 2011. Following an evidentiary hearing, the trial court found that almost every day Defendant sent Plaintiff text messages using "extraordinarily foul language." The court further found that Defendant told Plaintiff not to come near his house because he had a loaded shot gun, and that in the past Defendant was stopped by a family friend from putting his hands around Plaintiff's neck. The court concluded that Defendant's conduct constituted a present threat to Plaintiff's safety and issued a final order of protection. On appeal, Defendant argued that: (1) his non-threatening foul language is protected by the First Amendment; (2) there is no evidence to support Plaintiff's allegations against him; (3) the text messages might have been sent by a third party having access to his phone; (4) the trial court erred by admitting evidence of certain text messages; and (5) the evidence did not support the finding of a credible present threat to Plaintiff's safety. Finding no merit to any of the issues Defendant raised on appeal, the Supreme Court affirmed the Master's final order.

Appellant Anthony Hayes appealed a superior court order that denied his petition to enjoin a sheriff's sale and found a prejudgment attachment by Appellee Southern New Hampshire Medical Center (SNHMC or Hospital) valid and executable. In 2006, Appellant's wife Karen was admitted to the SNMHC for medical treatment stemming from alcoholism. SNHMC filed suit in superior court against Appellant for his wife's unpaid medical bills. At the same time, the hospital petitioned to attach a portion of the couple's real estate owned as a joint tenancy with the right of survivorship. During the pendancy of the attachment proceedings, the Hayses divorced. Under the terms of their separation agreement, each was responsible for their own medical expenses not covered by insurance. Mrs. Hayes quitclaimed her interest in the real estate. Shortly thereafter, she died. SNHMC obtained a limited probate administration in order to proceed with the sheriff's sale of the properties. The trial court found that Mrs. Hayes' interests in the subject properties remained valid and that SNHMC was entitled to execute its judgment against them. On appeal, Appellant contended that, because Mrs. Hayes quitclaimed her interest in the property prior to entry of final judgment against her, the trial court erred as a matter of law when it failed to find that her death terminated SNHMC’s prejudgment attachment. Upon review, the Supreme Court concluded that SNHMC’s prejudgment attachment was obtained and recorded during Mrs. Hayes' lifetime and while she held the property jointly with her husband. As such the hospital's judgment remained valid. The Court affirmed the trial court's judgment in favor of the hospital.

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.