In the Matter of Dianne Haley and Joseph Haley, III

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0712, In the Matter of Dianne Haley and
Joseph Haley, III, the court on September 17, 2015, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The petitioner, Dianne Haley, appeals a final decree and parenting plan
issued by the Circuit Court (Introcaso, J.) in her divorce from the respondent,
Joseph Haley, III. See RSA 458:16-a (2004); RSA 461-A:4 (Supp. 2014). The
petitioner contends that the trial court erred by: (1) denying her request “to delay
the last day of the Final Hearing in order to have forensic psychiatric evaluations
of the parties”; (2) failing “to appropriately consider the statutory factors” of RSA
461-A:6 (Supp. 2014) in determining the child’s best interest; (3) excluding
evidence that the respondent had dissipated more than $200,000 in marital
assets; (4) allowing the respondent “to testify with respect [to] the financial
posture of the parties when . . . [he] had never provided necessary mandatory”
disclosures; and (5) “holding [her] to strict compliance with the rules of evidence,
while failing to hold other parties to the same” standard.

We first address the petitioner’s argument that the trial court erred by not
obtaining forensic psychiatric evaluations of the parties to assist in determining
the child’s best interest. The trial court has wide discretion to allocate parental
rights and responsibilities. In the Matter of Miller & Todd, 161 N.H. 630, 640
(2011). Our review is limited to determining whether it clearly appears that the
trial court engaged in an unsustainable exercise of discretion. Id. This means
that we review only whether the record establishes an objective basis sufficient to
sustain the discretionary judgment made, and we will not disturb the trial court’s
determination if it could reasonably be made. Id. When determining matters of
parenting rights and responsibilities, a trial court’s overriding concern is the best
interest of the child. Id.

On April 14, 2014, in response to a motion by the guardian ad litem (GAL),
the trial court ordered the parties to undergo psychiatric evaluations. The trial
court postponed the start of the final hearing by four months to accommodate
the evaluations. Subsequently, the GAL reported that the petitioner claimed that
she could not pay for her evaluation. However, less than three weeks before the
start of the final hearing, after the GAL informed the parties that there was not
sufficient time to conduct the evaluations, the petitioner informed the GAL that
she would borrow the money. The GAL testified that the respondent “had been
ready, willing, and able to submit to his evaluation going back to April,” but that
an evaluation of only one parent would have been inappropriate.

At the close of her case-in-chief, the petitioner moved for forensic
psychological evaluations of the parties. At that time, she informed the court
that she could produce the necessary funds immediately. The trial court denied
that motion, in part, because it “would require an indefinite continuance” of the
final hearing and “both the respondent and the GAL believe that it is in the best
interest of the child who is the subject of the parenting dispute to have closure.”
Although the petitioner argues that “she made numerous attempts to arrange a
payment plan,” the trial court found, and the record supports, that the “only
reason that the evaluations were not done as originally planned was due to [her]
inability to arrange for a way to pay” her share. Furthermore, the trial court
found that the petitioner had cast doubt upon the validity of any evaluation of
the respondent because she told the GAL that the respondent was “prepping to
fool [the forensic psychiatrist] in the same way he fooled you.”

The petitioner argues that the trial court “did not have a clear picture of
[the respondent’s] mental health” and thus could not determine the child’s best
interest. We note that, during the nearly three days in which the petitioner
presented her case, she had ample opportunity to present evidence regarding the
respondent’s mental health. We further note that, although the GAL found it
“unfortunate” that the forensic psychiatric evaluation had not been conducted,
he expressed no concern about his ability to recommend a parenting plan that
would be in the child’s best interest. Instead, he testified that the forensic
psychiatrist had reviewed his reports and concluded that the GAL “had a fair
grasp of what [he] was dealing with here.”

The petitioner argues that both the GAL and the trial court expressed
concern regarding the parties’ abilities to safely and competently parent the child.
However, the GAL reported that his “primary concerns about [the respondent]
can hopefully be addressed by issuing some strict and ongoing parenting
requirements,” and that he was “less confident that any parenting
recommendations can alleviate the intensely negative environment which [the
child] may experience with [the petitioner].” Similarly, the trial court stated that
it had

a major concern that [the petitioner] will continue to express her
hatred and contempt for [the respondent] in the presence of [the
child]. She believes that supervised parenting is necessary to protect
[the child]. Despite this belief, she has chosen not to see [the child]
if it means dealing with the [respondent]. This is not in the child’s
best interest.

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Furthermore, the trial court found that the child, who was thirteen at the time of
the hearing, “wish[ed] to live with his father; his relationship with his mother has
suffered as a result of mother’s relentless negative behavior towards his father.”

We conclude that the record establishes an objective basis sufficient to
sustain the trial court’s discretionary judgment not to require forensic psychiatric
evaluations.

We next address whether the trial court adequately addressed the
statutory factors in determining parental rights and responsibilities. Specifically,
the petitioner argues that the trial court failed to consider: (1) the petitioner’s
“very strong allegations that [the respondent] was alienating [the child] from her,”
see RSA 461-A:6, I(e), (f), (g); (2) “evidence presented that [the respondent] had
been abusive to” another child of the petitioner, see RSA 461-A:6, I(j); and (3) the
respondent’s “ability to provide [the child] with a safe environment,” see RSA 461-
A:6, I(b).

