In The Matter of Alexandra Rourke and Sean Rourke

area and the [father] is living primarily in Costa Rica.” Id. at 91. When the mother visited Costa Rica, the parties would develop a parenting schedule for that visit, and, if unable to do so, the father would be entitled to see the children for three non- consecutive weeks in Costa Rica. Id. at 92. When the father visited New Hampshire, he would be entitled to “at least one weeknight dinner/after school visit per week, and at least two weekends per month” provided he had suitable accommodations. Id. at 91. This addendum was approved on September 13, 2019 [hereinafter, 2019 parenting plan and addendum will be collectively referred to as the 2019 parenting plan]. Id.

In April of 2021, the father filed a petition to modify the 2019 parenting plan. Id, at 68-71. In his petition, the father asserted that, after the above plan was negotiated, he decided not to relocate to Costa Rica, but to instead remain in the Seacoast area. Id. at 69-70. He argued that, as the 2019 parenting plan was premised upon the parties living in in different countries, and as that situation no longer exists, modification is appropriate. See Id. The father cited RSA 461-A:11, I{d) and I{g) as the basis to modify the plan. Id. at 70.

Following a hearing on March 24, 2022, the Family Division issued a modified final parenting plan and narrative order on May 3, 2022 (clerk's notice May 4, 2022). Id. at 28. In its narrative decision, the Family Division ruled that the 2019 parenting plan was premised upon the father living extensively in Costa Rica and, as this relocation had not come to pass, RSA 461-A:11, I(g) was an appropriate basis for modification. See ld. at 30-1. After considering the parties’ testimony, the Family Division ruled that the father had satisfied his burden of seeking a modification. Id. at 35. First, the 2019 parenting

plan did not contemplate a situation where the parties would be living in close proximity

to each other on the New Hampshire/Maine Seacoast. Id. Second, modification was in the children’s best interest as the 2019 parenting plan created an “imbalance” between the parties in that the mother could impose limits on the father’s time and thereby spark conflict. Id. at 35-6. After weighing both parties’ proposed plans, the Court adopted a new routine schedule which would commence July of 2022. Id. at 39.

The mother filed an untimely motion to reconsider, Add. at 51-60, and a motion for late entry on or about May 17 or May 19, 2022. Brief at 24-25. The mother did not, however, include the motion for late entry in her appeal or explain the reasons for the late filing. The Family Division allowed the motion for late entry on May 31, 2022, but did not issue its decision until June 2, 2022. Brief at 24-25. One day prior, however, on June 1, 2022, the mother filed a notice of appeal with this Court. The mother's motion to reconsider was denied by the Family Division on June 10, 2022 (clerk’s notice June 17, 2022). Add. at 49-50.

However, because (a) the mother's motion to reconsider was untimely, and (b) she filed the notice of appeal! before the Family Division could rule on the motion to reconsider, she did not preserve these issues.

Moreover, the record supports a finding that the modifications were in the best interests of the children.

Vv. ARGUMENT

This Court will not decide an issue that was not preserved for appellate review.

See State v. MacAdams, 134 N.H. 445, 479 (1991). “This principle applies to legal

issues that arise after trial as a result of the court’s order.” LaMontagne Builders,

Inc. v. Bowman Brook Purchase Group, 150 N.H. 270, 274 (2003) (citation omitted). “To satisfy this preservation requirement, any issues which could not have been presented to the trial court prior to its decision must be presented to it in a motion for

reconsideration.” Vention Medical Advanced Components, Inc. v. Pappas, 171 N.H.

13, 27 (2018); see also N.H. Fam. Div. R. 1.26(F) (“to preserve issues for an appeal to the Supreme Court, an appellant must have given the Court the opportunity to consider such issues; thus, to the extent that the Court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal’).

A motion to reconsider must be filed with ten (10) days of the notice of the decision. N.H. Fam. Div. R. 1.26(F). If the trial court does not rule upon the motion to reconsider prior to the filing of the notice of appeal, the issues raised in the motion

are not preserved. See e.g. Elam v. South Carolina Dept. of Trans., 602 S.E.2d

772, 779-80 (S.C. 2004) (“issues and arguments are preserved for appellate review

only when they are raised to and ruled on by the lower court”) (emphasis added);

Patrick v. Daimler Chrysler Corp., 2006 WL 7353443 at *1 (S.C.) (unreported decision) (“It is axiomatic that an issue must be raised to and ruled upon by the trial

court in order to be preserved for appellate review”); State in Interest of CC, 301

P.3d. 1000, 1005 (Utah 2013) (“the issue must be presented to the trial court in such

a way that the trial court has an opportunity to rule on that issue”); Mitchell v. State, the issue must be timely raised and specifically presented to the trial court and an

adverse ruling obtained’).

