In the Matter of Gina Bundza and Brian Bundza

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0173, In the Matter of Gina Bundza and
Brian Bundza, the court on April 24, 2019, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that a formal written opinion is unnecessary in this case. The
respondent, Brian Bundza, appeals an order of the Circuit Court (Alfano, J.)
awarding the petitioner, Gina Williams, formerly Gina Bundza, sole decision-
making and residential responsibilities for the parties’ minor child, ordering,
among other things, that the father have no contact with the child, requiring
that the father pay all attorney’s fees and other litigation expenses, and
forbidding the father from posting anything about the mother or the child on
social media. The father argues that the order must be vacated for several
reasons including that the court did not provide constitutionally adequate
notice. We vacate and remand.

The following facts were found by the trial court or are supported by the
record. The parties have one child born in January 2009. The parties divorced
in August 2011. Their initial parenting plan awarded them joint decision-
making responsibility and equal residential responsibility.

Before the parties divorced, the child’s pediatrician reported to the New
Hampshire Division for Children, Youth and Families (DCYF) that the mother
suspected that the child had been sexually abused at a daycare facility, and
DCYF reported the same to the Rochester Police Department. The police
investigated and concluded that no “foul play or any type of crimes” had been
committed against the child.

In January 2013, the court granted the mother’s ex parte motion seeking
“full parental rights and responsibilities” after the father was arrested for
aggravated assault. In March 2014, the mother filed a petition to change the
parenting plan, requesting “sole rights and responsibilities” because she was
concerned that the child “could witness or experience domestic violence” while
with the father. In August 2014, before the court had ruled on the mother’s
motion to modify, the father was incarcerated due to imposition of a suspended
sentence. At that time, he also faced new misdemeanor charges of simple
assault and stalking. As a result of his incarceration and pending charges, the
Trial Court (Patten, J.) temporarily suspended the father’s parenting time,
stating, however, that it “anticipates restoring his parenting time in some
capacity . . . as soon as his circumstances are stabilized.”
 In October 2014, after the child disclosed in therapy that the father had
perpetrated sexual abuse, a medical doctor examined the child and found
physical evidence of abuse. The doctor could not determine whether the father,
or someone else, committed the abuse.

From January 2015 until March 2016, the father had weekly, supervised
parenting time at a Parenting Support Center. In March 2016, the court
temporarily suspended his parenting time, stating that “[w]hile it is far from
clear that father committed the abuse, something clearly happened to [the
child] that is causing [the child] distress.” It reasoned that if the “father
sexually abused [the child], their continued ‘visits’ could indeed be causing [the
child] terrible psychological and emotional harm. If father did not abuse [the
child], a temporary suspension of their ‘visits,’ while unfortunate, should cause
no lasting harm to their relationship.” The court ordered a “final hearing on
the parenting issues in approximately 90 days.”

In June 2016, after DCYF closed its assessment in the case as
“Unfounded,” the court held a “final hearing on mother’s Motion to Modify.”
The mother argued that the parenting plan should be modified pursuant to
RSA 461-A:11, I(c), which allows a court to modify a permanent order
concerning parental rights and responsibilities if “the court finds by clear and
convincing evidence that the child’s present environment is detrimental to the
child’s physical, mental, or emotional health, and the advantage to the child of
modifying the order outweighs the harm likely to be caused by a change in
environment.” RSA 461-A:11, I(c) (2018); see also Black’s Law Dictionary 674
(10th ed. 2014) (defining “clear and convincing evidence” as “[e]vidence
indicating that the thing to be proved is highly probable or reasonably certain”).
Following the hearing, in July 2016, the Trial Court (Foley, J.) approved a
detailed order recommended by a Marital Master (Cross, M.) that set forth the
evidence in the case, some of which suggested that the father had sexually
abused the child, and some of which suggested that the mother may have
influenced the child to “‘remember’” the father’s abuse. The court concluded
that, although it found credible and convincing evidence that the child had
been sexually abused by someone, the evidence fell “short of proving it highly
probable or reasonably certain” that the father was the perpetrator. The court
observed that if it prevented the child from seeing the father without sufficient
evidence that the father had perpetrated the abuse, the father would have “lost
his parental rights without the due process that attaches to a child protection
case or criminal prosecution. In effect, his parental rights would be suspended
even though he has not been charged with or convicted of . . . abuse.” The
court then awarded the father weekly, supervised visitation time of gradually
increasing length, and ordered a future review hearing with the “hope . . . that
a longer-term parenting schedule can be developed that will help end this
active litigation.”

