Articles Posted in New Hampshire Supreme Court

by
In consolidated appeals, petitioner Vivian Silva appealed two circuit court orders in her divorce from respondent Robert Silva. She argued the trial court erred when it: (1) deviated from the child support guidelines; (2) inequitably divided the marital estate; and (3) did not find the respondent in contempt for withdrawing funds from an education savings account, or “529 account,” established for their daughter’s benefit, during the pendency of the divorce, and did not consider the 529 account in its division of the marital estate. After review, the New Hampshire Supreme Court agreed with petitioner with respect to child support, and found the trial court record unclear with respect to the 529 account. The Court vacated the distribution of property decision altogether and remanded this case for the trial court to clarify its disposition of the 529 account, and if necessary, the adjust the division of marital property. The Court affirmed the trial court in all other respects. View "In the Matter of Vivian Silva and Robert Silva" on Justia Law

by
Respondent Lauren DiGiulio appealed a circuit court order granting petitioner Gregory Neal's petition to rescind a voluntary acknowledgment of paternity. Respondent also appealed the trial court’s denial of a hearing on her request for attorney’s fees. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that petitioner was the child’s “natural father.” The parties lived together for approximately three years, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child. In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner was the second child’s biological father, but that he was not the biological father of the first. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child’s biological father was released from prison. At that point, respondent severed petitioner’s contact with the child in favor of the child’s biological father. Thereafter, petitioner made a number of requests to see the child, all of which were denied. However, at no time did petitioner file a parenting petition with respect to the child. In 2015, petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties’ children. In November, in that same proceeding, petitioner filed a “Motion to Rescind Paternity” of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court “[a]cknowledge that [he] is not the biological father of” the child and “order and declare that [he] is not the legal father of” the child. Following a hearing, the trial court granted the motion, rescinding the petitioner’s acknowledgment of paternity of the first child. The New Hampshire Supreme Court concluded that, under the specific circumstances of this case, the record established an objective basis sufficient to sustain the trial court’s ruling that, despite petitioner’s delay in filing the motion, it was fair to allow petitioner’s motion for rescission of paternity. View "In the Matter of Gregory Neal and Lauren DiGiulio" on Justia Law

by
The New Hampshire Division for Children, Youth and Families (DCYF) sought to challenge a circuit court order closing a child protection case. In November 2014, DCYF filed a petition for neglect under RSA chapter 169-C against the respondent-mother alleging that she neglected her child by engaging in drug use and exposing the child to domestic violence in the home. The child was found to be neglected; in January 2015, the trial court held a dispositional hearing and issued orders requiring, among other things, that the mother: attend and meaningfully participate in substance abuse and/or mental health counseling; attend and meaningfully participate in visits with the child; follow the terms of her release from incarceration and remain free from incarceration; and obtain and maintain a home free from untreated substance abuse, mental health issues, and/or domestic violence. At a three-month review hearing in April, the mother was found to be in “partial compliance.” At a six-month review hearing in August, the mother failed to appear and was found to be “not in compliance.” At a permanency hearing in December, the mother was again found to be “not in compliance,” at which time DCYF recommended and the court ordered a change in the permanency plan from reunification to adoption and that DCYF file a termination of parental rights petition under RSA chapter 170-C to enable adoption to occur. In October 2016, a hearing was held on DCYF’s petition for termination of parental rights, but the court denied it, finding DCYF did not present evidence of the mother’s failure to correct the conditions that led to the finding of neglect despite DCYF’s provision of reasonable efforts. In February, however, the court, sua sponte, issued an order concluding that “the New Hampshire legislature has determined that guardianship should be awarded for a child, pursuant to RSA 170-C:11, IV, when a termination proceeding fails, but the Court nonetheless believes that the child’s parental care requires substitution or supplementation.” The court found the language of the statute mandatory, and that “[n]o discretion is provided in this context, assuming that the Court finds a need for substitution or supplementation.” The New Hampshire Supreme Court held the circuit court erred as a matter of law in ruling that RSA 170-C:11, IV mandated closure of the child’s RSA chapter 169-C child protection case and guardianship with DHHS as the child’s permanency plan. Accordingly, the case was remanded for further proceedings. View "Petition of New Hampshire Division for Children, Youth & Families" on Justia Law

by
This appeal arose in the wake of the New Hampshire Supreme Court’s decision in In the Matter of Mortner & Mortner, 168 N.H. 424, 429 (2015), in which the Court held that the death of Theodore Mortner (Husband) prior to issuance of a divorce decree abated the divorce action instituted by his then-wife, defendant Lindsay Thompson (Wife). The Supreme Court declined on preservation grounds in that case to address whether a property settlement agreement entered into by Husband and Wife during the divorce action’s pendency survived the action’s abatement as an independently enforceable contract. Following that decision, plaintiffs Husband’s estate (the “Estate”) and his daughter Judith Mortner (“Judith”), filed this action against Wife, alleging breach of the property settlement agreement and unjust enrichment. The Estate and Judith appealed the superior court’s dismissal of their claims. Finding no reversible error in that dismissal, the Supreme Court affirmed. View "Estate of Theodore R. Mortner v. Thompson" on Justia Law

