2004-0113 IN THE MATTER OF ROBERTA L. KOSEK AND MICHAEL J. KOSEK

weekend, alternate Monday evenings, and various holidays. custodial time (also referred to as “visitation”) with the children every other petitioner has primary physical custody. The respondent has residual 18, 20 01. They share joint legal custody of their two daughters, while the The relevant facts follow. The parties were divorced by decree dated July

right to due process of law. We affirm. not proper for a finding of civil contempt, and that the sanction violated her best interests of the childr en. The petitioner also argues that the sanction was schedule without making an explicit finding that the modification was in the erred by entering a contempt sanction that modified the parties’ visitation by the respondent, Michael J. Kosek. The petitioner argues that the trial court the Salem Family Division (Sadler, J.) granting a motion for contempt brought DALIANIS, J. The petitioner, Roberta L. Kosek, appeals from an order of

orally), for the respondent. Wigg in & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

Mary M. Howie orally), for the petitioner. Howie Law Office, PLLC, of Salem (Jocelyn Thomsen on the brief, and

No. 2004 - 113 Salem Family Div ision

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

schedule was in the best interest of the children. However, the petitioner order, the trial court did not make an explicit findi ng that altering the visitation matters is the best interests of the child. Chandler, 14 p. 2 2 N.H. at 412. In its The court’s overriding concern in structuring custody and visitation

(explaini ng unsustainable exercise of discretion standard). N.H. 137, 144 (1987); cf. State v. Lambert, 147 N.H. p. 2 295, 296 (2001) for an unsustainable exercise of discretion. See Richelson v. Richelson, 130 409 (1997). We review the trial court’s modification of the visitation schedule matters involving custody and visitation. Chandler v. Bis hop, 142 N.H. 404, was in the best interests of the children. The trial court has wide discretion in visitation schedule without making an explicit finding that the modification The petitioner first argues that t he trial court erred by modifying the

merits of the contempt finding; she appeals only the sanction. motion for reconsideration was denied. The petitioner does not appeal the between 3:30 p.m. and 8:30 p.m. on non - custodial Sundays. The petitioner’s awarded additional visitation time with the girls.” The court awarded visits order. The trial court ordered: “Because of the contempt, [the respondent] is proof, the trial court found the petitioner in contempt of the August p. 2 22, 2003 After a hearing, which, by agreement of the parti es, proceeded by offer of

both daughters. respondent requested that the court award him additional custodial time with daughter in a religious education class during his custodial time. The contempt alleging that the petitioner v iolated a court order by enrolling the On September 19, p. 2 2003, the respondent filed an ex parte motion for

both children in religious education classes the next day, September 8, p. 2 2003. fall onto my s cheduled visitations Mondays [sic] . . . .” The petitioner enrolled problem with [the daughter] taking classrooms [sic] as long as the days do not respondent replied to the petitioner’s e - mail later that day, and said, “I have no for scheduling activities during the respondent’s visitation period. The not yet enrolled the children because she did not want to be found in con tempt from September to March. In her e - mail, the petitioner indicated that she had classes for one child’s age group were scheduled on certain Monday nights respondent regarding enrolling the children in reli gious education classes. The On September 7, 2003, the petitioner sent an e - mail message to the

custodial periods unless [R]espondent agrees in writing in advance.” “Petitioner sha ll not schedule any activities for either child during Respondent’s Trial Court (Taube, J.) issued an order on August p. 2 22, 200 p. 3 3, which stated: contempt on January 31, 2002. The respondent filed a counterclaim. The The petitioner filed a petition to modify the divorce decree and for 3

be a modification of a permanent custody decree. Webb, 1 p. 3 33 N.H. at 671. In The trial court has less discretion in determining whether there should

before the court as it dealt with visitation). Preston v. Mercieri, 1 p. 3 33 N.H. 36, was inapplicable to the custody award case in the best interest s of the children. Nelson, 149 N.H. at 548 (noting that rejected the petitioner’s theory that he was entitled to custody so long as it was interests. Pasquale, 146 N.H. at 655. In Nelson, a custody award case, we co urt must choose between differing factual assessments as to the child’s best the relative abilities of both parents to promote the welfare of the child; the In making an initial custody award, the court is called upon to consider