Most important, the filing of a timely notice of appeal with the Supreme Court

vests exclusive jurisdiction with that Court over the issues raised in that appeal. See

Rautenberg v. Munis, 107 N.H. 446, 447 (1966) (“as a general rule the perfection of an appeal divests the Trial Court of jurisdiction of the cause and transfers it to the appellate court”). Once an appeal is filed, “the authority and control of the lower court with reference [to the issues raised in the appeal is] suspended.” Id. (citation omitted). In Rautenberg, for example, the Supreme Court held that once an appeal was taken, the trial court, absent a remand, could not act on the pending motion for new trial. Id. at 448.

Applying these principles to the facts at bar show that none of the issues raised in the motion to reconsider were preserved. Specifically, it is undisputed that the notice of appeal was filed before the Family Division ruled on the motion to reconsider. As the motion to reconsider embraces the entire subject matter of this appeal, the Family Division, pursuant to Rautenberg, lost the ability to rule upon same. Its post appeal order, therefore, was without jurisdiction and, as such, is a

nullity. See Sexual Minorities Uganda v. Lively, 899 F.3d 24, 31 (18 Cir. 2018) ("we

agree that a decision on the merits by a court lacking subject-matter jurisdiction is an

utter nullity, without binding effect”).

Ultimately, it is the responsibility of the appealing party to prepare an adequate

record for this Court to review. See State v. Adams, 169 N.H. 293, 299 (2016).

When the mother filed her notice of appeal, the motion to reconsider was still pending before the Family Division. She should have immediately asked this Court to remand the case back to the Family Division so that it could consider the motion and issue a jurisdictionally proper decision. See N.H. Supreme Ct. R. 7-A(2). Having failed to do so, she has no valid decision on her motion to reconsider upon which to base her appeal, and thus no properly preserved issues for this Court to

review.

Assuming, arguendo, any of the issues in this appeal were preserved through the act of filing an untimely motion to reconsider, this Court should not address the constitutional arguments as they were not adequately developed before the Family Division. The “mere reference to due process’ at a hearing or in a motion is

insufficient to preserve a state constitutional claim. See In re: Kempton, 167 N.H.

785, 793 (2015). Likewise, a passing mention in a motion is likewise insufficient to

preserve a constitutional claim. See e.g. State v. Kuchman, 168 N.H. 779, 794

(2016) (mere reference to “right to remain silent” insufficient to preserve

constitutional claim); In re: Hampers, 154 N.H. 275, 291 (2006) (reference in motion

to “due process” without development is insufficient to preserve a constitutional claim).

Here, the mother devotes a considerable amount of her brief arguing the Family Division’s order violated Part I, Article 15 of the New Hampshire Constitution. See Appellant's Brief at 14-17. However, the mother did not, in her motion to reconsider, make any developed constitutional argument, did not specifically cite any portion of

the state or federal constitutions, and did not discuss any caselaw relevant to the issue. Indeed, the phrase “due process” appears once in a two-line argument buried

on page 6 of her motion to reconsider. Add. at 56. As such, she has not preserved

this constitutional claim and no consideration of same should be given by this Court. Further, to sustain a due process claim based upon lack of notice, the mother

must show she sustained actual prejudice by the lack of notice. See Melntire v. Woodall, 140 N.H. 228, 230 (1995) (“assuming, arguendo, that the plaintiff is correct regarding the notice, he will not prevail on his due process claim absent

a showing of actual prejudice”). Here, neither the motion to reconsider (assuming it is properly before this Court), nor the mother’s brief demonstrate how she was specifically prejudiced by the alleged due process violation. For example, instead of showing the specific evidence she could have introduced to refute a modification claim under “unpled provisions of RSA 461-A:11, ” she only hypothesizes that she would have testified about her belief that the father’s employment played no role in the formation of the 2019 parenting plan?. Brief of Appellant at 13-14. She provides no further detail as to what this testimony would have been and, more important, whether it would have been admissible or impacted the outcome. This lack of detail is fatal to her argument. See State v. Philibotte, 123 N.H. 240, 244 (1983) (actual prejudice not shown by speculation); see also State v. Knickerbocker, 152 N.H. 467, 470 (2005) (actual prejudice requires party to show “with specificity” what evidence would have been introduced). For these reasons, therefore, the Court should not consider any of the mother’s constitutional arguments in her appeal.

The interpretation of a court order is done in the same manner as the

interpretation of a contract. See In re: Felt Mfg. Co., Inc., 402 B.R. 502, 511 (Bankr.

