In the Matter of Giovanni Santiago and Meghan Morrissey

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0572, In the Matter of Giovanni Santiago
and Meghan Morrissey, the court on August 16, 2017, 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 respondent, Meghan Morrissey (mother), appeals an order of the
Circuit Court (Chabot, J.) approving a parenting plan granting primary
residential responsibility to the petitioner, Giovanni Santiago (father), for their
two children. See RSA 461-A:6 (Supp. 2016). She contends that the trial court
erred, in applying RSA 461-A:12 (Supp. 2016), by finding that: (1) the father had
a legitimate purpose for relocating to New York State prior to the issuance of any
parenting orders; (2) the father’s relocation was reasonable in light of that
purpose; and (3) the relocation was in the children’s best interest. We assume,
without deciding, that RSA 461-A:12 applies in this case and that the mother’s
arguments are preserved. See In the Matter of Heinrich & Curotto, 160 N.H. 650,
654-55 (2010) (stating applicability of RSA 461-A:12 is not limited to cases in
which final parenting orders have already been issued).

The mother further contends that the trial court committed plain error and
violated her constitutional rights by not “properly” ruling on her motion that it
appoint a guardian ad litem (GAL). See RSA 461-A:16, I (2004).

We first address the mother’s arguments challenging the trial court’s
application of RSA 461-A:12. In this case, the father moved to Cohoes, New York
after he filed his parenting petition, but before the trial court had issued
temporary orders. He had been living there for a year prior to the final hearing.
Pursuant to a temporary order, the parents had approximately equal parenting
time, while the mother had primary residential responsibility. At the final
hearing, the father sought, and the trial court granted, primary residential
responsibility, thereby relocating the children from the residence where they had
spent at least 150 days a year. See RSA 461-A:12, II (providing that RSA 461-
A:12 applies “to the relocation of any residence in which the child resides at least
150 days a year”).

Pursuant to RSA 461-A:12, a parent seeking to relocate has the initial
burden of demonstrating, by a preponderance of the evidence, that the relocation
is for a legitimate purpose and is reasonable in light of that purpose. RSA 461-
A:12, V; In the Matter of Pfeuffer & Pfeuffer, 150 N.H. 257, 259-60 (2003). If the
parent meets this burden, the burden shifts to the parent opposing the relocation
to prove, by a preponderance of the evidence, that relocating is not in the child’s
best interest. RSA 461-A:12, VI; Pfeuffer, 150 N.H. at 260.

When determining residential responsibility for children, the trial court’s
overriding concern is the child’s best interest. In the Matter of Martin & Martin,
160 N.H. 645, 647 (2010). In reaching such a decision, the trial court has wide
discretion, and we will not overturn its determination unless it has unsustainably
exercised its discretion. Id. This means that we review the record only to
determine whether it contains an objective basis to sustain the trial court’s
judgment. Id. The trial court’s determination depends to a large extent upon the
firsthand assessment of the witnesses’ credibility, as well as the parents’
character and temperament, and its findings are binding upon this court if
supported by the evidence. Id.

We first address whether the trial court erred by finding that the father
carried his prima facie burden. The father testified that his purpose in relocating
was to obtain support from the family of his current domestic partner, who is the
mother of his youngest child, to find work, and to make a better life for his
children than he had had in New Hampshire. The trial court found, and the
record supports, that: (1) the support the father receives from his partner’s
family “differs greatly from what his mother and brother could provide in New
Hampshire”; (2) he had found “full-time employment with health insurance
benefits” that “affords him flexibility which has helped with his parenting time”;
and (3) he had researched the schools in New York “and compared them to those
in Manchester” where the mother lives. The father further testified that he
moved because he saw “a lot of potential” in New York and he was “going
nowhere” in New Hampshire.

The mother argues that, in determining the legitimacy of the father’s
purpose in moving, the trial court should have focused exclusively upon what he
knew prior to his move, rather than upon his circumstances at the time of the
final hearing. However, she does not explain why, given the particular facts of
this case, the trial court should have ignored the benefits resulting from the
father’s move.

The mother argues that being close to his partner’s family and its support
was not a legitimate purpose because they “are [third] parties without significant
ties to the . . . children.” However, she does not cite, nor are we aware of, any
authority that a legitimate purpose must be related to the children. Cf. Tomasko
v. DuBuc, 145 N.H. 169, 171 (2000) (identifying a significant employment
opportunity as a legitimate purpose).

