2009-305, In the Matter of Eric W. Heinrich and Mary Ellen Curotto

Victor W. Dahar, P.A.

No. 2009-305

Derry Family Division

divorce decree issued by the Derry Family Division (Moore HICKS, J. The respondent, Mary Ellen Curotto (wife), appeals the final

Brian G. Germaine, P.A.

and remand. parent is offered the right to care for them. We affirm in part, vacate in part, care of a third-party caretaker for more than forty-eight hours before the other an overpayment of child support and by requiring that the children be in the the court erred in ruling that the husband was entitled to reimbursement for marriage to the petitioner, Eric W. Heinrich (husband). She also contends that her request to relocate to Florida with the three minor children from her

orally), for the petitioner. THE SUPREME COURT OF NEW HAMPSHIRE

and orally), for the respondent.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as p. 2 On April 5, 2007, a Marital Master (Cross

would have to move from the only home they have known. relocation — the best interests of the child standard set forth in RSA 461-A:4 children’s best interests. The children would not be able to see him weekly and children to Florida and as to which legal standard governed this proposed husband opposed this move, primarily because he did not believe it was in the Florida. The parties disagreed as to whether the wife should relocate with the health insurance and a flexible work schedule to take care of the children. The residence in New Hampshire and the other based upon their residence in assistant general manager of the hotel with a number of benefits, including negotiated and agreed to parenting plans, one based upon the children’s Aire Motel on St. Petersburg Beach. Her family offered her a position as At the final hearing, the parties presented the court with two separately family lives in the St. Petersburg, Florida area and owns and operates the Bonshe could “relocate the children to the State of Florida.” The wife’s extended court to award her primary residential responsibility for the children so that 2 petition for divorce on March 11, 2007. In this petition, the wife asked the breakdown of the marriage. The wife filed an answer and cross-motion to

the wife’s request to relocate temporarily to Florida with the children. temporary parenting plan giving the father greater parenting time and denied parent. Based upon this report, the trial court partially modified the existing and that the children would “suffer a loss” if they were separated from either irreconcilable differences between the parties caused an irremediable children are strongly bonded to both parents,” that both “are good parents,” On November 10, 2006, the husband filed for divorce, alleging that submitted a detailed preliminary report in which she reported that “the relocation would be in the children’s best interests. In August 2007, the GAL appointed a guardian ad litem (GAL) to study, among other issues, whether order,” the court also barred relocation outside of New Hampshire and a Child,” would govern any proposed relocation. “Pending agreement or further provided that RSA 461-A:12 (Supp. 2009), entitled “Relocation of a Residence of wife but awarded the husband regular parenting time. The parenting plan a temporary parenting plan that gave primary residential responsibility to the

intended to return to Florida. The husband disputes this. Hampshire was to be temporary, no longer than five years, after which they their three sons were born. According to the wife, the parties’ stay in New waitress and bartender. In 2002, the parties relocated to Derry where two of a professional chef. The wife worked part-time in the hospitality industry as a Hampshire, following employment opportunities for the husband, who works as During their twelve-year marriage, the parties moved from Florida to New December 1996 and have three minor sons born in 2000, 2002 and 2004. The record supports the following facts. The parties married in Florida in p. 3 RSA 461-A:6. applied the best interests of the child standard set forth in RSA 461-A:4 and no permanent parenting decree in place, and, therefore, the court should have modify an existing permanent parenting decree. Here, she asserts, there was contends that RSA 461-A:12 applies only to a post-divorce relocation request to A:12 in denying her petition to relocate with the children to Florida. She The wife first argues that the trial court erred when it applied RSA 461-

motion for reconsideration, which the court denied. This appeal followed. found that the New Hampshire parenting plan should apply. The wife filed a omitted.) Therefore, the trial court denied the wife’s request to relocate and “noticeab[ly] decrease” and that the children “will suffer a loss.” (Quotation observed that the husband’s parenting time with the children would “has bonded” with the children. If the children relocated to Florida, the court The court noted that the husband was “an involved father” and that his family

relocate to Florida. 3 relationship with the parties’ minor children if the [wife were] to not overcome the negative impact to the quality of the [husband’s] and the [better] quality of life argument raised by the [wife] does acclimated to the Derry area, the local schools and the community,

factors set forth in Tomasko v. DuBuc would help her raise the children in Florida. The trial court then applied the opportunity in her family’s business as well as an extended family network that legitimate reason for the proposed relocation to Florida — she had a unique job their home in Derry, New Hampshire, the children are well forth in RSA 461-A:12. The trial court found that the wife had demonstrated a State, all three children have known no other home other than request to relocate to Florida based upon the burden-shifting standard set for over six years, two of their children have been born in this In March 2009, the trial court issued a final order, denying the wife’s time, that the parties have resided in the State of New Hampshire the [wife] has not resided in the State of Florida for quite some

found that: whether the proposed relocation was in the sons’ best interests. The court