D.N.H. 2009). “When interpreting a written agreement, we give the language used. .. its reasonable meaning, considering the circumstances and the context in which the agreement was negotiated, and reading the document as a whole.” In re: Taber- McCarthy, 160 N.H. 112, 115 (2010).

The premise of the mother’s first argument on appeal is the Family Division modified the parenting plan based upon two unpled sections of RSA 461-A:11, |. See Appellant’s Brief at 12. A careful reading of the order shows otherwise. Specifically, the Family Division writes on page 7 of its narrative order, that “based upon the testimony the Court finds sufficient evidence to meet [the father’s burden]

under RSA 461-A:11, I(g) to modify the Parenting Plan, at a minimum.” Add. at 35

(emphasis added). The Family Division further wrote “the Court does agree with [the father] that section 461-A:11, I(g) of the modification statute does applies [sic]." Id. at 36. Thus, it is clear the Family Division modified the plan based upon the father’s well pled claim under section I(g).

While it is true that the Family Division mentioned sections I(b) and I(h) in its order, it did not find these sections formed an independent basis for modification. See Add. at 35-36. Reading the order as a whole, it is clear these sections were only cited to support the Family Division’s conclusion that modification served the children’s best interest, which is an element of RSA 461-A:11, I{g). For example, the Family Division wrote “the lack of detail [in the current plan] leaves the [mother]

subject to RSA 461-A:11, l(b) challenges” because it does not define the father’s time when he is in the Seacoast area. Id. at 35. Indeed, the Family Division found,

the mother “recognizes this in part when she argues that a more detailed plan will

better serve the children.” Id. A correct reading of this language shows that the

Family Division was not modifying the plan pursuant to section l(b), but as a guard

against such claims being made in the future due to a poorly written plan.

As to section |(h), the Family Division wrote “an argument could be made that the Respondent father was going to be working in Costa Rica primarily, but is now working in the Seacoast area.” Add. at 36 (emphasis added). The Family Division specifically acknowledged that this ground was not pled, but “facts were elicited to cause the Court to consider its application.” Id. The Family Division concluded by stating “the Court also notes it has already found above that a change in the current Parenting Plan is in the best interest of the children, in part because the [father] is now permanently working and residing in the Seacoast area.” Again, this language shows section I(h) was cited to support the Family Division’s conclusion that the best interest element of section I{g) was met and not as an independent basis to modify the parenting plan.

The mother argues the Family Division should not have modified the parenting plan under section I(g) because, when the plan was drafted, the father was living in New Hampshire and did not relocate to Costa Rica. Appellant’s Brief at 18-19. Instead, she claims the father had changed his mind about the relocation at or near

the time the document was negotiated. See Id. The mother concludes that, as the 2019 parenting plan talks about visits when the father is in the United States, and the father is now in the United States full time, modification under section I(g) is not correct. See ld. at 19.

There are a number of errors with this contention. First, as stated above, the interpretation of a stipulation or court order follows the same rules as the interpretation of a contract. The intent of the parties, as expressed in the plain

language of the document, controls the analysis. See Sommers v. Sommers, 143 N.H. 686, 692 (1999). The subjective beliefs held by the parties when negotiating a

contract are of no relevance. See Kilroe v. Troast, 117 N.H. 598, 601 (1977) (“In this

state a similar view prevails: The intent of the parties is to be judged by objective or external standards rather than by unmanifested states of mind of the parties’). Therefore, testimony as to the father’s unspoken pians vis a vis a relocation to Costa Rica at or near the time of the signing of the 2019 parenting plan are of no value in its interpretation.

Just as an unmanifested belief carries no weight in the interpretation of a written contract, statements and discussions between the parties which vary the plain

language of an agreement are equally irrelevant. See e.g. Merrimack River Sav.

Bank v. Higgins, 89 N.H. 154, 157 (1937) (“paro! evidence rule excludes evidence

tending to show an agreement or terms inconsistent with the terms of the [contract]”). In other words, absent an ambiguity in the document, the Court

confines itself to the terms of the agreement. See Lapierre v. Cabral, 122 N.H. 3014,

305 (1982) (“In the absence of an ambiguity, the plain meaning rule prohibits the

admission of parol evidence’).

Here, the mother has made no argument in her brief that the language in the 2019 parenting plan was ambiguous. Similarly, the Family Division made no finding that the terms of the document were ambiguous, although it did express concern that the unspecified language could cause disagreement. Add. at 35. Therefore, the Family Division’s analysis would be limited to the language of the 2019 parenting plan, and could not have relied upon what either party’s own interpretation of the document.

The 2019 parenting plan indisputably contemplates a situation where the parents would be living on separate countries. The addendum states “at this time, the

Petitioner is living in the NH Seacoast area and the Respondent is living primarily in

Costa Rica.” Add. at 91 (emphasis added). The addendum goes on to state that it’s the parties’ intention, under this plan “to exercise a flexible schedule based on the

Respondent's time in the Seacoast and in Costa Rica.’ Id. (emphasis added).

