August 6, 2019
- Whether Circuit Court properly modified parents’ parenting plan.
Mother and Father filed for divorce in January 2014. The court entered a temporary parenting plan, which awarded the parties joint decision-making responsibility for their children with roughly equal parenting time. Father filed emergency motions to suspend Mother’s parenting time based on her alcoholism. The court entered an order granting Father the temporary sole decision-making and residential responsibility for the children. In October 2016, the trial court entered a final decree in the parties’ divorce and a final parenting plan, granting the parties joint decision-making responsibility and granting Father primary residential responsibility for the children. The court also stated that while the parenting plan was “final,” it would be subject to review in six months to determine if the parenting schedule would be modified to allow shared or equal parenting time. The narrative continued by stating that any change or modification to the parenting plan would be subject to the mother addressing her alcoholism in a meaningful way.
Father then filed a third motion to suspend Mother’s parenting time. The court entered a new ruling in February 2017, modifying the October 2016 parenting plan, in which it eliminated certain periods of time during which Mother could spend with the children. Mother filed a motion to modify the residential responsibilities of the parties for their children. Thereafter, the court modified the time during which Mother could spend with her children, essentially reinstating the October 2016 parenting plan. Mother appealed and Father cross-appealed the court’s modification of the parties’ parenting plan. Mother argued that the court unreasonably failed to grant her equal parenting time after finding that she was sober and had complied with the court’s prior orders. Father argued that the court lacked statutory authority to modify the parties’ prior parenting plan.
The Supreme Court held that to the extent the trial court modified the February 2017 parenting plan by merely reinstating the October 2016 parenting plan, it could do so without requiring the mother to plead and prove a statutory ground for modification because the February 2017 parenting plan was a temporary order. RSA 461 A:8 (2018) authorizes a court to issue temporary orders that provide for the “temporary allocation of parental rights and responsibilities of any minor child as provided in RSA 461-A:6.” The Supreme Court assumed without deciding that the trial court could issue a temporary order after the court had issued its permanent order. Therefore, the February 2017 order was a temporary change to the allocation of parental rights and responsibilities set forth in the court’s October 2016 parenting plan. As a result, requirements for issuing an order modifying a permanent order concerning parental rights and responsibilities did not apply. The Supreme Court also held that to allow equal parenting time for Mother was not in the best interest of the children. Further, the lower court could modify the supervision requirements in the parenting plan based on the child’s best interest because the supervision requirement was not a change to the parenting schedule.
Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard on the brief and orally), for the petitioner. Solomon Professional Association, of Londonderry (Elaine M. Kennedy on the brief and orally), for the respondents.