2006-038, I/M/O MARIE MANNION AND MICHAEL MANNION

The petitioner, Marie Mannion, appeals an order of the

Desrochers on the brief, and David W. Sayward orally), for the respondent. Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Jill A. to press. Errors may be reported by E-mail at the following address:

Melanie M. Chaput on the brief, and Mr. Bailinson orally), for the petitioner. Bailinson, Capuchino & O’Leary, of Manchester (David I. Bailinson and

MARIE MANNION AND MICHAEL MANNION

editorial errors in order that corrections may be made before the opinion goes No. 2006-038 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Portsmouth Family Division 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 p. 2 22 as have been corrected.” 2 arguments in turn. could have discovered or chose to ignore at the very moment when it could

issues before the trial forum.” there’s a finding before the Court. The Court can take

know, we’ve been through this and we’ll stipulate [Respondent’s counsel]: I, I’m going to object. You

trial court an opportunity to correct an error it may have made.” following colloquy ensued: that occurred on January 9, p. 2 2004. Respondent’s counsel then objected. The sole parental decision-making responsibility and primary parenting time. At trial, petitioner’s counsel questioned her about the alleged assault

divorce on the grounds of irreconcilable differences. We address these 391, 393 ( p. 2 2004). “Parties are not entitled to take later advantage of error they was not preserved for appellate review. Tiberghein v. B.R. Jones Roofing Co., 151 N.H. “The appealing party bears the burden of demonstrating that it raised its

and ellipsis omitted).

requirement, grounded in common sense and judicial economy, affords the state “explicitly the specific ground of objection.” N.H. R. Ev. 103(b)(1). “This Respondent against the Petitioner.” The final decree awarded the respondent Winstead, 150 N.H. p. 2 244, 246 (2003) (quotation omitted). The objection must specific objection is required to preserve an issue for appellate review.” State v. “The general rule in this jurisdiction is that a contemporaneous and

making responsibility to the respondent; and (3) awarded the respondent a apply RSA 461-A:5, III (Supp. p. 2 2006) and awarded sole parental decision- no abuse occurred on January 9. The record reveals, however, that this issue required by the doctrines of res judicata and collateral estoppel; (2) failed to that res judicata and collateral estoppel barred the trial court from finding that violence order which included a finding to the contrary. Specifically, she argues that no assault occurred on January 9, 2004, in light of the final domestic The petitioner first argues that it was legal error for the trial court to find

I. Res Judicata and Collateral Estoppel domestic violence on January 9, p. 2 2004 nor was there prior verbal abuse by the grounds of irreconcilable differences. The court found that there had been “no 3, 2005, after which the trial court awarded the respondent a divorce upon the

to apply the finding of abuse throughout the divorce and custody proceeding as On appeal, the petitioner argues that the court erred when it: (1) failed

January 9 assault. The final contested divorce hearing occurred on November based grounds as a result of a pattern of abusive conduct including the alleged issue in a motion to reconsider. will not overturn its determination except where there p. 3 decree in which it first made its finding that no abuse had occurred, raise the

disagree. decision-making power to her because of the prior finding of abuse. We 3 him. Specifically, she argues that the court was required to award sole awarded sole parental decision-making responsibility under RSA 461-A:5, III to

In doing so, the trial court has wide discretion, and we determinations. Nor did the petitioner, after the trial court issued the divorce

apply the finding when making parental rights and responsibility N.H. __, __, 911 A.2d 14, 21 (2006). the court to accept the finding of assault by the Derry Family Division and is the best interest of the child. In the Matter of Hampers & Hampers, 154 point during the trial did petitioner’s counsel assert that the doctrines required When determining matters of custody, a trial court’s overriding concern

court erred when, despite the prior finding of abuse against the respondent, it The petitioner next argues that, collateral estoppel notwithstanding, the

II. RSA 461-A:5, III

N.H. at 246. judicata or collateral estoppel argument was raised at the final hearing. At no reconsideration, the issue is not preserved for our review. Id.; Winstead, 150 objection” to the respondent’s testimony nor raised her theory in a motion for Because the petitioner neither made “a contemporaneous and specific this incident arose. Purchase Group, 150 N.H. 270, 274 (2003).

Aside from this discussion regarding the prior finding of abuse, no res to accept the fact that there was a finding.

