In The Matter of Alexandra Rourke and Sean Rourke

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of Alexandra Rourke and Sean Rourke. Good morning attorney Connor. You understand you reserved two minutes for rebuttal? I have, your Honor. Thank you. Yes, proceed. May it please the court. I'm Doreen Connor from Primmer Piper Eggleston and Kramer, and I represent Alexander Alexandra Rourke. Ms. Rourke asked this court to reverse the family court's modification of the parenting plan for two reasons. One, there was not a change in the parent's residences warranting modification under factor g and two, the court went outside the record or outside the pleadings when it referenced other statutory factors. The court further aired when it went outside the pleadings and changed other aspects of the parenting plan that neither party requested. I will take questions at any time. The New Hampshire legislature has restricted the circumstances under which the court can modify a parenting plan in RSA 4 61 A 11, and this court has said in much more that in fact a specific statutory factor must not only be identified, but it must be proven. And in this case, the court, there were two factors alleged. D which is when the parents have equal time and the court said that did not apply. And then G, which talks about the fact when there is a change in the location of the parent's residences between the time the parenting plan is established and when modification is sought. But why doesn't that apply? It doesn't apply, your honor, because in this case, the original parenting plan clearly said that both parents lived in Rhine, New Hampshire. That's at, uh, appendix 80. It also said that mom was the primary custodian and that dad would have flexible visitation at the court's request. Same judge who ultimately decided this case. Uh, there was an addendum file. The addendum dealt solely with the issue of when there was a disagreement about that flexible visitation in that addendum, um, it set forth two visitation schedules. If dad relocated to, to Costa Rica and or in New Hampshire, he never relocated to Costa Rica. We know that it's undisputed. He had a thought about doing so, but he said as soon as he was dealing with divorce, he thought, I don't wanna leave my kids. So the ki parents continued to always live close to one another so that that factor G, which is premised upon a change in their location on its facts, just simply does not apply. So why isn't this just a disagreement then about visitation? Right? Wouldn't that apply? Wouldn't you go to court to modify if parties can't agree? Well, you have to plead a particular statutory factor within the statute, and the only factor that was pled that the court could have relied upon is g this change in location which never occurred, and therefore it was improper to modify in this case. Why Do you in such a restrictive view of the court's dis discretion? Well, it's not, um, my restrictive view, it's the legislature's restrictive view. The legislature has clearly said in this statute that you cannot modify a parenting plan unless you fit into one of these statutory factors and this court enforced that much more. Sure. But when the ca court has the case in front of it, why can't it look at more than one statutory factor? Why is it confined by the pleadings? Because, uh, to do otherwise would be unfair to the litigants who don't know how to prepare a case with regard to factors that are not pled. So isn't the your remedy then a remand with proper notice? The remedy in this case is to vacate the parenting plan and send it back to the court. And then if the parties wanna amend their pleadings and then there's proper notice, they will have a hearing on that and everybody will know what the rules are, which is sort of the fundamental fairness issue that this court addressed in both the Douglas Case and the OSE case. What sort of deference do we owe the trial court? Obviously, the trial court reached a different conclusion than you're urging, which is that actually the premise, uh, underlying the original order was that the father would be in Costa Rica most of the time. And the trial court made a finding that that's what's changed and that's why I'm gonna proceed under GI Don't think you can give the court that kind of deference because that's just not true. We, we can't base a, a change on a parenting plan based upon a fact that's not true. Father testified at the trial that this addendum was a backbone never to be used. This is just for the court because our loosey goosey one was rejected. That's at transcript 45. The only reason the parties filed this addendum, which the court has now relied upon to modify, was because the court wanted a backup plan in case the parents couldn't agree it wanted a definitive schedule. So the parties supplied one and it had a schedule if father ever went to Costa Rica. Your Suggest that none of your arguments are preserved, how do you respond to that? Uh, the arguments with regard to preservation deals solely with a constitutional argument as I understand it, uh, down below the constitutional