In The Matter of Alexandra Rourke and Sean Rourke

In this case, mother did not file her motion for reconsideration within ten days of the underlying decision from which she sought reconsideration. Pursuant to Family Division Rule 1.26(F), mother’s Motion was untimely and thus it was filed simultaneously with a Motion for Late Entry. (infra., Addendum at 16). Father acknowledges that mother’s Motion to Reconsider was not timely filed, which means mother was required to file her Notice of Appeal to this Court within 30 days of the Family Court’s decision on the merits. New Hampshire Supreme Court Rule 3 – Definition of Decision on the Merits. This Court has consistently held that an untimely filed post-trial motion does not stay the running of the appeal period. Germain v. Germain, 137 N.H. 82 (1993).

Although the Family Court granted Mother’s Motion for Late Entry, that order was not issued until June 2, 2022, one day after mother filed her Notice of Appeal in this Court in compliance with the 30 day appeal period. (See infra at 15). Father erroneously asks this Court to dismiss mother’s appeal because she did not seek a remand to the Family Court upon filing her Notice of Appeal with this Court. (Brief, p. 11). In support of that argument Father exclusively relies upon foreign case law. (Reply Brief, p.9). Father also argues the Family Court lacked authority to rule upon the Motion for Late Entry and the Motion for Reconsideration after mother filed her Notice of Appeal. Mother’s appeal, did not divest the Family Court of its authority to rule upon the Motion for Late Entry and the Motion for Reconsideration because her appeal was not automatically accepted. Mother filed a Notice of Discretionary Appeal as the issues on appeal post-dated the parties divorce. New Hampshire Supreme Court Rule 3 – Mandatory appeal. This Court did not accept mother’s discretionary appeal until July 21, 2022. (See infra at 18). By the time this Court accepted mother’s appeal on July 21, 2022, the Family Court had granted the Motion for Late Entry and denied the Motion for Reconsideration specifically addressing the lack of notice for which constitutional review is now sought. (Opening Brief Add. 49-50, Order dated June 17, 2022). The Family Court’s June 17, 2022 order also reaffirmed its decision on the merits. (Opening Brief Addendum at 49-50).

This case’s procedural history confirms that mother’s objection to the Trial Court’s modification of the parties’ parenting plan was preserved at trial and preserved in her Motion to Reconsider, which was decided by the Family Court before this Court accepted mother’s discretionary appeal. Moreover, the only new issue which mother was required to raise and preserve by way of reconsideration was her assertion the Family Court’s decision on the merits relied upon grounds not pled. See New Hampshire Dept. of Corrections v. Butland, 147 N.H. 676 (2002). Even if mother had not filed a Motion to Reconsider, raising the lack of meaningful notice, she would have been entitled to seek review of the Court’s decision on its merits.

In her Discretionary Notice of Appeal, mother specifically advised the Court of the underlying procedural history, including the fact that there was a pending Motion to Reconsider. (See Notice of Appeal, p.5). Had mother waited for a final ruling on her Motion for Reconsideration which was issued on June 17, 2022, her Notice of Appeal would have been untimely had the Family Court not granted her Motion for Late Entry. The foreign case law cited by father does not prohibit this Court from addressing the merits of the issues appealed, as they were presented to the Trial Court and ruled upon by the Trial Court prior to this Court’s acceptance of the discretionary appeal. Father’s reliance upon Rautenberg v. Munis, 107 N.H. 446 (1966) does not support his request for dismissal. In Rautenberg, this Court noted that an appeal to this Court does not stay all further proceedings in the Trial Court. This Court further recognized that it is vested with exclusive power and jurisdiction over the proceedings on appeal, only after the Notice of Appeal has been perfected. Because this Notice of Appeal involved a discretionary appeal, it was not perfected, vesting this Court with exclusive power and jurisdiction, until the Notice of Appeal was accepted which occurred on June 21, 2022, after the Family Court had issued its final decision on June 17, 2022. Mother’s appeal issues were preserved and should not be dismissed. II. Mother preserved her due process challenge when she advised the Trial Court she was not provided meaningful notice of the grounds upon which it relied when issuing its decision.