Master DalPra made a finding under the statute that [Respondent’s counsel]: I will only stipulate that

I’ll just move on. then I’ll make a connection to our fault grounds and there’s a stipulation there was abuse and then, and our fault grounds so — I’ll be happy to move on if [Petitioner’s counsel]: Oh, yes. But it’s also part of

[Court]: I don’t . . . think I can. I mean I think I have

to relitigate this trial. judicial notice there’s a finding, you know. No reason order. p. 4 court shall provide written findings to support the

the evidence.

responsibility is granted despite evidence of abuse, the

same court that makes the finding of abuse. Here, that court was the the abused spouse or both. If joint decision-making “the court” making orders for the allocation of parental rights must be the and responsibilities that best protect the children or parental rights finds that shall make orders for the allocation of parental rights abuse has occurred. It is clear from the context that occurred. The statute applies only when “the court” responsible for allocating the statute is not triggered by a finding of trial court are binding upon this court if supported by another court that abuse has court acknowledged that the Derry Family Division had made such a finding, temperament of the parents, and the findings of the The trial court, however, found that no abuse had occurred. While the of witnesses, as well as the character and

a finding of abuse. RSA 461-A:5. making responsibility is in the best interest of the child unless there has been

responsibility is appropriate. In such cases, the court determining whether joint decision-making

criminal justice system as a result of Petitioner’s unfounded allegations.” abuse as harmful to children and as evidence in

173-B:1, I has occurred, the court shall consider such extent upon the firsthand assessment of the credibility Where the court finds that abuse as defined in RSA

RSA 461-A:5, III provides:

responsibility under RSA 461-A:5, there is a presumption that joint decision- When devising a parenting plan relating to decision-making

mistrustful of the Petitioner since he [had] already been subjected to the Respondent for events which did not occur and the Respondent [was] possible. The trial court found that the petitioner remained “terrified of the determination in any custody case depends to a large parenting plan for the parties because communication between them was not trial court’s discretionary judgment. The trial court’s Pursuant to RSA 461-A:4 (Supp. 2006), the trial court formulated a whether it contains an objective basis to sustain the

Id. at 21-22 (quotations and citations omitted).

means that we review the record only to determine has been an unsustainable exercise of discretion. This p. 5 5 behavior was the

endanger reason” during the marriage, RSA 4 p. 5 58:7, V; and (2) the respondent’s show that: (1) the respondent so treated her as “seriously to injure health or and assess the credibility of witnesses. was in the best position to evaluate the evidence, measure its persuasiveness occur. While the testimony presented by the parties conflicted, the trial judge concurred. court found that the alleged “incidents of physical and verbal abuse” did not BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

marriage. See RSA 4 p. 5 58:7-a (2004). that irreconcilable differences caused the irremediable breakdown of the findings, and we find no error in its decision to grant the divorce on the ground Gronvaldt, 150 N.H. 551, 554 (2004). The record supports the trial court’s (2004). To obtain a divorce on fault grounds, the petitioner was required to In the Matter of Gronvaldt &

that the court’s exercise of discretion was unsustainable. court’s determination regarding decision-making responsibility, we cannot say 2003 and that they entered marriage counseling that same year. The trial and normalcy. Because there is evidence in the record to support the trial Both parties testified that their marriage began to deteriorate around inability to communicate, the behavior of the parties and the child’s stability v. Ebbert, 123 N.H. 2 p. 5 52, 254 (1983).

primary cause of the breakdown of the marriage. See Ebbert

There is no statutory presumption that relates to fault under RSA 4 p. 5 58:7

support them or they are legally erroneous. Id. will affirm the trial court’s factual findings unless the evidence does not question for the trial court. See Hampers, 1 p. 5 54 N.H. at __, 911 A.2d at 20. We irreconcilable differences or the respondent’s misconduct was a factual respondent should have sole decision-making responsibility, the parties’ Whether the irremediable breakdown of the marriage was caused by considering the finding of abuse against the respondent. We disagree. the divorce on fault grounds. She again argues that the court erred by not Finally, the petitioner argues that the trial court erred by not granting

The court considered the testimony of the guardian ad litem that the

Accordingly, RSA 461-A: p. 5 5, III did not apply. Portsmouth Family Division, which found that no abuse occurred.