Despite the petitioner’s allegations that the respondent was alienating the
child from her, the trial court found, and the record supports, that the child’s
relationship with the petitioner “suffered as a result of [her] relentless negative
behavior towards [the child’s] father.” The trial court’s order specifically
discussed the respondent’s relationship with the other child, and its concern that
the respondent “may not be able to provide a healthy environment for [the child].”
Accordingly, the trial court made the respondent’s primary residential
responsibility contingent upon the respondent not physically disciplining the
child and complying with the recommendations of his medical provider.
Furthermore, the trial court required the respondent to authorize his medical
provider to notify the petitioner in the event the respondent failed to comply with
these conditions.

The petitioner argues that “[t]he court further made no findings as to how
awarding primary residential responsibilities to [the respondent], absent
consideration of psychiatric evaluations . . . promoted the best interests of [the
child].” However, the trial court’s order explained its concern about the impact of
the petitioner’s behavior on the child’s best interest and mandated a plan
“intended to provide [the child] with access to the best from both parents as well
as oversight by” the petitioner. Accordingly, we conclude that the trial court did
not fail to apply the RSA 461-A:6, I, factors identified by the petitioner.

We next address the trial court’s denial of the petitioner’s request to
introduce evidence regarding the respondent’s alleged dissipation of more than
$200,000 in marital assets. In divorce cases, the trial court has broad discretion
over the admission of evidence and is not bound by the rules of evidence. In the
Matter of Thayer & Thayer, 146 N.H. 342, 345 (2001). The petitioner states that
“[s]he attempted to introduce copies of the parties’ joint marital bank statements”
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and to “question [the respondent] about the dissipation of these assets.” The trial
court sustained the respondent’s objections because the petitioner had not raised
the claim in her pretrial filings. See Fam. Div. R. 2.21 (“Following the pretrial
conference, the court shall not accept modifications to documents presented at
the pretrial conference unless the modified documents have been exchanged
within a reasonable time before the final hearing. This rule shall be strictly
enforced.”).

The petitioner argues that the pretrial conference report included a
reference to diminution of the marital estate as a factor that might justify an
unequal property division. However, during the hearing the petitioner did not
contest the trial court’s statement that this referred to an issue regarding tax
refunds, and not to the issue she was attempting to raise for the first time at
trial. The petitioner argues that the parties’ pretrial statements indicated that
disputed issues included property division. However, we agree with the trial
court that this did not adequately notify the trial court or the respondent that the
petitioner accused him of dissipating more than $200,000 in marital assets. The
petitioner argues that the respondent had failed to provide her with financial
documents. However, she states that the records she sought to admit were from
joint bank accounts. Therefore, she and the respondent had equal access to
them. Accordingly, we conclude that the trial court sustainably exercised its
discretion in denying her request to introduce this evidence.

We next address the petitioner’s arguments under Family Division Rule
1.25-A. To the extent that the petitioner is arguing that the trial court erred by
denying her motion to compel the respondent’s compliance with Rule 1.25-A, we
note that she did not file the motion until approximately two weeks after she
completed presenting her case to the trial court and only eleven days before the
final day of the hearing. See Fam. Div. R. 1.26(E) (parties have ten days from
filing to respond to motion). We agree with the trial court that the motion was
not timely filed and became moot.

To the extent that the petitioner argues that the trial court erred by not
precluding the respondent from testifying regarding his financial condition as a
sanction for his failure to comply with Rule 1.25-A, we conclude that this
argument is not preserved. The petitioner did not contemporaneously object to
the respondent’s testimony. See In the Matter of Mannion & Mannion, 155 N.H.
52, 54 (2007) (stating generally contemporaneous and specific objection required
to preserve issue for appellate review). The petitioner argues that “[a]
contemporaneous objection was not required to preserve this issue as [she] had,
at that time, a pending Motion to Order Compliance with Rule 1.25-A and the
matter was thus squarely before the trial court.” However, the record that the
petitioner has provided does not show that the motion requested such a
sanction. See id. (stating appealing party bears burden of demonstrating that it
raised its issues before trial forum).
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 Even if this argument were preserved, we conclude that it lacks merit. We
review the imposition of discovery sanctions for an unsustainable exercise of
discretion. In the Matter of Jones and Jones, 146 N.H. 119, 121 (2001). The
trial court could have reasonably concluded that precluding the respondent from
testifying was not a warranted sanction because the petitioner did not comply
with Rule 1.25-A or because she stated in her pretrial statement that there were
no unresolved discovery issues.

Finally, we address the petitioner’s argument that “[i]n precluding [her]
from presenting hearsay evidence while allowing both [the respondent] and the
[GAL] to present such evidence, the trial court prejudiced [her].” The petitioner
does not identify any point at which she objected to the respondent or the GAL
testifying to hearsay. Therefore, we conclude that this issue is not preserved.
See Mannion, 155 N.H. at 54.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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