Hampshire with both parents.” The trial court agreed. and recommended that it be denied and “that the children remain in New report. In her final report, the GAL analyzed the proposed relocation request testimony from the parties and witnesses and considered the GAL’s final set forth in RSA 461-A:12. To decide these issues, the trial court heard (Supp. 2009) and RSA 461-A:6 (Supp. 2009) or the burden-shifting standard controls over the general statute, RSA 461-A:4. Favazza v. Braley p. 4 that two statutes conflict, the more specific statute, here RSA 461-A:12, decline to read in such a limitation. It is a well settled rule that to the extent to relocations proposed after a final divorce decree has been entered, and we RSA 461-A:12, I, II. Nothing in RSA 461-A:12 purports to limit its applicability

which the child resides at least 150 days a year. II. This section shall apply to the relocation of any residence in

the child’s current school district. residence being closer to the other parent or to any location within This section shall not apply if the relocation results in the between the parties does not expressly govern the relocation issue. parental rights and responsibilities, or other enforceable agreement I. This section shall apply if the existing parenting plan, order on

best interests of the child. RSA 461-A:12, VI. RSA 461-A:12 states: opposing party then has the burden of proving that the relocation is not in the purpose. RSA 461-A:12, V. If the petitioning parent meets this burden, the that the relocation is for a legitimate purpose and is reasonable in light of that child. Under this test, the parent petitioning for relocation must demonstrate shifting test, for a court to apply if a parent seeks to relocate the residence of a RSA 461-A:12, V-VI, lays out a two-part test, known as the burden-

461-A:12, however, does. A:6, does not specifically address the relocation of a residence of a child. RSA other matters. RSA 461-A:4, II. RSA 461-A:4, in conjunction with RSA 461children, “[p]arenting schedule,” as well as the “[r]elocation of parents” among “[d]ecision-making responsibility and residential responsibility” for the RSA 461-A:4, II states that a parenting plan may include provisions relative to as provided under RSA 461-A:6 and the safety of the parties.” RSA 461-A:4, I. under this section, the court shall consider only the best interests of the child rights and responsibilities. It directs that “[i]n developing a parenting plan RSA 461-A:4 governs parenting plans and the determination of parental

not see fit to include. Id. neither consider what the legislature might have said nor add words that it did modification. Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 (2005). We will language of a statute is clear on its face, its meaning is not subject to we ascribe the plain and ordinary meanings to the words used. Id. When the a whole. Id. We first examine the language of the statute, and, where possible, intent of the legislature as expressed in the words of the statute considered as Kenison v. Dubois, 152 N.H. 448, 451 (2005). We are the final arbiter of the interpretation of a statute is a question of law, which we review de novo. The wife’s argument requires us to construe the pertinent statutes. The in light of that purpose. RSA 461-A:12, V. Once the parent has met this prima p. 5 of the evidence, that the relocation is for a legitimate purpose and is reasonable seeking to relocate has the initial burden of demonstrating, by a preponderance was not in the children’s best interests. In reaching this conclusion, the trial determine whether relocation is warranted. Under RSA 461-A:12, the parent As previously stated, RSA 461-A:12 provides the analytical framework to submissions, found that the father had established that a relocation to Florida testimony from witnesses, and listening to the parties and reading their written Here, the trial court, after reviewing the GAL’s final report, hearing

Whether the wife met her prima

Hampshire or Florida. have the same quality of parenting time whether the children live in New children. She asserts there would be no negative effect; the husband would omitted). negatively affect the husband’s relationship and parenting time with the made.” In the Matter of Lockaby & Smith, 148 N.H. 462, 465 (2002) (quotation factors, the trial court placed too much emphasis on how the relocation would establishes an objective basis sufficient to sustain the discretionary judgment to move from New Hampshire to Florida after five years. By ignoring these discretion standard). “This means that we review only whether the record the children in Florida than in New Hampshire and that the parties had agreed v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of The wife further asserts that she would be able to provide a better lifestyle for exercise of discretion standard. See Tomasko, 145 N.H. at 172; see also State hotel legacy, and attend monthly scheduled parenting time with their father. interests. We review the trial court’s analysis under our unsustainable the ability of the children to attend private school, participate in their family’s met his burden of showing the relocation was not in the children’s best opportunities” available to the children in Florida. These opportunities include appeal concerns only whether the trial court properly concluded that the father proper weight to evidence and testimony proffered by [her] relative to the facie burden is not at issue here. This RSA 461-A:12. Specifically, she contends that the trial court “failed to give discretion in denying her request to relocate to Florida with the children under interests. RSA 461-A:12, VI. The wife next argues that the trial court unsustainably exercised its preponderance of the evidence, that relocating is not in the child’s best facie burden, the burden shifts to the other parent to prove, by a