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 In December 2016, the Trial Court (Maloney, J.) stated after a review
hearing that it was “not convinced” that visitation presented a “continuing
danger” to the child and ordered continued weekly, supervised parenting time
between the father and the child.

In December 2017, the Trial Court, (Alfano, J.) approved an order
recommended by a Marital Master (Cross, M.) concluding that the child’s “best
interests require the ‘normalization’ of [a] relationship with father.” At that
time, the court had a report from Dr. Mart, a forensic psychologist, that opined
that the child’s statements suggesting abuse by the father “are the product of
suggestive questioning and techniques by [the] mother and by [the child’s
therapist].” The report stated that the child “has no independent recollection of
being abused by [the] father, and the investigations of possible abuse were not
triggered by a disclosure by [the child] but were the product of a combination of
confirmatory bias on the part of [the child’s mother] and [the therapist]
combined with suggestive questions, statements and techniques.” Mart
recommended that “any limitations on [the father’s] contact with [the child]
which [are] predicated on his having sexually abused [the child] should be
removed, and decisions regarding custodial time should be made on the basis
of parenting ability and parent-child fit.” The guardian ad litem (GAL)
supported Mart’s recommendation that the father’s parenting time no longer be
supervised and that the parenting schedule be based on the parties’ and the
child’s schedules and the parties’ respective parenting abilities. The court
concluded that Mart’s “evaluation was comprehensive, well-reasoned, and
consistent with the evidence the court has heard in the past several hearings.”
The court then restored the father’s joint decision-making authority,
temporarily awarded him increased parenting time, and ordered that a final
hearing be scheduled. Days later, the court sent the parties a written notice
stating that a final hearing on “BF PETITION #123” would take place on
February 14, 2018. Prior to the hearing, both parents and the GAL developed
proposed parenting plans requesting joint decision-making and approximately
equal residential responsibility.

On February 14, 2018, Judge Alfano started the hearing, at which both
parties were self-represented, by asking the mother to explain “what you want
me to order and why?” The mother answered that she had a proposed
parenting plan and that she was “asking for equal time.” The court responded:

[L]et me back up for a minute. And I want to be clear about
one thing. We’re starting from scratch here. . . . [S]o if I believe
your allegations, I’m not bound by anything else. . . . I can award
you what you ask for, sole. Okay? So if you want sole, you should
ask for sole. . . . [I]f you think that’s in [the child’s] best interest,
we’re not in the middle of a case. We’re really at the beginning
because this is a final hearing; does that make[] sense?

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The mother replied, “I do think that sole decision making would [be] in [the
child’s] best interests. . . . However, I’m understanding of the fact that
everybody wants to move forward and for [the child’s] sake, it might be best
that we have shared.” The court asked if the mother believed that the child
was sexually molested by the father, and the mother answered: “All of the
information points to that.” The court responded: “Yep. So if that’s your
conclusion, do you want sole residential and sole decision making?” The
mother replied: “I think it would be best for [the child] for me to make the
decisions.”

During the hearing, the GAL objected to the mother’s characterization of
a portion of the GAL’s report as “pure conjecture”; however, the court overruled
the objection on the basis that the GAL was not a party to the case because the
legislature had changed the governing statute. See RSA 461-A:16 (2018)
(amended 2018). The GAL later testified as a witness. During the father’s
testimony, the court questioned him about his history of domestic violence
against third parties.

