In the Matter of Sumner Chabot and Brittney Ober

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0119, In the Matter of Sumner Chabot
and Brittney Ober, the court on October 12, 2016, issued the
following order:

Having considered the petitioner’s brief and reply brief, the respondent’s
memorandum of law, and the record submitted on appeal, we conclude that
oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The petitioner, Sumner Chabot (father), appeals a final decree and
parenting plan proposed by the respondent, Brittney Ober (mother), and
approved by the Circuit Court (Cross, R.; Lawrence, J.), in his parenting
petition. He further appeals the Trial Court’s (DalPra, M.; Lawrence, J.) denial
of his motion for reconsideration. He argues that, because he did not receive
actual notice of the hearings due to his failure to notify the trial court of his
change of address, because the parenting plan is, he asserts, “unreasonable,”
and because the trial court did not expressly address or consider the best
interest factors of RSA 461-A:6, I (Supp. 2015), the trial court deprived him of
due process and unsustainably exercised its discretion.

The trial court has broad discretion in matters involving parenting rights
and responsibilities. In the Matter of Miller & Todd, 161 N.H. 630, 640 (2011).
When determining parental rights and responsibilities, the trial court’s
overriding concern is the best interest of the child. Id. RSA 461-A:6, I, codifies
the best interest standard, setting forth specific factors that the trial court is
required to consider. Id.

We have recognized “that a child’s best interests are served when a trial
court has broad discretion to consider all factors bearing on the child’s welfare
and is not compelled to treat any single factor as dispositive of the inquiry.” In
re Name Change of Goudreau, 164 N.H. 335, 338 (2012). Moreover, although
the trial court is required to consider the factors in RSA 461-A:6, I, nothing in
the statute, absent a party’s request, obligates the trial court to issue express
findings of fact relative to those factors. See RSA 461-A:6, VII (requiring trial
court, “[a]t the request of an aggrieved party,” to “set forth the reasons for its
decision in a written order” (Emphasis added.)); cf. In the Matter of Kurowski &
Kurowski, 161 N.H. 578, 598-99 (2011) (observing that the factors considered
by the trial court in resolving a parenting dispute were consistent with the
factors set forth in RSA 461-A:6, I). Rather, we generally assume that the trial
court made all subsidiary findings necessary to support its general ruling,
including a finding that a parenting plan is in the child’s best interest. In the
Matter of Kosek & Kosek, 151 N.H. 722, 725 (2005).

We will not overturn the trial court’s ruling on a parenting petition, or on
a motion for reconsideration, absent an unsustainable exercise of discretion.
Miller & Todd, 161 N.H. at 630; Smith v. Shepard, 144 N.H. 262, 264 (1999);
see also State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable
exercise of discretion standard). This means that we review only whether the
record establishes an objective basis sufficient to sustain the trial court’s
discretionary judgments, and will not disturb its determinations if they
reasonably could have been made. Miller & Todd, 161 N.H. at 640; Lambert,
147 N.H. at 296. To establish that the trial court unsustainably exercised its
discretion, the father must demonstrate that its rulings were clearly untenable
or unreasonable to the prejudice of his case. Lambert, 147 N.H. at 296.

The father was obligated to provide the trial court with his address, and
to notify it of any changes to his address during the case. Fam. Div. R. 2.3(G);
see also State v. Fraser, 116 N.H. 642, 643 (1976) (“Where a defendant has
given directions specifying where notice shall be sent, it is his duty to inform
the [court] of any change in address.”). These requirements were not relaxed
merely because he was self-represented. In the Matter of Birmingham &
Birmingham, 154 N.H. 51, 56 (2006). The fact that a party has failed to receive
notice from a court due to that party’s failure to advise the court of a change of
address does not render the notice defective. Fraser, 116 N.H. at 643.