In her Motion for Reconsideration, mother asked the Trial Court to reconsider its decision on the merits as RSA 461-A:11 specifically requires that the moving party seeking modification of a parenting plan both plead and prove one of the statutory circumstances in the statute justifying modification. (Add. 54-56). Mother also sought reconsideration because modification of parenting plan provisions not pled precluded mother from a meaningful opportunity to be heard with resultant prejudice. (Add. 56-59). Mother’s motion specifically alleged the absence of meaningful notice or an opportunity to be heard denied her “due process.” (Add. 56). Finally, mother’s motion included an offer of proof with respect to evidence she would have introduced had she known the Court intended to take action on issues not pled by the parties. (Add. 57-58). Mother’s reference to the absence of notice with resultant prejudice because she did not know to present specific evidence to address unpled grounds preserved her argument of a due process violation. “[N]otice and an opportunity to be heard are basic essentials of a judicial proceeding” (quotation omitted)); cf. Boddie v. Connecticut, 401 U.S. 371, 376–79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (given the fundamental importance of marriage and divorce, due process considerations regarding notice and the opportunity to be heard are implicated).

Understandably, mother’s arguments regarding the absence of notice as a due process violation, are more fully developed in her Brief, but that does not mean the issue was not raised and preserved below. Moreover, as this Court recognized In re: Kempton, 167 N.H. 75 (2015), even if a party fails to demonstrate that they have preserved a constitutional claim under the State Constitution, this Court will review it under the Federal Constitution.

Father’s reference to In re: Hampers, 154 N.H. 275, 287 is misplaced, as this Court found Dr. Hampers claim that his constitutional rights were violated by the Trial Court’s Order that he make an advance payment pre-appeal were not raised in any respect at the Court below. Unlike Hampers, here mother specifically alleged a due process violation and she outlined in some detail the prejudice caused by the Court’s failure to provide notice of the grounds upon which it would ultimately rule. In addition to the constitutional challenge, mother’s notice arguments also survive under RSA 461-A:11. In Duclos v. Duclos, 134 N.H. 42 (1991) this Court reversed the Trial Court’s decision based upon a lack of meaningful notice to the Petitioner in violation of Family Court Rules without reaching the constitutional grounds. Similarly in this case, the Court could reverse the Trial Court’s decision to modify the parties’ Parenting Plan based upon grounds not pled by either side based solely upon statutory grounds. Accord, Douglas v. Douglas, 143 N.H. 419 (1999). Finally, father disputes the sufficiency of mother’s offer of proof as to her prejudice due to the absence of notice as to the scope of the Court’s review and modification of the parties parenting plan. Father references McIntire v. Woodall, 140 N.H. 228 (1995) in support of his argument. In Woodall, however, this Court found the plaintiff failed to establish prejudice based upon evidence that was introduced at trial without objection. This Court noted any alleged prejudice “could have been cured by a timely objection, acceptance of the Trial Court’s offer or a request for continuance.” 140 N.H. at 230. Unlike the facts in Woodall, the Court’s decision to modify the parties’ Parenting Plan based upon grounds not raised by either party occurred after the evidentiary hearing had concluded. Unlike the plaintiff in Woodall, mother had no opportunity to introduce new evidence or request a continuance. Instead, her only remedy was to file a motion to reconsider with an offer of proof regarding the evidence that might have introduced had she known in advance what issues the Court would decide as is required for meaningful notice, a remedy she pursued. Father’s reliance upon State v. Philibotte, 123 N.H. 240 (1983) and State v. Knickerbocker, 152 N.H. 467 (2005) is inapposite to this case, as those cases involved a review of the prejudice required to establish pre-indictment delay, not prejudice following the absence of meaningful notice and an opportunity to be heard in a proceeding to modify a parenting plan under RSA 461-A:11.

Based upon the arguments asserted in the Opening brief, as well as this Reply, mother asks this Court to reverse the Family Court’s modification of the parties’ Parenting Plan as the Court’s decision relied upon grounds that were not pled and not properly noticed.

I hereby certify that a copy of the foregoing Brief was this day forwarded to counsel of record, through the Court’s electronic filing system.