Following the hearing, the court issued the order that is now on appeal.
The court found “by a preponderance of the evidence, that Father has likely
sexually abused [the child] on more than one occasion” and that “Father had
done significant harm . . . by sexually abusing [the child] and then denying
that he did so.” The court concluded that the GAL’s recommendation that the
parents share decision making and residential responsibilities was not in the
child’s best interest. The court also rejected Mart’s report for failing to meet
the standards required for an expert report under RSA 516:29-a. See RSA
516:29-a (2007). The court found it troubling that the report did not mention a
February 2015 letter from the child’s therapist detailing the child’s accusation
that the father had perpetrated sexual abuse.

Based upon its findings, the court awarded the mother sole decision-
making and residential responsibilities and ordered that the father “have no
contact with Mother or . . . child directly or indirectly.” It ruled that “when and
if” the child decides to have contact with the father, the mother should file a
motion with the court, but “[o]therwise, there shall be no contact between
Father and [the child].” The court also ordered that the father have no contact
with the child’s school, teachers, doctors, or counselors and ordered him not to
“post anything about [the child] or [the] Mother on social media.” The court
reallocated all past, present, and future GAL expenses to the father. It also
awarded the mother attorney’s fees on the grounds that “this litigation was the
result of Father’s bad faith and unreasonable conduct.” The court denied both
the father’s and the GAL’s motions to reconsider. This appeal followed.

On appeal, the father argues that the trial court made several errors that
require us to vacate the February 14, 2018 order. He argues that “[t]he issues
on appeal primarily stem from the Court’s improper interference with the

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parties’ agreement to share decision making and equal or approximately equal
parenting time.” He asserts that “despite a standing Order and agreement, the
Court from the bench improperly influenced [the mother] into seeking sole
decision making and sole residential responsibility.” He contends that “[t]his
abuse of process turned the agreement of the parties on its axis without notice
to anyone, including the Guardian ad Litem” and that the “result effectively
terminated [his] parental rights.”

First, the father argues that the trial court violated his right to a properly
noticed hearing when it awarded sole decision-making and residential
responsibility to the mother on the basis that he had sexually abused his child.
He asserts that, based on previous orders from the court and the parties’
proposed parenting plans, he “had no notice, never mind adequate notice, that
the Court would consider sole decision making at the February 14, 2018
hearing.” He further contends that the trial court was precluded from
considering allegations that the father had sexually abused the child because
that issue had been previously — and finally — litigated more than 18 months
earlier at the June 2016 hearing, after which “the only issue for the Court’s
consideration, was the detailed and anticipated expansion of the [father’s]
parenting time.”

Next, he argues that the court unsustainably exercised its discretion,
and exceeded its statutory authority, when it modified the parenting plan in
the absence of sufficient evidence that any of the circumstances set forth in
RSA 461-A:11, I exists. See RSA 461-A:11, I. He asserts that the “only
‘evidence’ that the court had to support” its order “was the evidence that the
court created,” and that “[a]side from the Court’s manufactured and erroneous
adjudication of abuse, there are no facts or testimony in evidence to support
the award of sole residential and decision making to [the mother].”

Third, the father asserts that the trial court erred as a matter of law
when, on the basis that the legislature had “changed the statute,” it prevented
the GAL from fully participating in the hearing, and denied the GAL’s motion
for reconsideration. He asserts that, because the legislature did not pass the
new statute until June 2018, and the revised law did not go into effect until
January 2019, see Laws 2018, 230:1, the trial court committed “judicial error,
which, at the very least demonstrates a substantive misunderstanding of the
pendency of legislation and may even amount to a blatant disregard for due
process.”

Fourth, the father argues that the trial court unsustainably exercised its
discretion in ordering the father to pay attorney’s fees, GAL fees, and other
litigation expenses. He asserts that, because the mother had not requested
that the father pay her attorney’s fees and litigation expenses, and because the
hearing notice did not suggest that the issue would be litigated, the court’s
allocation of fees must be vacated. He further contends that there are no facts

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in evidence to support the trial court’s conclusion that the father acted in “bad
faith.”

