Richelson v. Richelson

• Decision Date: 07 December 1987
• Docket Number: No. 86-525,86-525
• Citation: 536 A.2d 176,130 N.H. 137
• Parties: Andrew M. RICHELSON v. Linda RICHELSON.
• Court: New Hampshire Supreme Court

Page 176

536 A.2d 176

130 N.H. 137

Andrew M. RICHELSON v. Linda RICHELSON.

No. 86-525.

Supreme Court of New Hampshire.

Dec. 7, 1987.

Daniel A. Laufer, Nashua, by brief and orally, for plaintiff.

Brennan Professional Association, Manchester (William E. Brennan on the brief and orally), for defendant.

Carolyn W. Baldwin, Concord, by brief and orally, as guardian ad litem for minor child.

BATCHELDER, Justice.

This case is the culmination of a protracted and acrimonious divorce and custody dispute. The plaintiff appeals an order of the Superior Court (Manias, J.), approving the report of the Master (Stephanie Nute, Esquire), altering the plaintiff's custodial visitation schedule, imposing child support obligations on him, and requiring him to sign a 1981 amended joint tax return pursuant to a previous order. The plaintiff also accuses the defendant of "master shopping"; that is, excessively litigating the divorce and the child custody issue in order to find a sympathetic master. We affirm.

The procedural history of this case reflects the parties' inability to agree on even the most trivial matters, and their failure to cooperate regarding the raising of their child. The parties were divorced in 1983 and were awarded joint legal custody of their minor child, with the defendant having physical custody and the plaintiff having extensive visitation rights. Each party was held responsible for child support only for the periods that the child spent with that parent. The marital treasury was divided, and, among other features of the property settlement, the parties were ordered to file joint tax returns for the years 1980, 1981, and 1982. Finally, the defendant was ordered not to remove the child from New Hampshire except for temporary periods and under limited circumstances. No alimony obligation was sought or imposed.

In January, 1984, the defendant filed motions for additional orders and for clarification and reconsideration on several grounds, but primarily seeking reconsideration of the travel restriction. The plaintiff also filed a motion to clarify, and for attorney fees. After noting in his order of February 10, 1984, that the parties' "constant bickering ... rises to the level of harassment," Master Bruce F. DalPra (the initial master) modified the visitation schedule slightly and denied plaintiff's request for fees. More significantly, the master refused to modify the restriction which he had placed on the defendant concerning removing the child from the State. In March, 1984, the defendant filed an extensive motion to reconsider and for a hearing on the out-of-state travel restriction. The motion to reconsider was denied after a hearing by an order dated July 26, 1984.

On January 9, 1985, the plaintiff filed a motion for contempt and to modify and bring forward. The basis for the contempt motion was the defendant's unilateral decision to enroll the child in a day care center in Medford, Massachusetts. She had been removing the child from the State on a daily basis in apparent violation of the custody decree. The plaintiff also accused the defendant of violating the visitation order. He sought as relief primary physical custody of the child and costs and fees. The defendant answered, and filed a cross petition alleging, inter alia, violations by the plaintiff of the court's order relative to filing joint tax returns. The motions were heard before the Superior Court (Murphy, J.). In an order dated April 12, 1985, the defendant was found in contempt for removing the child from the jurisdiction, failing to file joint tax returns, and failing to permit the plaintiff to exercise fully his visitation rights. The plaintiff was found not in contempt. The court refused to reconsider the April 12th order, and on appeal this court summarily affirmed that order on October 3, 1985.

Meanwhile, on August 23, 1985, the defendant had filed a motion for relief from the April 12th order with the superior court. Claiming an inability to find a suitable alternative, the defendant re-registered the child in the Medford, Massachusetts day care center's kindergarten program for the 1985-86 school year. The plaintiff objected, and asked the court to find the defendant in continuous contempt, which it did in an order dated March 6, 1986, wherein it levied a $300 fine on the defendant. The court also set May 27, 1986, as a hearing date to determine where the child would begin the first grade in September of that year, and ordered the parties to investigate potential schools and to report to the guardian ad litem, who had been appointed at the outset of the case.

