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2009-556, In the Matter of Patricia Martin and Michael Martin
Daniel C. Proctor
Opinion Issued: August 19, 2010 Argued: June 10, 2010
IN THE MATTER OF PATRICIA MARTIN AND MICHAEL MARTIN
No. 2009-556
Concord Family Division
father had been having an affair. June 2007. Shortly after their son was born, the mother discovered that the and were married in 2004. They are the parents of a son, who was born in The record supports the following relevant facts. The parties met in 2002 of the Concord Family Division (Gordon DALIANIS, J. The petitioner, Patricia Martin (mother), appeals an order
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Puckhaber Law Offices, PLLC
reconsider. We affirm. Division (Carbon, J.) approving the marital master’s denial of her motion to Marital Master (Rein, M.). The mother also appeals an order of the Family divorce from the respondent, Michael Martin (father), recommended by the
, J.) approving the final decree of
THE SUPREME COURT OF NEW HAMPSHIRE
brief and orally), for the respondent.
, of Concord (Diane M. Puckhaber on the
, of Concord, by brief and orally, for the petitioner.
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 paragraph V is met, the burden shifts to the other parent to prove, by a The statute further provides that “[i]f the burden of proof established in
I. Relocation purpose.
(b) The proposed location is reasonable in light of that
relocation and the future parenting disagreements provision. (a) The relocation is for a legitimate purpose; and changed. Accordingly, we address only the mother’s arguments concerning burden of demonstrating, by a preponderance of the evidence, that: parenting schedule issue is now moot because the father’s work schedule has disagreements. At oral argument, the mother conceded that the rotating before instituting further legal proceedings with respect to future parenting rotating parenting schedule; and (3) mandating neutral third party assistance the trial court erred by: (1) denying her request to relocate; (2) instituting the provision, which the family division denied. On appeal, the mother argues that relevant to relocation, the parenting schedule and the future disagreements The mother moved for reconsideration of rulings in the final decree
The parent seeking permission to relocate bears the initial
court to decide the issue.
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461-A:12, V provides, in relevant part that: A:12 (Supp. 2009), the statute that the parties agree governs this issue. RSA permission to relocate because it incorrectly interpreted and applied RSA 461- The mother argues that the trial court erred by denying her request for
disagreement after seeking third party assistance will they ask the
assist them. Only if the parents are unable to work out the disagreement, they shall seek the help of a neutral third party to
the child(ren). If the parents are unable to work out the issues, the parents shall try to work it out in the best interest of In the future, if the parents have a disagreement about parenting
included a provision regarding future parenting disagreements, stating: schedule to coincide with the father’s rotating work schedule. In addition, it residence in Derry.” The parenting plan established a rotating parenting to a location farther away from [the father]’s residence than is her current permitted to remove [the son]’s residence from the State of New Hampshire and in the parenting plan attached to the final decree that the mother “is not Island where her parents live. The family division denied her request, stating proceedings, the mother sought permission to relocate with the son to Rhode The mother filed for divorce in September 2007. As part of the divorce fear [for] her safety.” These findings are supported by evidence, including the to [the mother], or that he has conducted himself in a way as to cause her to [him].” It also found that there was “no evidence that [the father] is any threat move is to avoid ongoing interaction with the father” and to “get away from The trial court found that the “primary reason [the mother] wants to
for further indication of legislative intent. In the Matter of LaRue & Bedard 3 argues that the statute is ambiguous. We, therefore, need not look beyond it location, Rhode Island, is reasonable in light of that purpose. Neither party her request to relocate is for a legitimate purpose and that the proposed case, the mother must demonstrate, by a preponderance of the evidence, that Pursuant to its plain meaning, RSA 461-A:12, V requires that in this
interpret RSA 461-A:12. We review a trial court’s statutory interpretation de 156 N.H. at 380.
