2005-274, IN THE MATTER OF ROSEMARY SCULLEY AND THOMAS M. SCULLEY, SR.

The plaintiff, Rosemary Sculley, appeals an order of the

orally), for the defendant. Wing & Weintraub, P.C., of Milford (David C. Wing on the brief and Errors may be reported by E-mail at the following address: Borofsky on the brief and orally), for the plaintiff. Borofsky, Amodeo-Vickery & Bandazian, P.A., of Manchester (Stephen E.

page is: http://www.courts.state.nh.us/supreme. ROSEMARY SCULLEY AND THOMAS M. SCULLEY, SR.

errors in order that corrections may be made before the opinion goes to press. No. 2005-274 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as initial appeal. p. 2 appealed the March 24, 2005 order. The defendant, in turn, withdrew his

“Visitation issues properly lie within the jurisdiction of the probate court.” physical condition as perceived by him and his conscience.” The plaintiff pertaining to child support, but not regarding visitation, stating that:

exercise such visitation . . . as he feels he is reasonably able, based upon his hearing, the superior court ruled that it had jurisdiction to entertain motions

minority.

hearing on March 24, 2005, the trial court ruled that the defendant “shall matter jurisdiction relative to the issues of child support and visitation. After a defendant failed to exercise court-ordered visitation with the daughter. After a relative to child support and visitation, in which she again contended that the

Saucier, 121 N.H. at 331. We held that the trial court had

enforcement of child support obligations that accrued during the child’s sole support. Her reliance is misplaced. In Saucier, the mother sought visitation. The plaintiff relies upon Saucier v. Saucier, 121 N.H. 330 (1981), as her as the daughter’s guardian, and also granted the defendant’s motion for provision. On July 10, 2003, the probate court appointed the plaintiff to serve 7, 2004 order should remain in effect. We disagree. medical condition. He also argued that the superior court lacked subject jurisdiction to enforce the original visitation provision and, thus, the September alleged that he was physically unable to exercise custodial visitation due to his pendency of that appeal, the plaintiff filed another motion in superior court provision. The plaintiff argues, however, that the superior court had defendant failed to regularly visit the daughter. In response, the defendant to enter its March 24, 2005 order, which modified the original visitation On appeal, both parties agree that the superior court lacked jurisdiction

The defendant moved for visitation consistent with the original visitation

forth in the decree of divorce.” The defendant appealed that order. During the weekend from Friday evening until Monday morning. She contended that the ordered the defendant “to strictly comply with the visitation requirement set child support. Notwithstanding its previous ruling, the superior court then On September 7, 2004, the superior court held a hearing with respect to

filed a petition for guardianship with the Hillsborough County Probate Court.

things, the defendant be required to exercise custodial visitation every other modification of child support and visitation, requesting that, among other On October 15, 2003, the plaintiff filed a petition in superior court for

On May 8, 2003, after the daughter’s eighteenth birthday, the plaintiff

hours; and (3) at her school, or any other time, by agreement of the parties. residence of his own; (2) each year on her birthday for a period of at least four visitation.

p. 3 instructions to dismiss the plaintiff’s motions to the extent that they pertain to they pertained to visitation. Accordingly, we vacate and remand with of the guardianship. jurisdiction to issue its orders of September 7, 2004, and March 24, 2005, as 3 probate court appoints a guardian, it retains jurisdiction over all legal incidents the person or of the estate or of both of any incapacitated person.” Once the

jurisdiction.”

with those in the original visitation provision. Thus, the superior court lacked

court shall have exclusive jurisdiction over the appointment of a guardian of BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.

custody is a legal incident of guardianship”). “Where exclusive jurisdiction is make custody determinations with respect to the minor because the “right of

support for a disabled child, even after the child reaches the age of eighteen.

defendant’s motion for visitation and awarded him visitation rights consistent the daughter’s guardian. That same day, the probate court granted the issues concerning the daughter. RSA 464-A:3 (2004) states: “The probate On July 10, 2003, the probate court appointed the plaintiff to serve as RSA chapter 458,

Cooperman v. MacNeil, 123 N.H. 696, 700 (1983).

There is no analogous statute that accords jurisdiction to the superior court to provision, even though the daughter was over eighteen years old. (holding that the probate court, and not the superior court, had jurisdiction to

Furthermore, the probate court has exclusive jurisdiction with respect to legislature has recently repealed and recodified certain relevant provisions in

visitation for a disabled child after the age of eighteen.

RSA 461-A:14, IV (Supp. 2005)). This statute addresses only child support. obligations upon the defendant through enforcement of the original visitation See RSA 458:35-c (2004) (repealed, effective Oct. 1, 2005, and recodified at

minority. chapter 458, the statute in effect at the time of the superior court’s decision. effect until after the superior court decided this case, we will refer to RSA 2005) (effective Oct. 1, 2005), but as the repeal of these provisions did not take

compare RSA ch. 458 (2004) with RSA ch. 461-A (Supp.

In addition, there is no statutory support for the plaintiff’s position. The

distinguishable; here, the plaintiff sought to impose continuing visitation

Id. at 332. The facts underlying the present case, however, are

earlier order to pay child support arrearages that accrued during the child’s jurisdiction, even after the child attained the age of majority, to enforce an