2007-051, I/M/O RAYMOND LARUE, JR. AND TRACY (LARUE) BEDARD

The respondent, Tracy (LaRue) Bedard, appeals the decision

orally), for the respondent. Hamblett & Kerrigan, P.A., of Nashua (Andrew J. Piela on the brief and to press. Errors may be reported by E-mail at the following address:

orally), for the petitioner. Wing & Weintraub, P.C., of Milford (David C. Wing on the brief and

editorial errors in order that corrections may be made before the opinion goes No. 2007-051 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. 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 susceptible of a construction that would permit recovery.”

p. 2 for modification. is judicially estopped from asserting that the parties’ actions can form the basis to allege a detrimental present environment under RSA 461-A:11, I(c); and (3) 2 Bedard: (1) failed to allege sufficient facts to warrant a modification; (2) failed

this standard to this case, we assume the truth of the facts alleged by Bedard Gravel v. JGI Eastern, 154 N.H. 791, 793 (2007) (quotation omitted). Applying

ascertain whether the allegations pleaded in the plaintiff’s writ are reasonably “In reviewing the trial court’s grant of a motion to dismiss, our task is to time or child support. permanent stipulation to warrant any change in custodial changed their custodial schedule since the March 2005

written custodial schedule that was more restrictive that [ RSA 461-A:11, I(c). LaRue responds that the dismissal was proper because RSA 461-A:11, I(a); and (3) not addressing her request for modification under (2) improperly grafting a “substantial change in circumstances” burden onto LaRue’s dispute of certain factual allegations to support his motion to dismiss; On appeal, Bedard asserts the trial court erred by: (1) considering modify is factually incorrect. The parties’ [

what they were doing in practice, they have not substantially

Whatever the reason(s) that the parties decided to agree to a

permanent stipulation.” The trial court concluded: schedule has never been nearly as restrictive as respondent agreed to in the modified their agreement by deeds, because the parties’ actual custodial

motion, ruling, “The allegation upon which respondent premises her motion to evidentiary hearing on the motion to dismiss, the trial court granted LaRue’s facts to meet the burden set forth in RSA 461-A:11 (Supp. 2006). After a nonset forth sufficient facts upon which relief could be granted or allege adequate morning to Saturday morning, and one weekend per month. LaRue moved to dismiss Bedard’s petition, arguing the petition did not Bedard has had visitation every Monday morning to Wednesday, Thursday detrimental to the children if implemented. clear and convincing evidence that the stipulated schedule would be addition, Bedard alleged under RSA 461-A:11, I(c) (Supp. 2006) that there was different visitation schedule than that articulated in the stipulation. In modify the permanent stipulation through their conduct; that is, following a A:11, I(a) (Supp. 2006) that the parties had made a de facto agreement to modification of the permanent order. Specifically, she argued under RSA 461- Bedard filed the underlying petition in August 2005, alleging grounds for

parties have agreed upon a more liberal visitation arrangement. In fact, March 2005. However, since the divorce petition was originally filed, the p. 3 RSA 461-A:11, I(a). Therefore, Bedard has alleged sufficient facts to withstand the parties’ conduct may be found to constitute an agreement to modify under

parties have agreed since March 2005 to the modified schedule. As a result,

an implied agreement between the parties.

forth in that contract since it was executed; Bedard specifically alleged that the is undisputed that the parties have not followed the stipulated schedule set permanent stipulation reflects a contractual agreement between the parties. It

established that contractual obligations can be modified by either an express or

the permanent stipulation is not the correct measure under the statute. The

determining whether the parties have agreed to a modification. It is well conclude that the legislature intended contract principles to apply in plain reading of the statute, and absent further statutory guidance, we

However, whether the parties had a consistent visitation schedule since before actions both before and after the stipulation was entered as a permanent order. 3 permanent stipulation. In so doing, the trial court considered the parties’

undisputed actions could not form a modify, such as a writing reflecting the agreement and its terms. Thus, from a

there had been no change in their actual visitation schedule subsequent to the

Here, the trial court ruled that, as a matter of law, the parties’ may occur, or set forth any particular requirements for an agreement to statute does not specify under what circumstances an agreement to modify (quotation omitted). the following circumstances: (a) The parties agree to a modification.” The has been modified is a question of fact for the trial court to determine . . . .” Id. conduct. See Walker v. Percy, 142 N.H. 345, 349 (1997). “Whether a contract N.H. 552, 555 (1982). Such an agreement can be inferred from the parties’

legislative intent.

whole.”

permanent order concerning parental rights and responsibilities under any of RSA 461-A:11, I(a) provides, “The court may issue an order modifying a

the legislature did not see fit to include. Chase, 155 N.H. at 22. and will not consider what the legislature might have said or add language that

Id. We interpret legislative intent from the statute as written

unambiguous, then we need not look beyond it for further indication of Guardianship of R.A., 155 N.H. 98, 99 (2007). If the language is plain and our analysis by looking to the language of the statute itself. In re

Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22 (2007). We begin

legislature’s intent as expressed in the words of the statute considered as a “In matters of statutory interpretation, we are the final arbiters of the

(2007). Cas. Ins. Co. v. Town of Rollinsford, 155 N.H. ___, ___, 927 A.2d 1234, 1236 for legal relief, we will uphold the granting of a motion to dismiss. Farm Family against the applicable law. See id. If the facts alleged do not constitute a basis id. We then engage in a threshold inquiry that tests the facts in her petition and construe all reasonable inferences in the light most favorable to her. See support a claim of an agreement to modify.

p. 4 the trial court required a substantial change in circumstances be alleged to

instance. agreement to modify by conduct could be found. There is no indication that holding above, these issues should be addressed by the trial court in the first that there must be a change in the parties’ actual visitation schedule before an or ruling on these issues. Because the matter is being remanded in light of our entirety, it is clear that the trial court’s choice of words reflects its conclusion

the basis of judicial estoppel. The trial court did not make any determination the context of this statement within the court’s order. Reading the order in its addition, LaRue asserts that the modification petition should be dismissed on 4 allege a detrimental present environment under RSA 461-A:11, I(c). In children if implemented. However, LaRue argues that Bedard has failed to BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

had not “substantially changed” their visitation schedule, Bedard misconstrues court’s order in this manner. Although the trial court noted that the parties stipulation in order to satisfy RSA 461-A:11, I(a). We do not read the trial with her allegation that the stipulated schedule would be detrimental to the Bedard also requested modification under RSA 461-A:11, I(c), dealing

a substantial change in circumstances since the execution of the permanent Bedard also argues that the trial court improperly required her to allege determination is a question of fact for the trial court. agreement to modify occurred. hearing is necessary to determine whether or not an express or implied parties intended by their conduct. A factual finding after an evidentiary visitation schedule is a change court did not hold an evidentiary hearing in order to resolve what, in fact, the the other that it had been changed.” Id. (quotation omitted). Here, the trial party might reasonably infer that the original contract was still in force, and free to amend the statute[ ] as it sees fit.” “[I]t is not sufficient to show an ambiguous course of dealing from which one parties must meet as to the proposed modification.” Id. (quotation omitted). cannot alter its terms without the assent of the other party; the minds of the 349. “It is a fundamental principle of contract law that one party to a contract

modification of the visitation schedule by agreement of the parties. This pursuant to the permanent stipulation under paragraph 3-E, which allows

In this case, the primary issue is whether the parties’ modification of the

154 N.H. 264, 268 (2006) (quotation omitted).

contract law to the modification of parental rights and responsibilities, “it is a motion to dismiss. If the legislature did not intend this application of