In the Matter of Amanda Herman and Nathan Adams

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0131, In the Matter of Amanda Herman
and Nathan Adams, the court on December 9, 2016, 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, Amanda Herman (wife), appeals the final decree of the
Circuit Court (Yazinski, J.) in her divorce from the respondent, Nathan Adams
(husband), arguing that the court erred in: (1) awarding the husband primary
residential responsibility for the parties’ two children; (2) “voiding” the
temporary alimony order; and (3) determining her child support arrearage.

The wife first argues that the trial court erred in awarding the husband
primary residential responsibility for the parties’ two children. In determining
parental rights and responsibilities, the court is guided by the best interests of
the child. RSA 461-A:6, I (Supp. 2015). We will not overturn the trial court’s
determination except when there has been an unsustainable exercise of
discretion. In the Matter of Hampers & Hampers, 154 N.H. 275, 281 (2006).
This means that we review the record only to determine whether it contains an
objective basis to sustain the trial court’s discretionary judgment. Id.

The wife argues that the trial court failed to consider the factors set forth
in RSA 461-A:6 for determining the children’s best interest. The factors set
forth in RSA 461-A:6 include the following:

(a) The relationship of the child with each parent and the ability of
each parent to provide the child with nurture, love, affection, and
guidance.
(b) The ability of each parent to assure that the child receives
adequate food, clothing, shelter, medical care, and a safe
environment.
(c) The child’s developmental needs and the ability of each parent
to meet them, both in the present and in the future.
(d) The quality of the child’s adjustment to the child’s school and
community and the potential effect of any change.
(e) The ability and disposition of each parent to foster a positive
relationship and frequent and continuing physical, written, and
 telephonic contact with the other parent, including whether
contact is likely to result in harm to the child or to a parent.
...
(l) Any other additional factors the court deems relevant.

RSA 461-A:6, I. The trial court found that “[t]here has never been any question
that [the wife] is capable of nurturing, loving and showing affection for her
children.” However, the record shows that, by the time of the final hearing, the
children had resided primarily with their father for more than three years. The
wife was previously found to have neglected the younger daughter based upon
a finding that the child failed to thrive in the wife’s care. The wife corrected the
conditions of neglect, and the neglect case was closed.

Rather than focusing upon the neglect finding, however, the trial court
focused upon the parties’ “current behavior and parenting abilities in order to
arrive at an appropriate Parenting Plan which would be in the best interests of
the children.” The court found that the wife “consistently involve[s] medical
providers in issues that would normally be addressed by a parent in the home
environment.” The court also found that “[i]t is likely that [the wife] would
continue her pattern of taking the children to medical providers whether they
need to be seen or not.” In addition, the court found that “the children are
currently doing well in their present residential situation,” and that “they are
safe, happy and healthy in their father’s home and in his care.” Although the
court found that the husband “refuses to encourage a strong and healthy
relationship between the children and their mother,” it found that the wife “is
also unable to pursue or maintain a stable co-parenting relationship.” Based
upon the court’s findings, which directly relate to the RSA 461-A:6 factors, we
conclude that it adequately considered the statutory factors for developing a
parenting plan in the children’s best interest. To the extent that the wife
argues that the trial court erred by not expressly citing the factors under RSA
461-A:6 that it was relying upon, we note that 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 (Supp. 2015) (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 were consistent with the factors set forth in RSA 461-A:6, I).

The wife argues that the court’s findings are not supported by the record.
On appeal, we will affirm the findings and rulings of the trial court unless they
are unsupported by the evidence or legally erroneous. In the Matter of Nyhan
and Nyhan, 147 N.H. 768, 770 (2002). If the court’s findings can reasonably be
made on the evidence presented, they will stand. In the Matter of Peirano &
Larsen, 155 N.H. 738, 749 (2007). The record contains a final report of the
guardian ad litem (GAL), who noted that the father had primary residential
responsibility for the children for years, and who found nothing to suggest that

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the final parenting plan “should be changed from the status quo.” At the final
hearing, the GAL testified that his recommendations were unchanged. The
record also contains correspondence from Dartmouth-Hitchcock Medical
Center, including the hospital’s “no trespass” letter to the wife, supporting the
trial court’s findings regarding the wife’s contentious relationship with the
children’s medical providers. Based upon our review of the record, we
conclude that the court’s findings are supported by the record. See Nyhan,
147 N.H. at 770.