At the May hearing the court heard testimony from the defendant, but, due to time constraints, adjourned the hearing until July 25th; the July hearing was subsequently continued until October 14th because of an emergency resulting in defense counsel's unavailability. In August, the guardian ad litem filed a motion for a temporary order to place the child in the Frost School, a private institution in Derry, and for the plaintiff to have physical custody during the school week. No hearing was held and no order was rendered on the motion. The child remained with the defendant and matriculated in the first grade in the Salem school district.

At the October hearing, the master heard testimony from the defendant, the plaintiff, the guardian ad litem, and an official of the Frost School. After considering this testimony and reports from the guardian ad litem, psychologists, and counselors, the master ordered the child to be removed from the first grade and placed in the Salem school district's readiness program at the Soule School. The master also reduced the plaintiff's visitation rights to comport with the child's school schedule and ordered the plaintiff to pay fifty dollars ($50) per week in child support. She also ordered the parties to file joint or amended joint tax returns for 1981 and 1982 in order to account for moving expense deductions created by the defendant. The plaintiff appeals this order in every material respect.

The plaintiff argues that the master abused her discretion in substantially reducing his custodial visitation rights, and supports his contention by pointing to several alleged errors resulting in the ordered change in visitation. The plaintiff argues that the master's failure to hold a hearing or to rule on the guardian ad litem's motion for temporary order (in which the plaintiff joined) rendered it a foregone conclusion that the child would remain with the defendant and in the Salem school system, because once the child started school and developed a routine, the master would not order a change. Thus, the result of the October 14th hearing was predetermined.

The plaintiff advances no argument regarding these alleged failures by the master other than that they amounted to an abuse of discretion. Assuming arguendo that this is the appropriate standard, the plaintiff's argument nevertheless fails. There is authority for the proposition that a tribunal's failure to exercise discretion when properly requested to do so is in itself an abuse of discretion. See State v. Gardner, 139 Vt. 456, 461, 433 A.2d 249, 252 (1981) (failure to exercise discretion with respect to admissibility of evidence of defendant's prior convictions); Board of Medical Practice v. Perry-Hooker, M.D., 139 Vt. 264, 268, 427 A.2d 1334, 1336 (1981) (failure of superior court to exercise discretion with respect to appropriate sanction upon finding of unprofessional conduct). Thus, the master's failure to exercise her discretion and rule on the motion for temporary order, which is unquestionably of a nonfrivolous nature, is seemingly an abuse of discretion.

However, there is equal support in the law for the proposition that for an error to be reversible, it must be prejudicial to the party claiming it. See Appeal of Nationwide Ins. Co., 120 N.H. 90, 94, 411 A.2d 1107, 1109 (1980) (doctrine that error must be prejudicial to be reversible applies to decisions of an administrative agency); cf. Thayer v. Thayer, 119 N.H. 871, 874, 409 A.2d 1326, 1328 (1979) (even if court erred, error was de minimis and did not constitute reversible error). At the October 14th hearing, the master articulated on the record her reasons for not ruling on the motion for temporary order. She stated that there were no hearing dates available until the following January, and that she could not make what would have amounted to a dispositive ruling without a hearing and without the benefit of all of the evidence. The master would have had no alternative but to deny the order, and that would have left the plaintiff in no better position than he is in right now. Although we see some merit in the plaintiff's argument that the result of the October 14th hearing was predetermined, we think that he brought on some of his own misfortune by not joining in the guardian's motion for temporary order until late August, only a few days before the start of the school year. Thus, even if there was error, the plaintiff was not prejudiced by it.

The plaintiff also argues that the master ignored the recommendations of the guardian ad litem in making her ruling. Both the plaintiff and the guardian ad litem assert that this was error, and that greater weight should have been given to the guardian ad litem's recommendations because of the unique role of the guardian ad litem in representing the best interests of the child.

Pursuant to the court's request, the guardian ad litem submitted a report and recommendations regarding the child's relationship with each parent and her educational needs. The guardian ad litem testified that it was her opinion that the defendant had engaged in a pattern of conduct designed to destroy the child's relationship with her father. There was other testimony concerning the respective abilities of each parent to care and to provide for the child. The guardian ad litem testified that...