655 (2001). Nelson, 149 N.H. at 548; In the Matter of Pasquale and Paulson, 146 N.H. 652, visitation schedule. See Webb v. Knudson, 1 p. 3 33 N.H. 665, 671 - 72 (1990); custody, a modification of a permanent custody decree and a modification of a it is clear that different standards are applied when a parent seeks an award of (1990); Chasan v. Mintz, 119 N.H. 865, 867 (1 979); Chandler, 142 N.H. at 409, visitation in the same breath, see, e.g., Preston v. Mercieri, 133 N.H. 36, 42 And although we have sometimes uttered the words custody and

Nelson & Horsley, 149 N.H. 545, 548 (200 p. 3 3). custody. See Roberts v. Ward, 126 N.H. 388, 393 (1985); In the Matter of visitation is a far lesser intrusion, or assertion of control, than is an award of custody and awards of visitation. As we have noted in the past, granting Unlike the dissent, w e do see a meaningful difference between awards of

unnecessary. specifically articulated finding of the best interests of the children is only alters visitation time between two parents who share legal custody, a that the sa nction is not in the best interests of the children, and the sanction suggested by the dissent. We think that where the petitioner does not argue In so holding, we are not ignoring the best interests of the children as

respondent was not an unsustainable exercise of discretion by the trial court. Therefore, the contempt sanction awarding additional visitati on time to the visitation schedule was not contrary to the best interests of the children. to the contrary, we will assume that the trial court found that the altered best interests of the children, and in the absence of any evidence or allegation In the absence of an explicit finding that the change in visitation was in the to support its general ruling. Beaudoin v. Beaudoin, 118 N.H. p. 3 325, 328 (1978). We must assume that the trial court made subsidiary findings necessary

schedule was not in the best interests of the children. offered no evidence and made no allegation that a change in the visitation p. 4 4

complies with the court order. The purpose of prosecution for criminal the compl ainant or in an indeterminate jail sentence until the contemnor complainant. Civil contempt proceedings may result in money fines payable to contempt, the punishment is remedial, coercive, and for the benefit of the punishment. Town of Epping v. Harvey, 129 N.H. 688, 691 (1987). In civil The difference between civil and criminal contempt is th e character of the

(1968). practicalities as well as principles. Douglas v. Douglas, 109 N.H. p. 4 41, 43 - 44 general jurisdiction is extensive but the exercise of the power involves 285 (1978). The power of contempt to enforce previous orders of a court of the contempt arose. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, offense that is separate and distinct from the matter in litigation out of which Contem pt is an offense at common law — a specific and substantive

absent from the September hearing. cannot be imposed without the requisite constitutional safeguards, which were a criminal penalty. The petitioner argues that a penalty for criminal contempt issued was not commens urate with a finding of civil contempt, but was in fact We next address the petitioner’s argument that the contempt sanction

otherwise to meet the Perreault standard. Id. at 672 - 73. custody of the children to punish the respondent, where the petitioner failed held that it would not grant the petitioner pe rmanent physical and legal respondent’s interference with the petitioner’s visitation rights despicable, yet respondent had interfered with her visitation rights. The court found the of the bases upo n which the petitioner rested her claim was that the hence the court applied the Perreault standard. Webb, 133 N.H. at 673. One addressed a petition for a modification of a permanent custody decree, and continued references to an “award of custody” cited by the dissent, really Finally, the dissent’s reliance upon Webb is misplaced. Webb, despite its

