2005-776, IN THE MATTER OF MOISES AND ELSA CHOY

The petitioner, Moises Choy (father), appeals an order

brief and orally), for the respondent. Law Office of Barbara J. Griffin, of Manchester (Barbara J. Griffin on the to press. Errors may be reported by E-mail at the following address:

orally), for the petitioner. Brian G. Germaine, P.A., of Derry (Brian G. Germaine on the brief and

IN THE MATTER OF MOISES CHOY AND ELSA CHOY

editorial errors in order that corrections may be made before the opinion goes No. 2005-776 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Derry Family Division 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 the child “loves his father and . . . wants to spend time with [him] but he does

p. 2 son more than anything in the world . . . [and] is fiercely protective,” and that

a secret from your parent.” The GAL also reported that the father “loves his according to his teacher, he asked her “what to do when you are asked to keep secret from his mother, which distressed the child to the point where,

Florida without his mother’s knowledge and directed him to keep the trip a

she sought sole physical custody of her son.

him with corporal punishment if he refused to do so; and (3) took his son to son to provide false and negative information about his mother and threatened openly in front of his son in a derogatory way about the mother; (2) coached his 2

prepared her report, the mother also filed a motion to modify custody in which the father. In October, after the GAL was appointed but before she had appointment, the only pending motion to modify custody was the one filed by

things, the GAL noted in her April 2005 report that the father: (1) talked

home environment provided by both parents. At the time of the GAL’s

unfounded. the mother’s boyfriend, and one meeting with the child’s teacher. Among other boyfriend. DCYF investigated and determined that the allegations were meetings with the mother, three meetings with the father, two meetings with alleged physical abuse of his son and sexual impropriety by the mother and her The GAL’s investigation involved four meetings with the child, four allowed to continue to attend the Manchester school system.” The trial court ruled that, “[p]ending further court order, the child shall be her son had been attending school there since the start of the academic year.

mother filed a motion for custodial provisions of the Divorce Decree . . . be implemented forthwith.”

visitation; (3); the parenting skills of both parents; and (4) the suitability of the investigate and report on four issues: (1) modification of physical custody; (2) In July, the trial court assigned a GAL for the child and directed her to

Hampshire Division for Children, Youth and Families (DCYF) to report the

her son in the Manchester school system because she lived in Manchester and

included a requirement that the child be enrolled in school in Derry, the response to this, the trial court ordered, among other things, that “[t]he implementation of the custodial provisions in the divorce decree, which Shortly after the trial court issued its order requiring the immediate

In addition to moving for sole custody, the father also contacted the New

custody and that a guardian ad litem (GAL) be appointed for the child. In activity in front of him. The father requested that he be granted sole physical struck the child and that the mother and her boyfriend engaged in sexual change of custody, alleging, in part, that the mother’s boyfriend frequently In February 2004, the father filed a verified ex parte motion seeking a the child would “benefit from spending more of his time with his mother, who is

p. 3 caused by the change in environment.” The trial court further explained that

the advantage of modifying custody outweighs the likelihood of harm to be environment is detrimental to the child’s mental and emotional health and that respect to paragraph V(a)(3), the trial court found “that the present

proposed modification is found to be in the best interests of the child. With

each party asserts that the original arrangement is not working and the (repealed 2005), which allows modification of a permanent custody order when found that the evidence satisfied the standard in RSA 458:17, V(a)(5) (2004)

harms likely to be p. 3 caused by the change in environment. In addition, the court

detrimental and that the advantages of the proposed modification outweigh any clear and convincing evidence that the child’s present environment is 2006)), which allows modification of a permanent custody order upon proof by

V(a)(3) (2004) (repealed 2005 and recodified at RSA 461-A:11, I(c) (Supp.

The trial court determined that the evidence met the standard in RSA 458:17,

allowing the child to attend school in the district where his mother resides. those weeks when he does not have custody for the entire weekend; and (4) granting the father custody from Thursday after school until Friday morning on

on alternate weeks, from Thursday after school until Monday morning; (3)

granting the mother primary physical custody; (2) granting the father custody recommendations concerning the custodial schedule, which included: (1) Based upon those and other findings, the trial court adopted the GAL’s

more able to foster a good relationship between the child and the other parent.

his mother” and that of the two parents, the mother appeared to be the one is caused by [his father], and is given far too much negative information about child “lives in an environment of extraordinary hostility, the majority of which

mother’s motion to modify custody. In its order, the trial court noted that the to maintain his relationship with his father in a significant way. damaged. If [he] lives with his mother, I believe that he will be able

2005, the trial court accepted the master’s recommendation and granted the such dominance that [his] relationship with his mother will be

and that her boyfriend had verbally abused him. By order dated July 21, contacted the GAL alleging that the mother had physically abused their son of time [the father] would influence [his son] so greatly and with motions to modify custody. Shortly before day two of the hearing, the father The master subsequently held a two-day hearing on both parties’

time with [the father].” awarded primary physical [custody] of [the boy] while still providing substantial Based upon that conclusion, the GAL recommended “that [the mother] be