Fifth, the father asserts that the trial court violated his “most basic rights
to due process” because it effectively terminated his parental rights without
applying the “procedural and burden-of-proof protections” required by the
State and Federal Constitutions and New Hampshire statute. See N.H. CONST.
pt. I, art 2; U.S. CONST. amend XIV; RSA ch. 170-C (2014). He contends that
“[t]he risk of erroneous deprivation of [his] constitutionally protected interest
was exacerbated by the fact that the Court overlooked the parties’ agreement
and forced [him] to carry on with a hearing on issues that were not
appropriately before the Court.”

Sixth, the father argues that the trial court erred when it considered his
domestic violence history, which did not involve the mother or the child,
because New Hampshire law does not permit consideration of “abuse or
behavior that has no impact on the relationship between the child and parent.”
See RSA 461-A:6, I(j) (2018) (stating that the court should be guided by the
best interests of the child, which include “[a]ny evidence of abuse, as defined in
RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child
and on the relationship between the child and the abusing parent”).

Finally, the father argues that the trial court lacked authority to restrict
his ability to make statements on social media. He asserts that there was no
“evidence or testimony that social media had been used in a way that was
harmful to the child.” He contends that the prohibition constitutes an
unconstitutional “prior restraint on free speech” because it prohibits him “from
speaking in the modern public square” and “forecloses his ability to engage in
the legitimate exercise of First Amendment Rights.” See N.H. CONST. pt. I, art.
22; U.S. CONST. amend. I.

When determining matters of parental rights and responsibilities, a trial
court’s overriding concern is the best interest of the child. In the Matter of
Miller & Todd, 161 N.H. 630, 640 (2011). The trial court has wide discretion in
matters involving the allocation of parental rights and responsibilities. Id. We
will not overturn a trial court’s modification of an order regarding parental
rights and responsibilities unless it clearly appears that the court
unsustainably exercised its discretion. In the Matter of Muchmore & Jaycox,
159 N.H. 470, 472 (2009). We consider 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 have been
made. In the Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). The
trial court’s discretion necessarily extends to matters such as assigning weight
to evidence and assessing the credibility and demeanor of witnesses. Id.
Conflicts in the testimony, questions about the credibility of witnesses, and the
weight assigned to testimony are matters for the trial court to resolve because

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resolution of the best interests of a child depends to a large extent upon the
firsthand assessment of the credibility of witnesses. Id. Findings of the trial
court are binding upon this court if supported by the evidence. Id. To the
extent an appealing party argues that the trial court committed error involving
questions of law, we review such issues de novo. Id.

We first consider the father’s notice arguments. He asserts that based
on “the hearing notice, the prior orders and the parties’ agreement, a
reasonable person would not have been fairly informed” that the February 14,
2018 hearing would include adjudication of whether the mother should receive
sole decision-making or sole residential responsibility, adjudication of whether
the father had sexually abused the child, and allocation of attorney’s fees and
other litigation expenses. He contends that after the July 2016 order, “the only
issue for the Court’s consideration, was the detailed and anticipated expansion
of the [father’s] parenting time.” He argues that had he known that

the Court would ignore prior orders and that the hearing might
result in a virtual abrogation of his parental rights due to
erroneous findings of abuse, he would have prepared witnesses
and evidence regarding issues such as his character. He would
have subpoenaed expert witnesses regarding his non-involvement
in the alleged sexual abuse, brought copies of the Orders relative
to the prior adjudication that the Court clearly overlooked, and
brought documentation of the satisfactory development of the child
during the times he was engaged as a parent. Whatever the nature
of the evidence he might have produced, he would have been
prepared to contest the issue.

He asserts that the trial court’s “abuse of process” violated his due process
rights because it “turned the agreement of the parties on its axis without notice
to anyone, including the Guardian ad Litem.”