defined by custodial disputes. differently. We will not base our decision in visitation matters upon precedent visitation – differently, and we see no reason not to continue to treat them have consistently treated these three areas – custody, modification of custo dy, arrangements in the best interest of the child. Chandler, 1 p. 4 42 N.H. at 411. We And, in visitation matters the court has continuing jurisdiction to modify

harmed if he continues to live under the present arran gement. Id. at 671. been so greatly altered that there is a strong possibility the child will be demonstrates that the circumstances affecting the welfare of the child have child custody decree should not be disturbed unless the moving party we cited Perreault v. Cook, 11 p. 4 4 N.H. 440, 443 (1974), for the proposition that a Webb, where the petitioner sought modification of a permanent custody decree, p. 5 5

the full due process protections required by the State and Federal fundamental right, regarding the custody and rearing of her children, without Lastly, the petitioner argues that the contempt sanction deprived her of a

additional visitation time was within the tria l court’s discretion. court and not the rights of the parties). Therefore, we find that the award of of the master’s report indicated the master was vindicating the authority of the particular contempt sanction. Cf. Town of Epping, 129 N.H. at 691 (language sought to protect its authority and vindicate its dignity by issuing this a criminal penalty. There is no indication in the record that the trial court We disagree with the petitioner’s argument that this sanction was in fact

uprooting the children. additional custodial time awarded to the respondent does not amount to a recalcitrant parent. Webb, 133 N.H. at 672. However, we conclude that the their parents and should not be uprooted from their home in order to discipline We recognize that children are not chargeable with the misconduct of

custodial time. inherent contempt power, a mere ten hour per month increase in residual unprecedented then for the trial court to fashion as its own remedy, through its to the trial court for interference with visitation and custodial ri ghts. It is not severe remedy, modification of a permanent physical custody order, is available in [permanent] physical custody.” RSA 4 p. 5 58:17, V(a)(2). Through this statute, a the visitation or custodial rights of the non - custodial parent to “order a change repeated, intentional, and unwarranted interference” by a custodial parent with RSA 458:17, V(a)(2) (2004). RSA 458:17, V(a)(2) allows a court that “finds exercise of coercive power is ana logous to that granted by the legislature in Although stemming from the trial court’s inherent contempt power, this

the respondent’s visitation time would compel the petitioner to obey its orders. parte mot ion for contempt. The trial court presumably found that increasing instead of a fine, the respondent requested additional visitation time in his ex Richelson, 130 N.H. at 140 (defendant ordered to pay $300 fine). In this case, of a fine; a discrete fine is an appropriate remedy for civil contempt. See, e.g., example, our case law does not require that the contemnor control the amoun t phrasing is a hallmark of civil contempt sanctions, it is not absolute. For the punishment is not appropriate for a finding of civil contempt. While this The petitioner argues that since she does not “hol d the keys to the jail,”

N.H. 2 p. 6 67, 270 (1992). amount of time without the ability to purge the sentence. State v. Wallace, 136 unlike the civil contempt defendant, may be imprisoned for a determinate Town of Nottingham, 118 N.H. at 28 p. 5 5. The criminal contempt defendant, contempt is to protect the authority and vindicate the dignity of the court. 6

finding tha t modification is in the best interests of the children. an offending parent, it should only occur upon an express and supportable visitation may well be triggered as a consequence of contemptuous conduct by v. Knudson, 133 N.H. p. 6 665, 672 - 73 (1990). While modification of custody or and may not be used as pawns to punish a non - cooperative parent. See Webb 498, 500 (2004). Children have independent interests in divorce proceedings respectfully dissent. See In the Matter of Giacomini & Giacomini, 150 N.H. respondent additional visitation ti me as a result of the petitioner’s contempt, I record before us, that the trial court erred as a matter of law in awarding the BRODERICK, C.J., dissenting. Because I conclude, based upon the