I also believe that if the situation were left as it is that over a period

he is currently being told to do.” Based upon her findings, the GAL concluded: not want to have to hear, say or report bad things about his mother as I believe living environment.”

p. 4 consistent since their divorce [and] does not present a change in the child’s

“pattern of mutual recrimination [between him and the mother] has been however, that the trial court misapplied RSA 458:17, V(a)(3) because the observed by the child’s teacher, his counselor and the GAL. The father argues,

present arrangement.”

demonstrable negative effects of the father’s behavior upon his son, as

strong possibility the child will be harmed if he continues to live under the address the father’s argument concerning paragraph V(a)(5). court correctly applied paragraph V(a)(3) to the facts in this case, we need not mother and attempted to turn the child against his mother; and (3) the

affecting the welfare of the child have been so greatly altered that there is a be disturbed unless the moving party demonstrates that the circumstances the court was not entitled to rely upon RSA 458:17, V(a)(3). Because the trial various ways in which the father involved the child in his dispute with the arrangement: “The relationship established by the custody award should not hostility toward the mother, expressed in the presence of the child; (2) the In support of its ruling, the trial court noted: (1) the father’s anger and

motion to modify; and (2) that absent a finding of a change in circumstances, for trial courts to use in determining whether to modify a child custody In Perreault v. Cook, 114 N.H. 440 (1974), we articulated the standard order outweighs the harm likely to be caused by the change in environment.”

the GAL’s report and disregarding the evidence that he presented. arrangement was not working at the time of the hearing on the mother’s statute, both parties were not asserting that the original joint custody applying RSA 458:17, V(a)(5) because, contrary to the plain language of the health and that the advantage to the child of modifying a permanent custody present environment is detrimental to the child’s physical, mental, or emotional custody order if it “finds by clear and convincing evidence that the child’s RSA 458:17, V(a)(3) provides that a trial court may modify a permanent

unless it clearly appears that the court unsustainably exercised its discretion.

and unsustainably exercised its discretion by placing too much reliance upon

The father presents two legal arguments: (1) that the trial court erred by

Matter of Giacomini & Giacomini, 151 N.H. 775, 776 (2005). However, we review a trial court’s statutory interpretation de novo. In the In the Matter of Fulton & Fulton, 154 N.H. ___, ___ (decided October 31, 2006).

We will not overturn a trial court’s modification of a child custody order

According to the father, the trial court erred by misapplying RSA 458:17

not be as often subjected to his father’s alienation.” This appeal followed. far more supportive of his father and their relationship, and will consequently the statute clearly expresses such an intention,

p. 5 established in

Although we will not construe a statute as abrogating the common law unless

clearly expresses the legislature’s intent to replace the legal standard we

in circumstances as a prerequisite to relief under RSA 458:17, V(a)(3). intentionally chose not to require the moving party to plead and prove a change

laws.” superseded by the enactment of RSA 458:17, V(a)(3). litigants to learn the correct legal standard without “having to research case Perreault. We now hold that the Perreault standard was

572, 575 (1984), the statute at issue here, reinforced by the legislative history, that the statute was not to be construed to alter the Hill v. Dobrowolski, 125 N.H.

458:17, V(a)(3). If the intent of the legislature was to codify, by statute, the committed legal error by ruling that the mother had met the standard in RSA change in circumstances, and thus we conclude that the legislature The 2000 version of paragraph V, unlike Perreault, said nothing about a

can ask the court to change permanent child custody,”

stating, in the legislative history, that the statute was intended to allow in establishing a standard different from the standard stated in Perreault; and (3) standard for modification of a custody decree was the one we had established Perreault standard; (2) by: (1) eliminating the caveat in the former version of paragraph V providing (repealed 2000). At the time the new version of paragraph V was enacted, the its intent to replace Perreault, rather than simply restate the rule of that case, for modifying child custody and replaced Perreault. The legislature indicated well,” id. In other words, the 2000 enactment both codified the legal standard for modifying custody] in statute rather than having to research case laws as trial court did not find, as a factual matter, any change in circumstances, it (2000), and as an effort to “help those filing pro se to find [the legal standard

legislative history as a codification of the “circumstances under which a parent The version of RSA 458:17, V enacted in 2000 was characterized in the

not codify Perreault; it replaced the Perreault standard with a new one. Matter of Hunt and Hunt, 146 N.H. 65, 66-67 (2001). But the legislature did physical custody of the child or children.” RSA 458:17, V (Supp. 2000) Perreault standard, then the father’s argument might have merit. See In the

circumstances survived the 2000 revision of RSA 458:17, V, and because the In the father’s view, Perreault ’s requirement of a change in

(2001). Perreault. See In the Matter of Pasquale and Paulson, 146 N.H. 652, 654

construed to alter the standard for modification of a custody decree affecting that “[e]xcept as provided in this paragraph, nothing in this section shall be Laws 2000, ch. 145, repealing the previous version that had provided, in part, In 2000, the general court enacted a new version of RSA 458:17, V, see evidence casting doubt upon the credibility of the mother. p. 6 failed to take into account evidence supporting his assertions and ignored Accordingly, we find no merit in the father’s arguments that the trial court

nothing in this record constituting an unsustainable exercise of that discretion.

