In re DeSantis

• Decision Date: 16 November 2022
• Docket Number: 2021-0294
• Parties: In the Matter of Gina DeSantis and Troy Cowell,
• Court: New Hampshire Supreme Court

In the Matter of Gina DeSantis and Troy Cowell,

No. 2021-0294

Supreme Court of New Hampshire

November 16, 2022

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). We affirm in part, vacate in part, and remand.

The petitioner (Mother) appeals the order of the Circuit Court (Forrest, J.) following a hearing, implementing a parenting plan between her and the respondent (Father), and granting the intervenors' (the grandparents') request for grandparent visitation. See RSA 461-A:6 (Supp. 2021) (amended 2022) (governing parenting plans),:13 (2018) (authorizing award of grandparent visitation). Mother argues that the trial court erred when it: (1) awarded the grandparents visitation rights without applying the test set forth in Chief Justice Broderick's opinion in In the Matter of R.A. & J.M., 153 N.H. 82 (2005), and without making express findings with respect to all the factors listed in RSA 461-A:13, II; (2) failed to timely rule on a motion for contempt for nonpayment of child support and neglected to compute Father's child support arrearage; and (3) awarded Father unsupervised visitation with the children despite his behavioral history.

Following a final hearing, the court instituted a parenting plan that gradually increased Father's parenting time with the children, beginning with supervised visits and "semi-supervised" visits at a supervised visitation center, and graduating to unsupervised parenting time provided that Father meets certain conditions. In addition, the court awarded the grandparents visitation with the children on two Saturdays a month until Father achieves fully unsupervised visitation, at which time the grandparents' visitation would be reduced to one Saturday per month. As to child support, the court denied, without prejudice, Mother's pending motion for contempt for Father's nonpayment of child support and ruled that Father's child support arrearage would be determined by the New Hampshire Department of Health and Human Services. This appeal followed.

The trial court has wide discretion in matters involving parental rights and responsibilities, child support orders, and contempt motions, and we will not overturn its determination except when there has been an unsustainable exercise of discretion. In the Matter of P.B. & T.W., 167 N.H. 627, 631 (2015)

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(parental rights and responsibilities); In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 138, 140 (2020) (contempt and child support). When we review for an unsustainable exercise of discretion, we are deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made. P.B., 167 N.H. at 631-32. However, we review a trial court's application of law to facts de novo. Id. at 632.

Mother first argues that the trial court erred when it awarded grandparent visitation without applying the four-factor test set forth in Chief Justice Broderick's opinion in In the Matter of R.A. & J.M. In R.A., we addressed the constitutionality of RSA 458:17, VI (2004) (repealed 2005), the predecessor statute to RSA 461-A:6, V, which permitted awards of custody to grandparents. See R.A., 153 N.H. at 93-94 (plurality opinion). Specifically, we considered whether that statute was constitutional in light of the United States Supreme Court's recognition in Troxel v. Granville, 530 U.S. 57 (2000), that parents have a "fundamental right . . . to make decisions concerning the care, custody, and control of their children." Id. at 90, 93-94 (quotation omitted) (plurality opinion). All five justices agreed that the statute could not be constitutionally applied by using a simple "best-interests standard" to determine whether an award of custody to grandparents was appropriate; however, they reached no other consensus. See In the Matter of Bordalo & Carter, 164 N.H. 310, 315-16 (2012) (summarizing R.A. Decision). Consequently, the court issued three separate opinions: Two justices found the statute to be unconstitutional, two justices concluded that the statute was constitutional as long as three factors were met, and Chief Justice Broderick concluded that the statute was constitutional provided that a four-factor test (Broderick test) could be satisfied. See R. A, 153 NH at 101 (Broderick, CJ); Id. at 110 (Nadeau & Galway, JJ, concurring in part and dissenting in part); id. at 111-12 (Dalianis & Duggan, JJ., dissenting); see also Bordalo, 164 N.H. at 315-16 (summarizing R.A. decision).

Mother argues that the trial court should have applied the four-factor Broderick test in this case because there is no meaningful distinction between the award of grandparent visitation that is at issue in this case, and the award of...