dissented. NADEAU, DUGGAN and GALWAY, JJ., concurred; BRODERICK, C.J.,

under the State Constitution. Accordingly, we reach the same result under the Federal Constitution as we do N.H. at 409; Tower v. Leslie - Brown, 32 p. 6 6 F.3d 290, 298 (1st Cir. 2003). does the Sta te Constitution under these circumstances. See Chandler, 142 The Federal Constitution offers the defendant no greater protection than

petitioner’s procedural due process rights were not violated. these rights by agreeing to proceed by offer of proof. Therefore we find that the the beginning of the hearing on the sanction, the pet itioner’s counsel waived against her and challenge such evidence as due process requires. However, at opportunity to call and cross - examine witnesses, to be informed of evidence was delivered to the p etitioner’s counsel. The petitioner also had an additional custodial time, through his motion for contempt, a copy of which The petitioner had notice of the sanction sought by the respondent,

that the petitioner’s procedural due process rights were violated in this case. challenge such evidence. Chandler, 142 N.H. at 409. However, we do no t find call and cross - examine witnesses, to be informed of all adverse evidence, and to The right to be heard in custody and visitation cases encompasses the right to requires that parties whose rights are affected have an o pportunity to be heard. Provencal v. Provencal, 122 N.H. 793, 797 (1982). Procedural due process by the due process provisions of the State and Federal Constitutions. regarding the custody and rearing of children is a fundamental right protected We agree with the petitioner that a parent’s interest in decisions

N.H. 22 p. 6 6, 231 - 33 (1983). Constitution, and cite federal opinions for guidance only. State v. Ball, 124 Constitutions. We first address the petitioner’s claim under the State p. 7 7

additional custodial time awarded to the respondent does not amount to The majority acknowledges Webb, but nevertheless concludes that “the

trial court’s order was not in keeping with the m andate of Webb. behavior, rather than pursuant to a best interests finding, I believe that the to the respondent was a direct response to the petitioner’s contemptuous visitation awards. Because the trial court’s award of additional visitation time that custody awards are not devices to punish or reward parents, applies to as a means to punish contempt and, therefore, I believe that the rule of Webb, no meaningful difference between awards of custody and awards of visitation contemptuous behavior, and to enforce the respondent’s visitation rights. I see awarded to the respondent was in direct response to the petitioner’s face, the trial court’s words demonstrate that the additional visitation time [p.m.] and 8:30 [p.m.] on non - custodial Sundays.” (E mphasis added.) On their additional visitation time with the girls. He shall be allowed visits between 3:30 court ordered: “Because of the contempt, [the respondent] is awarded added); see Houde v. Beckm eyer, 116 N.H. p. 7 719, 721 (1976). Here, the trial Webb, 133 N.H. at 672 - 73 (quotation, citation and brackets omitted; emphasis

end. Rather, the contempt powers of the court may be exercised to that means of enforcing the visitation rights of the noncustodial parent. upon the best interests of the child, and may not be sust ained as a custody. Thus . . . an award of custody must ultimately be based one of the parties is not necessarily controlling on the question of to reward or punish parents, and a violation of a court decree by a recalcitrant parent. Indeed, the award of custody is not a device and should not be uprooted from their home in order to discipline Children are not chargeable with the misconduct of their parents

means of punishing a non - cooperative parent: We have previously stated that custody modifications are not a proper

findings, I do not address the nature of the contempt itself. was improper because it did not involve a best interests analysis with requisite criminal. Because I believe th at the specific contempt sanction in this case majority concludes that the contempt in this case was civil, rather than accompany criminal contempt proceedings. As to the latter argument, the civil, the trial court erred in failing to afford her the procedures which children; and (2) that because the contempt sanction was criminal, rather t han without considering and making findings as to the best interests of the unsustainable exercise of discretion in modifying the parties’ custody order errors with respect to the sanction, including: (1) that the court committed an and fully recited by the majority. On appeal, the petitioner argues several The relevant facts giving rise to the contempt sanction are undisputed p. 8 8