The mother next argues that relocating to New York was not reasonable in
light of the father’s purposes. She contends that he could have found a
comparable job in, or closer to, New Hampshire. However, the father testified

2
that he anticipated “multiple job opportunities that might happen through [his
partner’s] family.” Thus, the trial court could have reasonably inferred that he
obtained his job through his partner’s family’s influence, which would not have
been available in another location. To the extent that the mother argues that
moving to New York did not place the father closer to his own extended family,
this was not his purpose. We note that the father testified that his mother
receives substance abuse treatment.

To the extent that the mother argues that the father did not obtain the trial
court’s approval for, or her consent to, his move and did not notify her well in
advance, she does not explain why he was required to do so. See RSA 461-A:12,
II. To the extent that she argues that the trial court did not make findings to
support its conclusion that New York was a reasonable location for the father’s
purpose, we assume that the trial court made all subsidiary findings necessary to
support its general ruling. See Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586 (2004).

Accordingly, we conclude that the record contains an objective basis to
sustain the trial court’s judgment that the father relocated for a legitimate
purpose and to a location that was reasonable in light of that purpose. See
Martin, 160 N.H. at 647.

We next address whether the trial court erred by finding that the mother
did not sustain her burden to show that relocating the children was not in their
best interest. In determining what is in a child’s best interest, the trial court
considers the following factors: (1) each parent’s reasons for seeking or opposing
the move; (2) the quality of the relationships between the child and each parent;
(3) the impact of the move on the quantity and quality of the child’s future
contact with the noncustodial parent; (4) the degree to which the custodial
parent’s and child’s life may be enhanced economically, emotionally, and
educationally by the move; (5) the feasibility of preserving the relationship
between the noncustodial parent and child through suitable visitation
arrangements; (6) any negative impact from continued or exacerbated hostility
between the parents; and (7) the effect that the move may have on any extended
family relations. Tomasko, 145 N.H. at 172. The trial court should also consider
the interests of the new family unit as a whole. Id.

No one factor is dispositive, nor are these the exclusive factors bearing
upon a determination of a child’s best interest. Pfeuffer, 150 N.H. at 260. While
a trial court is not required to consider each factor individually or to make
specific findings on each factor, it should not rely upon one factor to the
exclusion of the others. See id. We decline the mother’s request that we review
the trial court’s determinations regarding these factors de novo. See id. at 259
(stating that we review trial court findings on Tomasko factors for unsustainable
exercise of discretion).

3
 In this case, the trial court “genuinely question[ed] whether Mother would
support, endorse and preserve the children’s relationships with Father, should
she remain the custodial parent.” Cf. In the Matter of Miller & Todd, 161 N.H.
630, 641 (2011) (stating that “a sustained course of conduct by one parent
designed to interfere in the child’s relationship with the other casts serious doubt
upon the fitness of the offending party to be the custodial parent” (quoting
Renaud v. Renaud, 721 A.2d 463, 466 (Vt. 1998))).

The trial court’s concern was supported by the testimony of the father and
his partner regarding the various ways in which the mother had not supported
the father’s parenting time, including: (1) screaming at him in front of the
children; (2) blocking his telephone access to the children when she was angry;
(3) calling the police to check on the children when they were with the father’s
partner; (4) placing the children in counseling without consulting the father; (5)
not sharing the transportation for the father’s parenting time; and (6) taking the
children away without telling the father in advance when she knew that he was
making the three-hour drive to collect them for his scheduled parenting time.
The trial court found that the father “is more motivated to do what is in the
[children’s] best interest,” including supporting their relationships with the
mother and with extended family in New Hampshire.

The mother argues that “neither party communicates well with the other.”
However, the trial court “attribut[ed] a fair amount of this difficulty to Mother, as
she acts unilaterally, often making decisions without regard to Father and his
role as a parent.”

Furthermore, the trial court found that the father had “succeeded in
enhancing his life economically and emotionally by moving to New York” and that
the children’s “lives would be similarly enhanced economically, emotionally and
educationally by relocating to New York.” The trial court noted “the evident
instability in Mother’s life in the form of changes in housing, inconsistent familial
relations, and questionable friendships/associations.”

The mother argues that the children’s lives will not be enhanced by
relocating to the father’s home. She contends that the father’s partner’s family
would cease to support the children if the partner and the father separated.
However, the children’s half-sibling is related to the partner’s family, and the
partner testified that her extended family had welcomed the children “[w]ith open
arms.” The mother contends that there is no evidence that the father’s area
schools are better than those where she lives. However, the father testified,
without objection, that he had examined statistics regarding the schools in both
areas, that the schools where he now lives have better student-teacher ratios,
and that the only category in which the mother’s school excels is “diversity.”