,
isolation. In the Matter of Carr & Edmunds, 156 N.H. at 504. interpret a statute in the context of the overall statutory scheme and not in of legislative intent. In the Matter of LaRue & Bedard, 156 N.H. at 380. We plain and unambiguous, then we need not look beyond it for further indication language that the legislature did not see fit to include. Id Resolving the issue in this appeal, however, also requires that we concern is the best interest of the child. In the Matter of Mannion & Mannion. If the language is written and will not consider what the legislature might have said or add When determining matters of child custody, a trial court’s overriding Edmonds, 156 N.H. at 504. We interpret legislative intent from the statute as the plain and ordinary meaning to the words used. In the Matter of Carr & 156 N.H. 378, 380 (2007). In examining the language of the statute, we ascribe looking to the language of the statute itself. In the Matter of LaRue & Bedard, Carr & Edmunds, 156 N.H. 498, 503-04 (2007). We begin our analysis by expressed in the words of the statute considered as a whole. In the Matter of of statutory interpretation, we are the final arbiters of the legislative intent as novo. See In the Matter of Choy & Choy, 154 N.H. 707, 711 (2007). In matters
evidence. Id. findings of the trial court are binding upon this court if supported by the of witnesses, as well as the character and temperament of the parents, and the case depends to a large extent upon the firsthand assessment of the credibility discretionary judgment. Id. The trial court’s determination in any custody determine whether it contains an objective basis to sustain the trial court’s exercise of discretion. Id. This means that we review the record only to will not overturn its determination unless there has been an unsustainable 155 N.H. 52, 55 (2007). In doing so, the trial court has wide discretion, and we
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interest of the child.” RSA 461-A:12, VI. preponderance of the evidence, that the proposed relocation is not in the best concluding that wanting to “get away” is not him. The mother does not argue that the trial court erred as a matter of law in to move is to avoid ongoing interaction with the father and to get away from As noted above, the trial court found that the primary reason she wants
II. Future Parenting Disagreements
Rhode Island is a reasonable location, see relocation for a legitimate purpose. Therefore, we need not consider whether constitutional rights to due process and access to the courts. See that the mother failed to carry her burden of demonstrating that she seeks court in the event of future disagreements about parenting issues violates her past. In light of the trial court’s findings, we agree with its legal conclusion parents “shall seek the help of a neutral third party” before petitioning the indicate that she has not had a strong relationship with her parents in the The mother argues that the parenting plan provision stating that the the mother’s counseling records, submitted in the appendix to her brief, comparable job prospects in Rhode Island. With respect to emotional support, noted that she currently has full time employment in New Hampshire but no would not result in an improvement to her financial status. Specifically, it 4 and emotional support from her family, the trial court found that the relocation While the mother testified that she sought to relocate to receive financial word “shall” bars the parties from accessing the courts and restricts her rights pt. I, art. 14; U.S. CONST. amend. XIV. She contends that the compulsory
N.H. CONST.
A:12, VI. that relocating to Rhode Island is not in the son’s best interest, see RSA 461consider whether the father has proved, by a preponderance of the evidence, interpretation of “legitimate” is correct, her argument still fails. RSA 461-A:12, V(b), nor need we under the statute. Assuming, without deciding, that the mother’s support from her Rhode Island family constitute subjectively legitimate reasons reasonable location. She contends that her needs for emotional and financial that the court must then consider whether Rhode Island is an objectively she must set forth a subjectively legitimate reason for wanting to relocate, and address her argument. The mother argues that the statutory term “legitimate” means only that upon the facts of this case, she cannot prevail, and we need not further we accept the mother’s definition of “legitimate” as a subjective determination,
a legitimate reason. Thus, even if
at 55. accordingly, binding upon us. In the Matter of Mannion & Mannion, 155 N.H. mother’s own testimony and the report of the guardian ad litem, and are, Affirmed
State Constitution with regard to her claims of error. See The Federal Constitution offers the mother no greater protection than the
BRODERICK, C.J.
, and DUGGAN, HICKS and CONBOY, JJ., concurred.
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same result under the Federal Constitution. malpractice claim is not a denial of court access). Accordingly, we reach the provision to cause undue delay is not supported by its plain meaning. Cf statute permitting access to courts only after mediation of a medical neutral third party. Thus, the mother’s concern that one parent could use this Cross Hospital, 591 F.2d 1164, 1174 n.16 (5th Cir. 1979) (noting that a Florida that party demonstrates that the parents first sought the assistance of a id.; Woods v. Holy provided assistance. It permits either party to seek judicial relief, as long as particular nature or duration or even that the third party must have actually requirement that the assistance of a neutral third party must be of any rights as a parent.” neither infringes upon nor denies that right. It imposes no specific relief, we need not address her argument that it implicates “her fundamental bars judicial relief for future parenting disagreements. The provision at issue the provision has no deleterious effect upon the mother’s access to judicial We cannot accept the mother’s contention that the provision at issue constitutional violation in a given case.”). Similarly, because we conclude that that the lapse of time inherent in extended litigation could rise to a Opinion of the Justices, 137 N.H. at 269 (“[W]e do not rule out the possibility
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right to the redress of their actionable injuries.” Gould v. Concord Hospital Due process under Part I, Article 14 “provides that all citizens have a
Opinion of the Justices (Limitation of Civil Actions), 137 N.H. 260, 269 (1993). the constitutional guaranty that justice will be administered promptly.” regulations regarding the commencement of suits do not automatically violate 661, 665 (1979), appeal dismissed, 445 U.S. 921 (1980). “Reasonable right of access to the courts.” Estate of Cargill v. City of Rochester, 119 N.H. 126 N.H. 405, 409 (1985). “The article does not prohibit all impairments of the
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guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983). address her claims under the State Constitution, and cite federal opinions for access to the courts, before being sent to a ‘third party process.’” We first requires that she “be provided with the opportunity of an initial hearing and to seek judicial relief for her grievances. She further argues that due process