Doubleday v. Doubleday

• Decision Date: 12 December 1988
• Docket Number: No. 87-375,87-375
• Citation: 551 A.2d 525,131 N.H. 250
• Parties: Marie E. DOUBLEDAY v. Elwyn J. DOUBLEDAY, Jr.
• Court: New Hampshire Supreme Court

Page 525

551 A.2d 525

131 N.H. 250

Marie E. DOUBLEDAY v. Elwyn J. DOUBLEDAY, Jr.

No. 87-375.

Supreme Court of New Hampshire.

Dec. 12, 1988.

[131 N.H. 251] Murphy, McLaughlin & Hemeon, Laconia (Matthew J. Lahey on the brief and orally), for plaintiff.

Copithorne and Copithorne, Laconia (David M. Copithorne on the brief and orally), for defendant.

Stephen J. Laurent, Laconia, as guardian ad litem, filed no brief.

MEMORANDUM OPINION

SOUTER, Justice.

In this appeal from a decree of divorce rendered by the Superior Court (M. Flynn, J.), the defendant challenges the order of physical custody, the division of assets and the award of child support. We affirm.

Since the parties' separation in 1985, their daughter, now 15 years old, has resided with the defendant in the marital residence, while the plaintiff has had custody of their son, now 9. The defendant nonetheless claims that the court abused its discretion, see Richelson v. Richelson, 130 N.H. 137, 144, 536 A.2d 176, 180-81 (1987), in ordering physical custody consistently with these arrangements, for the reason that a child psychologist, the guardian ad litem, and nine laypeople who communicated with the guardian recommended that the defendant assume the son's physical custody. The defendant fails, however, to recognize the limited force of the evidence on which he relies. Although the psychologist did so recommend, he expressly disclaimed any personal knowledge that the plaintiff was unfit to retain the son's custody for the reasons the defendant had alleged. Although the guardian likewise recommended that the defendant have physical custody of the son, the guardian's report of his contact with the plaintiff left no impression of parental unfitness. Finally, the guardian himself gave no great weight to the mere number of the nine lay recommendations, and there is hardly need to cite authority that triers of fact are not bound to assume that the quantity of evidence is a measure of its probative force. See N.H. Milk Dealers' Ass'n v. Milk Control Board, 107 N.H. 335, 342-43, 222 A.2d 194, 200 (1966).

As against the evidence favoring custody in the defendant, the trial court had testimony indicating that during the eighteen months between the parties' separation and the final hearing, the plaintiff had sought appropriate medical treatment for her son's mild cerebral palsy, and had combined patience in responding to his handicaps with efforts to encourage his development through physical activities. It is undisputed that the plaintiff loves her son and that he loves her in return and prefers to live with her. The trial court, which heard the parties directly, could not therefore be faulted for irrationality in finding that the plaintiff's physical custody of the son would "be most conducive to [his] benefit...." RSA 458:17, I (Supp.1988).

On the same point, the defendant urges us to give a preferred status to a guardian ad litem's recommendation, which he maintains should be binding on the court in the absence of the court's detailed statement of reasons for rejecting it. We adhere, however, to our reasons for recently refusing to ascribe presumptive force to such a guardian's position, see Richelson v Richelson, supra 130 N.H. at 143, 536 A.2d at 180, and leave the parties to the traditional option of requesting findings of fact to disclose details of the court's reasoning in support of a discretionary ruling. See RSA 491:15; RSA 519:11....