Citing testimony from the wife and her witnesses, the wife challenges a
number of the trial court’s specific factual findings. The husband counters
with testimony supporting the court’s findings. We defer to the trial court’s
judgment on such issues as resolving conflicts in testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence. In
the Matter of Aube & Aube, 158 N.H. 459, 465 (2009). Based upon our review
of the record, we conclude that the court’s findings can reasonably be made on
the evidence presented. See Peirano, 155 N.H. at 749.

The wife next argues that the trial court erred in “voiding” the temporary
alimony order. The trial court is afforded broad discretion in awarding
alimony. In the Matter of Nassar & Nassar, 156 N.H. 769, 772 (2008). We will
not overturn the trial court’s decision absent an unsustainable exercise of
discretion. Id.

The record shows that in December 2012, the trial court issued a
temporary order requiring the husband to pay $400 per month in alimony
starting January 2013. The court denied the husband’s motion for
reconsideration. In context, we construe the temporary order to award alimony
only until the wife obtained gainful employment. See In the Matter of Salesky
& Salesky, 157 N.H. 698, 702 (2008) (interpretation of a trial court order is a
question of law, which we review de novo). In March 2013, the wife moved for
contempt, asserting that the husband had paid $400 in January, but only
$150 in February. She asserted that she needed the alimony “to reimburse her
landlord for unpaid rent while she was unemployed.” The husband, in a
verified objection and motion to terminate alimony, asserted that he
understood that the alimony order “was temporary until [the wife] obtained
employment,” and that the wife was “now employed and no longer in need of
alimony.”

In its final orders, the court found that “there are no arrearages and
nothing further is payable to [the wife].” We assume that the court found that
the wife obtained employment before any additional alimony became due. See
In the Matter of Costa & Costa, 156 N.H. 323, 331 (2007) (We assume that the
trial court made all findings necessary to support its decree.). Although the
wife argues that “[t]here is nothing in the record to indicate when re-
employment occurred,” she has failed to demonstrate that the court’s assumed

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finding is incorrect. See Coyle v. Battles, 147 N.H. 98, 100 (2001) (appellant
has burden to demonstrate error and to provide an adequate record for our
review). Moreover, although the court “voided” the alimony award, nothing in
the record suggests that it required the wife to reimburse the husband for the
alimony he paid. Accordingly, we cannot conclude that the trial court
unsustainably exercised its discretion in its alimony order. See Nassar, 156
N.H. at 772.

Finally, the wife argues that the trial court erred in determining the child
support arrearage. We will not disturb the trial court’s child support ruling
absent an unsustainable exercise of discretion or an error of law. In the Matter
of Laura & Scott, 161 N.H. 333, 335 (2010). The wife argues that the trial
court erred because it reduced her future child support obligation without also
reducing her arrearage. The trial court found that the wife’s increased
parenting time under the final decree, and the likelihood that she will need to
incur additional expenses, constituted special circumstances warranting an
adjustment from the guidelines. See RSA 458-C:5, I (Supp. 2015) (adjustments
to child support for special circumstances). However, this determination did
not require the trial court to find that such special circumstances existed prior
to the final decree; that is, during the time the temporary decree was in effect.
Accordingly, we cannot conclude that the court’s child support ruling
constitutes an unsustainable exercise of discretion or error of law. See Laura,
161 N.H. at 335.

Affirmed.

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

Eileen Fox,
Clerk

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