provision itself, uh, article and part were not identified, but counsel clearly said there was a due process violation, that she was unprepared to deal with things outside the record. Whether or not you deal with that as a constitutional argument, you Mean outside the pleadings? Right outside the pleadings. A a fundamental fairness issue. Uh, I believe it was in Douglas. And in ose you said you didn't have to reach the constitutional argument. It's still, you can't go outside the record. I remembered a case this court had, I believe it's Rakowski, um, 1 68 New Hampshire 57, where a family court didn't have evidence with regard to the value of real estate. So the judge decided, well, I'll just go on Zillow, I'll go outside the record. And this court said, no, you cannot go outside the record. This is a similar situation. You can't go outside the pleadings and do things that no party has a reason to anticipate for purposes of trial. What what about the timing of the notice of appeal? Your Honor, I believe that does not apply in this case because as you know, the motion to reconsider was untimely filed. So we could not wait until the court acted on that to file the notice of appeal. However, by the time the court finally accepted the discretionary appeal, the court had not only accepted the late notice, it had also, uh, ruled on the motion to reconsider and ruled on the, um, no ruled on, yes, ruled on the motion to reconsider. So everything was decided in the lower court before this court accepted the discretionary appeal. Uh, rottenberg was in the days when we didn't have discretionary appeals. And it simply said, once you take a case, it is perfected up here. This court did not take the case until the lower court had air, uh, had ruled. So to the extent that we decide that the court, uh, made decisions under, um, Subpart G, then there's no notice issue, right? There is no notice issue with regard to GG is just a simply a statutory argument about the fact that these people always lived close to one another. And if this court allows, uh, a statement about, uh, a move that never material materialized, then folks can always talk about what their plans were and try to put it into factor G. Well, You don't dispute that the original plan was based on the assumption that father would be in Costa Rica. I, I I do, your Honor. The original plan says, uh, on page 80 of the addendum that they both live in rye. On page 81 it says that mom shall have primary, uh, custody and dad shall have flexible custody. What I think you're thinking about, your honor, is the addendum, which mistakenly said that dad was living, uh, that mom was living in the Seacoast area, and respondent is living primarily in Costa Rica. I can't explain how that came to be, but we do know it's not true. So, and the addendum was a function of the fact that the trial court was uneasy with the flexibility embedded in what the parties had agreed to Correct. But even if we go to the addendum, your Honor, there are two parenting plans, two backups. If we can't agree, there's a plan for if dad ever goes to Costa Rica, which never came to be. And then there's a plan in New Hampshire where he has every other weekend and he has mid-weight visitation. That backup plan, which is a concrete plan, is consistent with the original parenting plan that says Mom is the primary custodian. Uh, nothing changed in the addendum and, and, and these parties never relocated. Uh, factor G is for when I come in for modification because my job has been relocated to California and now the parenting plan doesn't work. That didn't happen in this case. I also wanna raise two issues in the parenting plan that the court addressed that neither party raised one had to deal with medical decisions. The original plan said that in the event the parties couldn't agree on medical care, the decision would be made by the pre pe uh, the children's pediatrician for reasons unknown. Judge Pendleton simply struck that. So now we have a, a dispute between the parents. One case he wants concrete, uh, uh, decision. This one, he doesn't. The other change was with regard to vacations, the original plan allowed for sort of unlimited vacation if they could agree on it. Judge Pendleton changed that to 10 days. Again, no notice about this in terms of evidence with respect to the party's vacation plans where, uh, extended family lived, et cetera. The judge doesn't have The right, there was no, there was no testimony or argument about vacation days. That wasn't part of the case. No, your Honor. And no one discussed the medical issue? No, your Honor. It was just part of the new plan that Judge Pendleton imposed without notice. So if we remand those issues back to the trial court, then court, you've got adequate notice. Well, yes, your honor. Your honor. However, I would expect that the party, the moving party, would have to propose what, what the ground rules are in this new trial. But we, we, the relief we are seeking is for you to vacate the court's order and send this back down. There are no further questions. I'll rest of my brief. Thank you. Good