4
 The mother argues that the trial court’s finding that her living situation
has been unstable is not supported because “the record shows she has been
living in the same apartment since 2012.” However, the mother testified that she
moved into her current apartment in May 2016, approximately three months
before the hearing. The mother testified that she filed a domestic violence
petition against her mother, in which she “may have fabricated a little,” but that
she regularly leaves the children in her mother’s care. We note that the final
parenting plan prohibits the children being left alone with the maternal
grandmother.

The mother testified that she believed that her best friend had been
arrested only once and that she was sure that another friend had a criminal
record because “[s]he has a drug past like everybody else.” Although the mother
testified that she last used drugs in January 2016, the father testified that in
June 2015 the maternal grandmother had told him that the mother’s “drinking
and drugging was escalating, spiraling.” The mother acknowledged that on one
occasion she took one of the children with her to purchase drugs. The father
testified, and the mother confirmed, that on another occasion she was so
intoxicated that she opened a car door into her face, possibly breaking her own
nose.

The mother testified that she struck the older child in the mouth to
discipline her, making her nose bleed.

The mother argues that she lacks “the financial ability to travel to New
York on any regular basis.” However, the trial court ordered that the parents
exchange the children in West Chesterfield, New Hampshire. To the extent that
the mother argues that she cannot afford to attend the children’s events in New
York, we note that she testified that she goes white-water rafting and sky-diving.

The mother argues that the parenting plan “entirely changed the character
of [her] parenting status, from the historically custodial parent to [the] non-
custodial parent.” However, the trial court found that “because it is
approximately a three (3) hour drive between Father’s and Mother’s homes, . . . it
is feasible to preserve the [children’s] relationships with the non-custodial parent
through suitable visitation.” We note that the mother does not challenge the trial
court’s finding, pursuant to RSA 461-A:6, that giving the father primary
residential responsibility is in the children’s best interest.

The mother expresses various concerns about the impact of relocating the
children, including that: (1) they will have to spend too much time driving; (2)
the father makes her wait to speak with the children until it is convenient for
them; and (3) maintaining her parenting time will become financially difficult if
either parent becomes unemployed. She further argues that she is willing to take
a drug test to demonstrate that she is no longer abusing drugs. However, none
of these concerns compelled the trial court to reach a different decision.

5
 On this record, we conclude that the trial court did not unsustainably
exercise its discretion in finding that the mother had not met her burden to show
that relocating the children was contrary to the children’s best interest. See
Martin, 160 N.H. at 647.

We next address whether the trial court committed plain error by not
“properly” ruling on the mother’s motion to appoint a GAL. See In the Matter of
Brownell & Brownell, 163 N.H. 593, 602 (2012) (describing plain error rule). The
mother filed her motion on February 12, 2016. She did not request a hearing.
By notice of decision dated March 22, 2016, the trial court denied the motion “at
this time,” but indicated it could be raised again at the pre-trial conference,
which had already taken place on March 3. The pre-trial conference report
issued on March 22 stated that the parties were returning to mediation. See
Fam. Div. R. 2.15 (“Absent good cause shown, a guardian ad litem shall not be
appointed while the parties are engaged in mediation.”). Thus, it reserved ruling
on the motion for a GAL until the final hearing.

The mother argues that the trial court violated her right to procedural due
process because it ignored her “interest in having her motion ruled upon” and
prevented her from seeking reconsideration. However, the trial court denied her
motion on March 22, after which she could have moved for reconsideration or
renewed her motion later; the record does not reflect that she did either. To the
extent that the mother argues that reserving the motion at the pre-trial
conference until the final hearing was “nonsensical,” we disagree. The trial court
could have decided, after hearing all the evidence at the final hearing, that a
GAL’s input was necessary to enable it to reach a decision. To the extent that the
mother argues that the trial court should have granted the motion, under RSA
461-A:16, I (2004), whether to appoint a GAL is within the trial court’s discretion.
In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007). On this record, we
cannot say that the trial court unsustainably exercised its discretion.
Accordingly, we find no error, plain or otherwise. See Brownell, 163 N.H. at 602
(no plain error when no error).

Affirmed.

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

Eileen Fox,
Clerk

6