461-A:12 does. A:4, II(f). It does not provide any detail as to relocation of the children as RSA statute, lists as one possible provision the “[r]elocation of parents.” RSA 461- p. 6 Tomasko

the parties’ minor children if the [wife were] to relocate to Florida.” overcome the negative impact to the quality of the [husband’s] relationship with court found that the “quality of life argument raised by the [wife] does not and having her family support is in her children’s best interest.” But the trial get a job with the same benefits . . . and she feels that being with her family she is offered a job that she could not obtain in New Hampshire. She could not hearing, “I fully understand. Your client wants to relocate to Florida because any extended family relations. school in Florida. The trial court addressed this argument, stating at the noncustodial parents; and (7) the effect that the move may have on lucrative career with family support and the children could attend private emotional, and educational benefits of the move. She would have a flexible The wife asserts that these factors are far outweighed by the economic,

continued or exacerbated hostility between the custodial and

suitable visitation arrangements; (6) any negative impact from relationship between the noncustodial parent and child through

schools and the community.” court noted that the children are “well acclimated to the Derry area, the local communicate, which they have been unable to do so to date.” Finally, the not be able to realistically afford, as well as requiring the parties to effectively significant air travel, which involves a cost factor that the parties may or may chef. The court also worried that the Florida parenting plan “would require the husband “will not be able to take advantage of given[] his employment” as a weekends, major holidays and the summer, a time period the court noted that proposed Florida plan, the husband’s contact would be limited to three-day day contact with the parties’ minor children will be eliminated.” Under the court found that this relationship would suffer because the husband’s “day to educationally by the move; (5) the feasibility of preserving the of the relationship of the husband, “an involved father,” with his children. The and child’s life may be enhanced economically, emotionally, and The trial court focused upon how the relocation would affect the quality noncustodial parent; (4) the degree to which the custodial parent’s quantity and quality of the child’s future contact with the

and noncustodial parents; (3) the impact of the move on the, 145 N.H. at 172. quality of the relationships between the child and the custodial (1) each parent’s reasons for seeking or opposing the move; (2) the

include: court carefully analyzed each of the factors listed in p. 6 Tomasko. These factors children safe when you have to utilize [it]. p. 7 so many people have to, and you do the best you can to keep your I think of [third-party care] as . . . a necessary evil, and you know,

In the Matter of Choy & Choy not, carry any greater presumptive weight than the other evidence in a case.” influenced her report. “[T]he recommendations of a GAL do not, and should the GAL’s support of third-party care and working mothers unacceptably [i]nterfered with her [r]ecommendations.” Specifically, the wife contends that GAL’s report and testimony because the GAL’s “[p]ersonal ‘[p]hilosophy’ difference of opinion as to third-party care, stating: The wife also asserts that the trial court should not have relied upon the relying upon the GAL’s report. At the hearing, the GAL acknowledged her the trial court did not commit an unsustainable exercise of discretion by of both parties and their witnesses, and the submitted documents. Further, did not rely solely upon the GAL’s report. The court considered the testimony

with the children. proposed visitation schedule would greatly limit the father’s parenting time We are unpersuaded by the wife’s attempts to liken this case to Zaleski v. great distance, the parties have had difficulty communicating, and the children.” Id. In comparison, here the wife has proposed an interstate move of curtail the visitation rights of the father or deprive him of regular access to the well, the court concluded that the intrastate relocation “will not . . . effectively had proposed a liberal visitation schedule and the parties had communicated “an on-going family concern.” Zaleski, 513 N.Y.S.2d at 786. Because the wife in order for her new husband to pursue a unique employment opportunity in mother’s petition to relocate intrastate from Long Island to Syracuse, New York, 1987). In Zaleski, an appellate court upheld the trial court’s grant of a Zaleski, 513 N.Y.S.2d 784 (App. Div.), appeal denied 512 N.E. 2d 552 (N.Y.

eliminated.” She concluded that the boys “will suffer a loss.” The reality is that the ability to have day to day contact with the boys will be relationship, . . . it will not be the same type of relationship, which exists now. Florida parenting plan would allow the husband and children “to maintain a access to their dad” regularly. The GAL noted in her report that while the GAL opined that she believed it was important for the children “to have . . . his work schedule and relies upon a third party for day care. Nevertheless, the are times when the husband could not exercise his parenting time because of with their homework, and attends school activities. The GAL noted that there involved in extra-curricular activities as an assistant coach, helps the children at his parents’ house on Sundays to relax, play games, and swim. He is husband was an involved, caring father. His family gathers together regularly The record supports the trial court’s findings. There is evidence that the p. 8 Affirmed in part; vacated in part;

concern about how the trial court applied this statute to the facts of this case. to relocate with the children to Florida, I write separately to express my period. (Supp. 2009) governs the petition of the respondent, Mary Ellen Curotto (wife), trial court unsustainably exercised its discretion in imposing a forty-eight hour because of our deferential standard of review, and agree that RSA 461-A:12 more acceptable. Based upon our review of the record, we cannot say that the DALIANIS, J., concurring specially. While I concur in the court’s opinion care for the children. She proposes that a six-hour or shorter time period is for greater than forty-eight hours before the other parent is offered the right to discretion in requiring the children to be in the care of a third-party caretaker Finally, the wife asserts that the trial court unsustainably exercised its

DALIANIS, J.