morning. May it please the court. My name is Andrew Pilla. I'm with Shaheen and Gordon, and I represent the Appelle Sean Rourke. There are two reasons why I believe this court should affirm Judge Pendleton's order number one, preservation number two, plain language. The preservation issue is, thus we know that a late motion to reconsider was filed. We know that a notice of appeal was filed before the trial court ruled on the motion to reconsider. So the question before you is this, if a party files a late motion to reconsider and then files a notice of appeal before the trial court rules on the motion to reconsider, are the issues raised in the motion to reconsider preserved? And that's a critical ask because in the appellant's brief, their citation to where were these issues all preserved is the motion to reconsider. And it's my argument that it's not. And the first reason is the, is the substance of Rule 1.26 F and that is the motion to reconsider is intended to give the trial court the opportunity to review and correct its findings if necessary. If you file a motion to, uh, notice of appeal, you strip away the trial court's ability to do exactly what rule 1.26 F wants the trial court to do that is look over and reconsider if necessary, the substance of its order. But that happened here. It did not happen, your Honor, because what we know is undisputed that the notice of appeal was filed about seven to 10 days. And it's in the case summary before the trial court ruled on the motion to reconsider. So the question is, when the trial court ruled on the motion to reconsider, did it have jurisdiction to do so? And my argument is no, because the perfection of an appeal is the filing of the notice. Some Trial courts will adopt that position and not rule on the motion to reconsider unless and until we remand It correct. And the remand was never done. So what you have is a order on a motion to reconsider that was made by a court without jurisdiction. Remember in Rottenberg, be Eunice and 1 0 7 New Hampshire. One of the questions raised was, could the trial court rule on a pending motion for new trial after the appellant filed a notice of appeal? And I believe this court said, no, you would need to remand. Does it make a difference that this is a discretionary appeal? And as Attorney Connor pointed out, the appeal was not accepted until after the motion for reconsideration was ruled on. I don't believe so, judge. And here's why. The notice of appeal is a date. Everybody knows when it happens. The parties know when it happens. The court knows the trial. Court knows when it happens. The Supreme Court knows when it happens. We don't know when this court will accept an appeal. It could be days, it could be weeks, it could be months. We don't, you may accept the appeal, but the order may not be processed through the clerk's office for several days. And in that window, that unknown window of time, what could conceivably happen is if we adopt the appellant's position, is that the trial court could then make changes, correct, alter the final decree. People could run to court on late motions to reconsider or ex partes. And by the time the acceptance order comes out, you could have an appeal that the, the entire subject matter of the notice of appeal is gone because now the trial court has re rewritten or changed or whatever the notice of appeal in my position is. That is a hard line. That's a, that's a, the snap the line. That's when the trial court's authority ends and your authority takes over. And the, and the proper thing that should have happened in this case is that someone should have said, move to remand. There's a late file, um, uh, motion to reconsider remand for the limited purpose of having the trial court decide the motion to reconsider. And then now you have a fully developed record, which if you had the order and the motion to reconsider in front of you, you may have changed or you may not have had some of these issues on appeal. So I think, think it is a very important, can't Those be supplied through an amendment? Well, here's the problem, judge, is that it's subject matter jurisdiction. And what you're essentially asking this court to do is waive its subject matter jurisdiction. 'cause rottenberg is very clear perfection of the appeal, which in all of our rules we all talk about not filing of the notice of appeal. That's the, that's when the appellate clock, you know, the 30 day clock stops on a, on rule seven appeals. What you'll be asking this court to do, which I don't think with all due respect you can, is say, well, we're gonna waive our subject matter jurisdiction and we're gonna, And it's not a collateral matter that the trial court retains jurisdiction over. No, because in this case, the as rottenberg instructs if the, the trial court cannot act once the appeal is filed on subject matter that embraces the appeal. In this case, the appeal was entirely set forth in the motion to reconsider the trial. Court could not have acted on any of those subject matters. It could enforce its orders, it could act on collateral matters, but not on what was