During the months the father is in the Seacoast area, he would have one weeknight dinner and two weekends per month “if he has lodging /living arrangements that allow for overnight visits.” Id. Absent such accommodations, he would only be allowed visits during the day. Id. The plan also states that the mother would travel to Costa Rica “somewhat frequently” and the parties would attempt to develop a schedule of parenting time when she was in the country. Id. at 92. If they could not agree, then the father would be entitled to three non- consecutive weeks to visit with the children in Costa Rica. Id. Therefore, the 2019 parenting plan not only

contemplated that the parties would be living far apart from one another, but also that the father would be primarily living in Costa Rica and a “transient” when living in New Hampshire. Add. at 35.

Given this language, the application of RSA 461-A:11, I(g) is self-evident. Section I(g) applies if the allocation of parenting time was based “in whole or in part on the travel! time between the parties’ residences at the time of the order.” As shown above, the 2019 parenting plan states the parties were living in two different countries with the father living primarily in Costa Rica. The 2019 parenting plan recognizes that reality with shortened periods of parenting time assigned to the father when he is in the United States, and longer periods of time when the children visit him in Costa Rica. It also undisputed that, as of today, the father is not living in Costa Rica and both parents now reside in the Seacoast area, Add. at 42, a situation, the Family Division found, was not contemplated by the 2019 parenting plan, Add. at 35.

With those facts established, the Family Division was then free to analyze whether modification of the plan would serve the children’s best interest. The mother, apparently recognizing the “wide discretion” that is afforded trial courts in

determining what is in the child’s best interest, see In re: Martin, 160 N.H. 645, 647

(2010), has not appealed the Family Division’s finding on that element. Therefore, the Family Division’s order should be affirmed.

Lastly, the mother argues that the Family Division erred in modifying sections of the parenting plan, again raising the specter of a due process violation. As

discussed above, the due process argument was not preserved and, preservation issues notwithstanding, the mother did not specify the actual prejudice she sustained.

In addition, the mother’s argument that the Family Division is powerless to develop its own parenting plan when faced with two competing proposals is an incorrect statement of the law. Pursuant to RSA 461-A:4, I, when parties are unable to agree on a proposed plan, “the court may develop it” by taking into account what it

finds to be the children’s best interests. See In re: Ndyaija, 173 N.H. 127, 146-7

(2020) (sua sponte modification of portion of parenting plan not in error if same was in child’s best interest).

Here, the Family Division was faced with exactly this situation, a proposal from the mother who wished to keep the 2019 parenting pian in place, and a proposal from the father who wanted the plan to change. The Family Division found that the couple’s current relationship is “strained” with the parties alleging that one becomes angry too easily, and the other alleging that they have the children “keep secrets.” Add. at 32. The Family Division also noted that the mother is extremely detail oriented while the father is “more relaxed”, and the mother’s long emails to the father could be interpreted by him as “controlling”. Id. at 33. As such, it was well within its authority to modify portions of the parenting plan, even on a sua sponte basis, if it believed the modifications served the children’s best interest.

Moreover, the mother's arguments are largely moot. As alluded to her in her brief, Appellant's Brief at 23, the mother’s untimely motion to reconsider was granted, in part, on the issue of New Years Day and birthday schedules, see Add. at

50. The Family Division also discussed how it expected the parties to resolve the summer schedule and vacation schedule, with the father encouraged to honor any camp scheduling or traditional family vacations. Id. Most important, the Family Division even offered to schedule a prompt hearing on this matter if agreements could not be reached. Id. While the order on the motion to reconsider was made without authority given the appeal, the father will abide by its terms while the appeal is pending and would, upon the resolution of this appeal, file a modified parenting plan with the Family Division to incorporate the changes set forth above.

Finally, the Family Division's order allowed the parties to make their own amendments to the court ordered parenting plan and to file those modifications within thirty (30) days of the order. Add. at 39. The mother has filed nothing in her brief that indicates that she took advantage of this opportunity, instead electing to file a late motion for reconsideration and ultimately an appeal. Given her failure to take advantage of the Family Division’s invitation to make corrections to its final plan, this Court should not address this remaining issue on appeal.

For the reasons set forth above, the respondent respectfully requests that the mother’s appeal be dismissed and the Family Division’s May 3, 2022 Order be affirmed.

The respondent respectfully requests that this matter be scheduled for 15

minutes of oral argument. Attorney Andrew Piela will conduct the oral argument on

behalf of the respondent.

| hereby certify that the total number of words in the above brief are 4506.