by
Petitioner Wendy White (Mother) appealed a trial court order finding respondent Michael White (Father) was entitled to a retroactive modification of his support obligation based upon the emancipation of the parties’ older child. The terms of the divorce were set out in the parties’ permanent stipulation, which provided that Father was to pay child support for the two children. In June 2014, the parties’ older child became emancipated upon graduation from high school. In 2016, the Father petitioned for “a three year review” of the support order. Following a hearing, the trial court issued an order ruling that “modification [was] required to be made as of the date of emancipation [of the parties’ older child], which in this case means the modification should take place as of August 2014.” The court found that RSA 461-A:14, IV “requires termination of the child support [for the older child] without further legal action” and, therefore, that “there can be no arrearages accrued in connection with child support calculated for [the child] after July 2014 because no further child support for [the parties’ child] could be ordered after July 2014.” As a result, the court recalculated the Father’s child support obligation “from July 2014 through December 2016, using the income and expenses in effect at that time based on one minor child . . . rather than two.” Based upon this recalculation, the court reduced the total amount of arrearages owed by the Father dating back to July 2014. The court also issued a new support order based upon the three-year review as requested by the Father, which reduced his child support obligation to $500 per month. The New Hampshire Supreme Court determined the trial court erred by retroactively modifying the Father’s support obligation and thereby reducing the total amount of arrearages owed by the Father dating back to July 2014. The matter was reversed and remanded for further proceedings. View "In the Matter of Wendy S. White and Michael L. White" on Justia Law

by
In consolidated appeals, petitioner Emily Sanborn, and respondent Timothy Sanborn, appealed circuit court orders that ruled on Timothy’s post-divorce motions. Emily argued the trial court erred by ordering that respondent was entitled to continuation coverage under her dental insurance plan pursuant to RSA 415:18, XVI (2015). Timothy cross-appealed, arguing that the court erred by denying his request for attorney’s fees. Emily argued that because Timothy received dental coverage pursuant to a 2013 amendment to the divorce decree retroactive from April 2011 to April 2014, he received all of the coverage that he was entitled to under the statute. The New Hampshire Supreme Court agreed with this contention and reversed the circuit court as to this point. The Supreme Court affirmed with respect to denial of attorney fees. View "In the Matter of Emily Sanborn and Timothy E. Sanborn" on Justia Law

by
Respondent Arthur Sweatt appealed a circuit court order denying, in relevant part, his motions to reconsider certain orders in his divorce from Patricia Sweatt. He argued the court erred: (1) in denying his motion to abate the divorce; (2) in granting the motion of petitioner Kathleen Paine, administrator of the estate of Patricia Sweatt, to amend by substitution; (3) in distributing the marital property more than six months after the dissolution of the marriage; (4) in finding him, but not Paine, to have been non-compliant with court rules; (5) by denying him due process and equal protection of the law; and (6) in its valuation of the marital real property. Finding no reversible error, the New Hampshire Supreme Court affirmed the circuit court’s judgment. View "In the Matter of Patricia Sweatt & Arthur Sweatt" on Justia Law

by
Respondent Harry Dow, IV appealed a circuit court order requiring him to pay alimony to petitioner Leslie Dow in the amount of $750 per month for three years. When it calculated the amount of alimony, the trial court declined to impute income to petitioner, concluding that it had no authority to do so under RSA 458:19 (Supp. 2016). On appeal, respondent argued, among other things, that the trial court erred because RSA 458:19 authorized the imputation of income for the purpose of determining the amount of alimony. The New Hampshire Supreme Court agreed with respondent and, therefore, vacated and remanded. View "In the Matter of Leslie Dow & Harry Dow, IV" on Justia Law

by
Petitioner Keli Eckroate-Breagy appealed a circuit court order denying her motion to reopen the property distribution decreed in her divorce from respondent Paul Breagy. She filed the motion after the respondent received two inheritances. She also appealed the trial court’s refusal to compel answers to her discovery requests about the inheritances. The New Hampshire Supreme Court found: (1) property acquired by either party after the date that the divorce decree is issued is not marital property; and (2) in light of holding that the inheritances were not marital property, the trial court’s refusal to compel discovery regarding the inheritances was not an unsustainable exercise of discretion. View "In the Matter of Keli Eckroate-Breagy & Paul Breagy" on Justia Law

by
RSA 461-A:11, I(a) permits a court to modify a parenting plan only when the parties agree to specific modification terms. Because the parties here disagreed about specific modification terms, they did not “agree to a modification,” and the trial court did not have authority to modify the parenting plan pursuant to RSA 461-A:11, I(a). Accordingly, because RSA 461-A:11, I(a) did not empower the trial court to modify the parenting plan, and because the record contained insufficient findings to permit the New Hampshire Supreme Court to determine whether the trial court properly modified the plan pursuant to RSA 461-A:11, I(c), the trial court’s order was reversed to the extent that modification of the parenting schedule was ordered pursuant to RSA 461-A:11, I(a). The Supreme Court also vacated the order to the extent that modification of the parenting schedule was ordered pursuant to a different subparagraph of RSA 461-A:11, I, and remanded for further proceedings. View "In the Matter of Kelly & Fernandes-Prabhu" on Justia Law