In this case, the father filed his parenting petition on August 12, 2015,
disclosing a residential address in Greenville. The parties’ child was born two
months earlier, and resided with the mother. With the petition, the father filed
an emergency motion seeking “immediate visitation rights,” claiming that the
mother had not allowed him to see the child since the child’s birth. Although
the trial court denied the emergency motion, it scheduled a temporary hearing
to occur on August 31, 2015. It additionally notified the parties of their
obligation to attend a child impact seminar within forty-five days after service
of the petition, see RSA 458-D:2-:4 (Supp. 2015); Fam. Div. R. 2.10, scheduled
a first appearance to occur on September 21, 2015, see Fam. Div. R. 2.11, and
scheduled a mediation to occur on November 4, 2015, see Fam. Div. R. 2.13.
Following the temporary hearing, at which both parties appeared, the trial
court approved a temporary agreement addressing visitation. The agreement
provided the father “and/or his parents” the right to visit the child for a two-
hour period of time twice per week, and required that “all visits . . . be in the
presence of [the mother] or her mother” until the father and his parents
became “familiar with [the child] and her routine.”

After the temporary hearing, the record reflects that the father failed to
attend a child impact seminar, or the scheduled mediation. Likewise, the
mother asserts, and the father does not dispute, that he failed to attend the

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September 21 first appearance. At some point, the father moved. He did not,
however, notify the trial court of his change of address at that time, and
apparently did not provide the post office with a forwarding address.

The trial court notified the father of a November 30, 2015 pretrial hearing
by sending notice of the hearing to his address of record. At the hearing, which
the father did not attend, the mother represented that she had sent the father
an e-mail an hour before the hearing “reminding him” of it. She further
represented that she thought he had moved, but had failed to inform the court.
According to the mother, the father had been “pretty disinterested,” and she
asserted that he “goes to the visits [with the child] and plays with his cell
phone and then he leaves. So I’m not sure that this is a priority for him.” The
trial court then indicated that it would schedule a final “default” hearing for
December 21, 2015. In the pretrial conference report, the trial court identified
the “father’s lack of active involvement with child” as a factor justifying sole
decision-making responsibility. The trial court additionally “advised” the father
in the pretrial conference report that “his failure to appear at the final hearing
and failure to demonstrate good cause for his default at the pretrial conference
will result in the granting of mother’s proposed final orders without his input.”

The trial court again mailed notice of the December 21 final hearing to
the father’s address of record. The father did not attend the hearing, and at
the mother’s request, the trial court approved the mother’s proposed final
decree and parenting plan. Pursuant to the parenting plan, the mother was
granted sole decision-making authority and primary residential responsibility.
The father was granted parenting time with the child “as the parties agree,” but
was required to exercise his parenting time at the mother’s home with the
mother present “until [he] is able to meet [the child’s] physical, emotional, and
medical needs.” Additionally, the parenting plan provided that “[i]nstead of
RSA 461-A:12 [(Supp. 2015)], this plan shall include the following relocation
details: [the mother] shall be entitled to move [the child] as long as she provides
[the father] with her address within 7 days of moving.” Finally, the trial court
imputed income to the father of $800 per week based upon the mother’s
representation that he had recently told her that he had earned that amount in
a week, and entered a uniform support order requiring that he pay $100 per
week in child support, imposing a “medical support reasonable cost obligation”
of $80 per month, and requiring that he contribute 50% toward the child’s
uninsured medical expenses.

The father moved for reconsideration, requesting that he be granted joint
decision making authority and equal residential responsibility, that relocation
of the child be governed by RSA 461-A:12, and that his child support obligation
be reduced to $0. In the motion, he asserted that he had “missed the first
hearing” because his address had changed, that the mother had notified him
that he had “missed that first appointment,” and that he “immediately
attempted to fix this by going to the DMV because [he] believed [his] legal

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address was tracked by [his] license.” Because he had mistakenly believed that
the trial court would learn of his new address through this action, the father
claimed that he “missed more notices.” The father faulted the mother for
allegedly continuing to “send all notices to the bad address” after he had
notified her of his move, and for “never inform[ing] [him] of any other
appointments or court dates.” According to the father, he “ha[d] emails to
substantiate” that the mother “intentionally deceived [him] all along so [that he]
would not know about these court dates.” However, the record does not reflect
that he submitted the purported e-mails with his motion.