presumptive weight than the other evidence in a case.

testimony and evidence is the essence of judicial discretion, and there is by other evidence favorable to his position. Choosing between contradictory persuaded by evidence unfavorable to his position and that it was unpersuaded recommendations of a GAL do not, and should not, carry any greater

reveals that his real contention is that the trial court was erroneously investigation. As the father correctly points out, we have held that the relying upon the GAL’s report which, he asserts, was based upon a faulty given testimony are for the trial court to resolve. We now turn to the father’s contention that the trial court erred in

characterizes as incomplete and biased. mother; and (3) relying almost entirely upon the GAL’s report, which he appears that the trial court engaged in an unsustainable exercise of discretion. assertions; (2) ignoring evidence casting doubt upon the credibility of the

unsustainable exercise of discretion by ruling as it did, a closer examination Although the father contends that the trial court engaged in an testimony, questions about the credibility of witnesses and the weight to be circumstances. 142 N.H. 733, 735 (1998). court’s determination if it could reasonably be made, Matthews v. Matthews, State v. Lambert, 147 N.H. 295, 296 (2001)), and we will not disturb the trial made,’” In the Matter of Lockaby & Smith, 148 N.H. 462, 465 (2002) (quoting establishes an objective basis sufficient to sustain the discretionary judgment Fulton, 154 N.H. at ___. “This means that we review only ‘whether the record

N.H. 137, 143 (1987). Our review is limited to determining whether it clearly discretion by: (1) failing to take into account any evidence supporting his

and assessing the credibility and demeanor of witnesses. Conflicts in the ordering a modification of custody without evidence of a change in discretion necessarily extends to matters such as assigning weight to evidence visitation. In the Matter of Kosek & Kosek, 151 N.H. 722, 724 (2005). That The trial court has wide discretion in matters involving custody and

The father next argues that the trial court unsustainably exercised its

circumstances. Accordingly, the trial court did not commit an error of law by no consequence that the mother did not plead or prove a change in her son’s Perreault, and did not include a change in circumstances requirement, it is of Because RSA 458:17, V(a)(3) replaced the standard enunciated in and report.

p. 7 establishes an objective basis for the trial court’s reliance upon her testimony

DCYF file. The father offers only the suggestion that the DCYF “file contains

reasonable explanation for why she proceeded as she did, the record perceived bias in the GAL’s report. In any event, because the GAL gave a references as witnesses at the hearing and in that way counterbalancing any

favorable to the father could have resulted from the GAL’s examination of the

Moreover, there was nothing that prevented the father from calling his

investigated the matter, it is difficult to see what additional information mother and her boyfriend were unfounded and the GAL independently DCYF investigation resulted in a determination that the charges against the

information would have altered the GAL’s report if it had it been collected. information may have been available from those contacts or suggest how that of the mother’s references but none of his, he does not indicate what

videotapes produced as part of the DCYF investigation. Moreover, because the

that the GAL’s report was biased against him because the GAL contacted some

aware, through multiple sources, of the information contained in the own investigation and reached the same conclusion as DCYF; and (3) was discussed the DCYF investigation with someone from DCYF; (2) conducted her

trial court to make that determination. investigation upon the mother and her boyfriend. While the father complains and her boyfriend. Thus, as the GAL explained at the hearing, she focused her filed by the father, in which he made serious allegations against the mother

how much weight a trial court should accord specific evidence. It is for the

appointment, the only pending request for a change of custody was the one

upon the GAL’s testimony even though she did not examine the materials

weight to the GAL’s recommendations. Moreover, it is not our role to calculate and analysis of a range of evidence, we cannot say that it gave unreasonable joint custody arrangement was working well. Given the trial court’s discussion that resulted from the DCYF investigation. At the time of the GAL’s

The record also p. 7 establishes an objective basis for the trial court’s reliance

the continuation of the hearing before the master – and his statement that the references he submitted to her and not to view videotapes and other materials unfairly biased against him due to the GAL’s decisions not to contact any of the exercise of discretion by crediting a report that, in the father’s view, was

allegations that the mother was harming the child – one made just days before and (3) the seemingly self-contradictory nature of the father’s various testimony of a witness to a specific incident involving the Choys and their son; Nor do we conclude that the trial court committed an unsustainable

___, ___ (decided November 1, 2006).

discussed other evidence including: (1) the parties’ own testimony; (2) the 143. While the trial court did rely upon the GAL’s report, its ruling also p. 8 8

custody order in this case.

case file.

unsustainably exercise its discretion, we affirm its decision to modify the

GAL’s report, notwithstanding her decision not to examine the actual DCYF the record establishes an objective basis for the trial court’s reliance upon the father’s argument concerning the GAL’s decision not to contact his references, DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

Because the trial court committed no errors of law and did not

and, therefore, give balance to the Guardian ad Litem report.” As with the videotapes and other information that would reflect the other side of the story