FAMILY LAW

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

Nos. 2018-0086; 2018-0153; 2018-0398,
March 11, 2019

Affirmed in part, Vacated in part and Remanded

  • Whether the Trial Court erred in: dismissing a motion for contempt; denying a motion regarding parental interference; denying a motion to restrain; modifying child support; denying a motion to modify a parenting plan; sua sponte modifying a parenting plan; ordering a party to pay attorney’s fees; granting a motion to approve daycare enrollment for a child; and whether the family division had proper jurisdiction to hear a divorce case when it was ambiguous as to whether a separate related matter had been filed in a foreign state.

Mr. Joshua Ndyaija (the “Respondent”) filed a number of appeals following several different findings of the Trial Court that found in favor of Ms. Crystal Ndyaija (the “Petitioner”).

At the outset, the Court was asked to address whether the Family Division had proper subject matter authority to hear the case considering there had been an earlier family matter filed in a foreign state. In concluding that the Family Division had proper subject matter jurisdiction, the Court reviewed and analyzed the issue under the Uniform Child Custody Jurisdiction and Enforcement Act (the “Act”). Specifically, the Court concluded that New Hampshire should be considered the child’s “home state” under the Act and that the previously filed family matters that had been filed in the foreign state had been concluded prior to the initiation of the divorce proceeding in New Hampshire. The Court then addressed whether pursuant to RSA 458:5 and RSA 458:6, the Family Division had jurisdiction, ultimately concluding that the Family Division properly retained its jurisdiction.

Next, the Court analyzed the various rulings that the Respondent had appealed. In concluding that the Family Division had not unsustainably exercised its discretion in denying the Respondent’s Contempt Motion, the Court concluded that there was no evidence on the record to suggest that the Petitioner had acted “willfully or with malice.” Thus, the Court concluded that the Family Division had not unsustainably exercised its discretion in not issuing a Contempt Order against the Petitioner. In concluding that the Family Division had not unsustainably exercised its discretion in denying the Respondent’s Motion relating to restraint and parental interference, the Court again found that the record before it did not support a reversal.

While the Court sustained the Family Division’s finding on the Respondent’s respective income, the Court did vacate the new Support Order that had been is- sued finding that the Petitioner had failed to adequately provide information on the Child Support Worksheet. The Court further remanded to the Family Division the issue of whether the Petitioner had failed to comply with Family Rule 1.25. The Court affirmed the Family Division’s finding that the Respondent was not entitled to a deviation from the presumptive child support payment based on the fact that the special circumstances the Respondent claimed were not, in fact, special circumstances. The Court vacated and remanded the issue of what arrearage payment the Respondent was required to make, specifically finding that the record did not reflect whether the Family Division had taken into consideration the fact that the Respondent had continued to pay the current child support amount during the pendency of the review of the request for modification. The Court also affirmed the decision of the Family Division to order that the Respondent pay child support directly through the Division of Child Support Services, finding that the Respondent had not developed his argument for its review.

While the Court ultimately concluded that the Family Division acted within its discretion on denying the Respondent’s different motions to change the parties parenting plan, and in sua sponte changing the parties parenting plan, the Court ultimately concluded that based on the record, the Petitioner was not entitled to her attorney’s fees. This finding was based on the fact that the Court ultimately concluded that some of the Respondent’s motions were legally sufficient to bring and were, therefore, not all entirely brought in bad faith. Finally, after a further review of the record, the Court concluded that the decision to grant the Petitioner’s motion to enroll the parties’ child in daycare was not an unsustainable exercise of its discretion.

Robert M. Shepard of Smith-Weiss, P.C. on the Brief for the Petitioner. Mr. Joshua Ndyaija, for himself, by Brief.