embraced within the subject matter of the appeal. So my argument on the, on the first P, which is preservation, none of this is preserved on the subsidiary constitutional arguments. Again, if you look at their motion to reconsider, I believe it's paragraph 29, page six, there is only one paragraph, two lines where it says due process. Now we know that the state constitutional arguments are not preserved on simply saying due process. You have to cite the specific article of the state constitution. So any of the state constitutional claims are knocked out. But I would submit that a two line argument on due process with no case law, no citation to the specific article you're talking about is insufficient. If the argument is not adequately developed below you, folks can decline to hear it. And more important if as far as preservation goes, you have to tell the court what could have happened or what evidence I could have brought that makes the lack of notice fatal. They have not done that other than said we would've disputed some of the allegations made by father. And that flows into my second p the plain language, the heart of their argument saying, well, section one G does not apply because in reality, these parents never moved to different countries. They always stayed within the seacoast. Well, here's the, the issue I have. If we look at the plain language of one G, it says, if the parent's allocation of parenting time was based whole or in part on a travel time between the parent's residence and they're now living closer or farther to each other. So that's the statute. What do we look at? We look at the parenting plan and what is the parenting plan in this case, the parenting plan is both the original nine page document plus the addendum. Judge Pendleton made a very clear finding that the addendum that these parents renegotiated is now part and parcel of the parenting plan. And if you look at the parenting plan addendum, it says quote, this is, uh, addendum 91. At this time, the petitioner Alexandra is living in the New Hampshire Seacoast area and the respondent Sean, is primarily living primarily in Costa Rica. That's the plain language of the plan. That is what these people signed in Tabor McCarthy, which describes how you interpret a contract or stipulation or court order. You look at the plain language. That's what it says. We, We can allow to ignore the facts on the ground. Well, here's the thing, if that is the case, then why have a parenting then? Why have this agreement? Because our parties now allowed to say, well, this is what we agreed to. This is what we filed with the court. This is what we represented to Judge Pendleton in hopes that he would approve this plan. And now we're saying that never existed at all. Again, the whole concept of parole evidence, which applies to, um, interpretation of written documents, which I would, uh, suggest also includes stipulations, which are contractual in nature, not If it's a complete misrepresentation to the court. I was not trial counsel and, and and neither was attorney Connor. So we, we, I can tell, I don't know why that language was put in there. But nevertheless, here is what was represented to the court that dad is living primarily in Costa Rica. Mom is living in the New Hampshire Seacoast. That is what Judge Pendleton was presented. That is what Judge Pendleton approved. So now we have a situation. Can the parties say, wait a minute, that never should have been rep, that never should have. That never really happened. I would say no because otherwise why have contracts? Why have written agreements? Why make representation? The parties Should have gone back to Judge Pendleton and suggested that this be changed. When it didn't happen. They could have, I would argue they probably should have, but they did not. And therefore now you have an agreement that you're trying to walk back and say, no, no, no, this never happened. Lastly, on plain language judge, there's arguments that, um, uh, the trial court grafted on or looked at two other sections of the parenting plan. I would show you or suggest to you that in the trial court's order, it made two very distinct findings that the parenting, that it was modifying the parenting plan based solely on Section one G, for example. And this is page 13 of my brief, page seven of the narrative order. Based upon the testimony, the court finds sufficient evidence to meet the father's burden under 11 one G to modify the parenting plan. It later writes, the family division wrote, the court does agree with the father in that section 4 61 A 11 one G of the modification statute does apply. So in this case, judge judges the trial court based, its modifications solely on one G. It may have cited other sections, uh, that could have applied, maybe could have applied, but it clearly stated, I am modifying the plan based upon one G. Do do you agree that the vacation issue arose, uh, Ponte in the court's order? It does not. I agree with attorney. Connor does not appear to have been testimony on that issue. However, I would ask you to look at two things. Inre N 1 72 New