The mother objected. She disputed that the father had ever advised her
of his address change. However, she asserted that the father had provided her
with his e-mail address, and that her counsel had sent him all of her motions
and proposed orders by way of e-mail. Moreover, the mother alleged that
during the father’s parenting time, he had “shown very little interest in” the
child, had “never fed or changed” the child, had “barely even held” the child,
and had “tend[ed] to either play on his phone or talk to whoever happen[ed] to
be present.” According to the mother, the father “ha[d] acknowledged that he
doesn’t have a lot of time to devote to” the child. Because, according to the
mother, the father was “uncomfortable and clearly not bonded with” the child,
the mother argued that an equal parenting schedule would not be in the child’s
best interest. The trial court denied the motion, noting that the father may “file
pleadings seeking modification.” This appeal followed.

At the outset, we note that, at no point in his motion for reconsideration
did the father argue that the trial court had deprived him of due process or of
his constitutional right to parent his child. The trial court must have had the
opportunity to consider any issues asserted by the appellant on appeal; thus,
to satisfy this preservation requirement, any issues which could not have been
presented to the trial court prior to its decision must be presented to it in a
motion for reconsideration. Fam. Div. R. 1.26(F); see N.H. Dep’t of Corrections
v. Butland, 147 N.H. 676, 679 (2002). Because the father did not argue in the
trial court that it had deprived him of his constitutional rights, he has failed to
preserve a constitutional challenge on appeal. See State v. Blackmer, 149 N.H.
47, 48 (2003). We note, however, that even if the father had preserved a
constitutional argument, the record unequivocally establishes that his failure
to receive the trial court’s notices was solely attributable to his neglect in failing
to notify the trial court of his change of address. Accordingly, the trial court’s
notices were not defective. See Fraser, 116 N.H. at 643.

Upon this record, we cannot say that the trial court unsustainably
exercised its discretion by approving the proposed parenting plan. The
mother’s representations establish that, during his parenting time, the father
was not engaged with the child, and that he had not yet bonded with the child.
Moreover, the father’s lack of participation in his own case, including his
failures to attend a child impact seminar or the scheduled first appearance and

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mediation, in addition to his failures to notify the trial court of his address
change even after learning that he had missed a hearing, corroborated the
mother’s assertion that the father had shown little interest in developing a
relationship with his child. Under these circumstances, the trial court’s
assumed findings, see Kosek, 151 N.H. at 725, that it was in the child’s best
interest to limit the father to parenting time at the mother’s home at times to
which the parties agree, and to grant the mother sole decision-making
responsibility, were reasonably supported by the record and consistent with
RSA 461-A:6, I. See, e.g., RSA 641-A:6, I(a)-(c) (trial court may consider each
parent’s existing relationship with the child and abilities to provide the child
with nurture, love, affection, and guidance, to assure that the child receives
adequate food, clothing, shelter, medical care, and a safe environment, and to
meet the child’s developmental needs). Likewise, absent a showing that the
father was prepared to care for the child, the trial court reasonably could have
found that it was in the child’s best interest to provide the mother with greater
flexibility to relocate the child than is allowed under RSA 461-A:12. We note
that RSA 461-A:12 applies only if an “existing parenting plan, order on
parental rights and responsibilities, or other enforceable agreement . . . does
not expressly govern the relocation issue.” RSA 461-A:12, I.

Nor did the trial court unsustainably exercise its discretion by denying
the father’s motion for reconsideration. The father offered no legitimate excuse
for failing to notify the trial court of his change of address. Although he
claimed that the mother had purposely sent her pleadings to an invalid mailing
address and failed to notify him of the hearings so as to conceal them, the
mother disputed these assertions, and her counsel represented that she in fact
had e-mailed all pleadings to the father. Moreover, it was the father’s
obligation to notify the trial court of his changed address. The father failed to
do so even after, by his own admission, the mother had advised him that he
had failed to attend a hearing.

We emphasize, as did the trial court, that the father is free to seek
modification of the parenting plan, see RSA 461-A:11 (Supp. 2015), or to
request that the trial court enforce his rights under it. Although the father is
correct that RSA 461-A:11 limits the circumstances under which he may be
entitled to modification, see In the Matter of Muchmore & Laycox, 159 N.H.
470, 473-74 (2009), the statute provides some measure of relief, and the trial
court has authority to enforce its own order.

Affirmed.

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

Eileen Fox,
Clerk

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