visitation matters is the best interests of the child. In its order, the The court’s overrid ing concern in structuring custody and

contrary to the best interests of the children.” The majority also states: assume that the trial court found that the altered visitation schedule was not modification of visitation was in the best interests of the children, “we will The majority states that in the absence of an explicit finding tha t

elected not to go. additional visitation time, and I am not prepared to tread where the trial court considered the best interests of the children in awarding the respondent girls.” (Emphasis added.) Nothing in this statement implies that the court of the contempt, [the respondent] is awarded additional visitation time with the analysis was deemed necessary. The trial court unequivocally stated, “Because language of the trial court’s order clearly de monstrates that no best interests necessary subsidiary findings to sustain its visitation award because the (Citation omitted.) I disagree that we should assume the trial court made the

interests of the children. that the altered visitation schedule wa s not contrary to the best allegation to the contrary, we will assume that the trial court found interests of the children, and in the absence of any evidence or an explicit finding that the change in visitation was in the best findings necessary to support its general ruling. In the absence of We must assume that the trial court made subsidiary

majority concludes: visitation time to the respondent was in the best interests of the children, the the trial court did not m ake an express finding that awarding additional 404, 411 (1997); Richelson v. Richelson, 130 N.H. 137, 144 (19 p. 8 87). Although controlled by the best interests of the children. Chandler v. Bishop, 142 N.H. We have previously recognized that visitation arrangements are

interests of the children. visitation or custody without an independent determination of the best visitation is ordered. Contempt, by itself, can never justify a change in court to expressly consider the best interests of the children before a change in emotions, and greatly disrupt his growth as an individual”). It is for the trial between a father and mother can destroy his sense of security, confuse his 440, 443 (1 p. 9 974) (recognizing that “[t]he shuffling of a child back and forth tremendous impact on those of another child. Cf. Perreault v. Cook, 114 N.H. no effect on one child’s feelings of security and stability, it may have a Therefore, while five hours of visitation every other Sunday may have little to secure and stable m ay differ significantly from what another child needs. uprooting the children.” In practice, however, what one child needs to feel 9

findin g. Accordingly, I respectfully dissent. Consistent with our jurisprudence, I believe that justice demands such a result of the petitioner’s contempt, was in the children’s best interests. awarding the respondent additional visitation time with the children, as a should be sustained. The trial court failed to mak e an express finding that Accordingly, I disagree with the majority that the sanction ordered here

as invasive of parents’ rights). lesser intrusion or assertion of control than custody, and therefore not nearly parent’s State and federal constitutional rights, noting that vis itation is a far rights to unrelated third party over express objection of sole parent violates Horsley, 14 p. 9 9 N.H. 545, 548 (2003) (in deciding whether granting custodial (referring to visitation as a custody matter). But see In the Matter of Nelson & RSA 458:17, V(b) (2004) (same); see Preston v. Mercieri, 133 N.H. 36, 42 (1990) Webb, 133 N.H. at 671 (party seeking to modify custody has burden of proof); to alter the visitation sched ule, bore the burden of proof in that proceeding. Cf. the visitation schedule. To the contrary, the respondent, as the party seeking not have any burden where, as here, she was not the party seeking to modify accordance with the best interests of the child”). Moreover, the petitioner does parent permissible if court determines that modification “would be in unwarranted interference by a parent with the visitation rights of the other V(a) (2004) (modification of custody due to repeated, intentional and ruling was “unquestionably in the best interests of t he child”); cf. RSA 458:17, Richelson, 130 N.H. at 145 (alteration of visitation schedule sustained where but whether such a change would be in the child’s best interests. See however, is not whether a change would be contrary to a child’s best interests, The relevant inquiry for purposes of modifying custody or visitation,

(Citation omitted.)

interests of the children. that a change in the visitation schedule was not in the best However, the peti tioner offered no evidence and made no allegation visitation schedule was in the best interest of the children. trial court did not make an explicit finding that altering the