Ballou v. Ballou, 78-035

• Decision Date: 19 June 1978
• Docket Number: No. 78-035,78-035
• Citation: 387 A.2d 1169,118 N.H. 463
• Parties: William W. BALLOU v. Connie J. BALLOU.
• Court: New Hampshire Supreme Court

Page 1169

387 A.2d 1169

118 N.H. 463

William W. BALLOU v. Connie J. BALLOU.

No. 78-035.

Supreme Court of New Hampshire.

June 19, 1978.

Cristiano, Kromphold & Green, Keene (Douglas F. Green, Keene, orally), for plaintiff.

Donald E. Reid, Jr., Keene, waived brief and oral argument for defendant.

BOIS, Justice.

In this petition for modification of a court decree the plaintiff seeks custody of his minor child. Currently the defendant has custody under a stipulation incorporated into the court decree that divorced the parties. A hearing on the petition was held before a Master (Earl J. Dearborn, Esq.), who recommended that the petition be denied and that for a period of one year the New Hampshire Department of Public Welfare regularly check on the child and her home situation and report its findings to the court. A decree was entered accordingly. Plaintiff seasonably excepted to certain rulings of the court, and all questions of law raised were reserved and transferred by Loughlin, J. We affirm, but recommend that the court enforce its order regarding periodic checks and reports to it by the division of public welfare.

Basically, plaintiff's claim is that under the rule set down in Perreault v. Cook, 114 N.H. 440, 322 A.2d 610 (1974), the evidence in the instant case mandates a transfer of custody of the minor child to him. He asserts that the trial court's failure to transfer custody was an abuse of its discretion.

The master ruled that "the paramount concern is the best interest of the child and that the relationship established by the custody award should not be disturbed unless the party demonstrates that the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility the child will be harmed if he continues to live under the present arrangement." This accords fully with the law in this State. Gillis v. Gillis, 118 N.H. ---, 384 A.2d 792 (1978); Forde v. Sommers, 117 N.H. ---, 373 A.2d 358 (1977); Perreault v. Cook, 114 N.H. 440, 322 A.2d 610 (1974).

The plaintiff argues that the circumstances in this case shows sufficient change to compel a modification of the custody order. He submits that the child's home environment is improper. Specifically, he alleges, first, that the defendant's employment has been sporadic. She allegedly held loud parties and caused disturbances resulting in her eviction from the trailer park in which she resided. Subsequently the defendant resided in the home of her boyfriend's grandmother. The defendant also allegedly failed to properly supervise the minor daughter, and thereby subjected her to two possible incidents of molestation. The defendant inadequately cared for the child, with the result that the child was at times, dirty and unkempt. Finally, the plaintiff argues that the child lacked discipline and as shown by the minor's apparent weariness, kept late hours. He emphasizes that the defendant was beset by personal problems. Since 1974, she...