Hampshire, the court can modify a parenting plan. Ponte, if it determines a modification, is in the child's best interest. That's under RSA 4 61 A four. I believe that the parties disagree on a parenting plan. The court can make its own modifications. Also, the court even ruled on this, on its, you know, untimely motion to reconsider or order on its motion to reconsider. It did mention that and had the, uh, case have been remanded like it should have been, this issue wouldn't have been before you because that vacation situation and possibly the medical situation could have been dealt with. But again, it never was. So again, would've could have, should have. But if you don't have a jurisdictionally valid order on the motion to reconsider, and that is the sole source of your appeal, remember, like we you said in Irving Oil and ud, we're not gonna search the record and try to guess where you've preserved it. You have to tell us where you preserved it and if the source of the preservation is invalid. Did your client object to the motion to Reconsider? I believe timelines. I believe that they did, your Honor, I would have to look at the case summary, but I believe an objection was filed. I see my red light is on. I thank you for your time. And before I go, I would like just to introduce our newest associate, Julianne Floyd, who's in the gallery with us. Thank you very much Your Honor. Your honor, two minutes with regard to rebuttal. First on the res preservation issue, as I understand the argument, uh, attorney Pela is suggesting that, um, uh, someone has to choose between filing a notice of appeal, uh, and or foregoing their rights when the motion to reconsider is untimely filed. That, that, that can't be, that somebody cannot get appellate relief simply because the motion to reconsider is untimely filed. Um, secondly, we get to the same. I think the Argument, I think the argument is that the arguments you're making now, were not preserved, but for the motion to reconsider, which is substantially different, isn't it? Well, it's not, your Honor. First of all, with regard to, uh, whether or not the statutory grounds and G were satisfied, a direct appeal could have been made on that without a motion to reconsider. Was That part of the direct appeal? Yes. So what, what about the constitutional issues? Cindy? The constitutional issues arose solely as a result of the order and pursuant to butland. That's why a motion to reconsider was filed. But you also have, and But then the, the subsidiary issue there is that where, where in the motion for reconsideration was there an articulation of the prejudice, which is necessary in a due process claim, lack of notice claim. That was set forth, uh, with regard to the evidence that Attorney Pela just mentioned, that she would have debated it had she known it. It's in the motion to reconsider Your Honor. Um, it's at paragraph Addendum, page 55 to 56. There was an offer of proof made with regard to preservation. Also, I wanna deal with Rottenberg. Uh, it says that this court, that the lower court loses jurisdiction when an appeal is perfected with regard to a discretionary appeal. It is not perfected until you accept it. And the lower court had ruled long before that. If the other side truly thought that there needed to be a motion to remand this notice of appeal, until that ruling got addressed, they could have filed the motion for summary affirmance in the notice of appeal in the procedural history, we notified the court of the per process that we were filing early because we filed our motion to reconsider late. We got the answer on the motion to reconsider everything was preserved. A motion to remand would not have changed Anything. What's the authority on your point? That the notice of appeal in a discretionary setting is not perfected until accepted? My authority is the fact that when Rottenberg was decided, your Honor, there were no such things as discretionary appeal. So it was different. It was a mandatory appeal in that case. Uh, we have not had this issue arise subsequently, but I would tell you that the process is exact would be exactly the same. Whether we had a motion to remand or not, we would get to the same place. What about the prudential concerns that attorney peeler talks about, which is a notice of appeal is a bright line, everyone knows about it and the trial court, you know, there, there are no further issues that would be developed by the trial court. That could be subject of the appeal. I mean, it is a bright line. It is your honor, but the motion to remand was not necessary because the court decided the underlying issues with regard to reconsideration before this court accepted it. There would've been no change in the outcome here. Uh, it's an attempt to to to sort of take process over, uh, the practical aspect here. Uh, and if they truly thought a motion to remand was warranted, they could have raised it in a timely fashion. We could have gone through those pleading mechanisms and ended up at exactly the same place. Thank you very much, counsel. Case is submitted. Court. Thank you. Your honors.