The mother counters with two arguments: 1) that the trial court actually
premised its order on its determination that the father was not credible, not on
its conclusion that the father sexually abused the child; and, 2) that the notice
the father received was adequate because he received “actual notice of the Final
Hearing in December 2017” and had sixty days to prepare. She further
appears to assert that since 2013, when the court first ordered that the
parenting plan be changed, the father was on notice that the parenting plan
may be altered.

We disagree with the mother’s interpretation of the trial court order. See
In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (explaining that
the interpretation of a trial court order presents a question of law for this court,
which we review de novo). We agree that the court concluded that the father’s
testimony was not credible and that the trial court has discretion to assess the

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credibility and demeanor of witnesses. See Kurowski, 161 N.H. at 585.
However, the trial court premised its order, at least in large part, on its
conclusion “that by a preponderance of the evidence, that Father has likely
sexually abused [the child] on more than one occasion. For purposes of this
matter, it is clear that [the child] was sexually abused by [the] Father.”
Accordingly, we must analyze whether the father received constitutionally
adequate notice that the issue of whether he had sexually abused the child
years earlier would be relitigated at the February 14, 2018 hearing.

We address the father’s due process claim under the State Constitution
and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226,
231-33 (1983). Under both Part I, Article 15 of the New Hampshire
Constitution and the Fourteenth Amendment of the Federal Constitution, “an
elementary and fundamental requirement of due process is notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections.” Douglas v. Douglas, 143 N.H. 419, 423 (1999) (quotation omitted).
Reasonable notice means notice that is “reasonably calculated to give the
[litigant] actual notice of the issue and the hearing.” Duclos v. Duclos, 134
N.H. 42, 44-45 (1991) (quotation omitted).

The actual notice that the Circuit Court sent the parties in December
2017 stated that a final hearing on “BF PETITION #123” would take place on
February 14, 2018. It is our understanding, which it appears the parties
share, that “BF PETITION #123” is the mother’s March 2014 petition to change
the parenting plan due to her concerns that the child would be exposed to
domestic violence. That petition did not allege that the father had sexually
abused his child; however, it is uncontested that after that petition was filed,
new facts and legal issues, including allegations that the father had abused his
child, entered the case. However, it is also uncontested that many of those
issues, including whether the father had sexually abused the child, had been
litigated during the pendency of the case. Indeed, in July 2016, after a “final
hearing,” the court approved a detailed order recommended by the marital
master which concluded that “[t]he evidence, on balance, . . . falls short of
proving it highly probable or reasonably certain that father sexually abused
[the child].” The court then awarded the father parenting time and observed
that it “hope[d] . . . that a longer-term parenting schedule can be developed
that would help end this active litigation.”

In December 2017, just two months before the final hearing, the trial
court found that the child’s “best interests require the ‘normalization’ of [the
child’s] relationship with father.” At that time, the court found that the
forensic psychologist’s evaluation was “comprehensive, well-reasoned, and
consistent with the evidence the court has heard in the past several hearings.”
The court then restored the father’s joint decision-making, and temporarily
awarded him overnight parenting time, including a week-long period when the

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mother was out of the country. Both parents and the GAL entered the hearing
on February 14, 2018 with proposed parenting plans that provided for joint
decision-making, and approximately equal residential responsibility.

We agree with the father that — based on the hearing notice, the prior
orders, and the parties’ agreement — a reasonable person in the father’s
position would not have expected that the issue of whether he had sexually
abused his child would be litigated at the February 14, 2018 hearing. We hold,
therefore, that the notice the father received was inadequate to fairly inform
him of the issues to be adjudicated at the hearing in violation of Part I, Article
15 of the New Hampshire Constitution. The Federal Constitution offers the
father at least as much protection as does the State Constitution under these
circumstances. See Douglas, 143 N.H. at 423-24. Accordingly, we reach the
same result under the Federal Constitution as we do under the State
Constitution.

Therefore, because the parties lacked adequate notice that the issue of
whether the father had sexually abused the child would be relitigated at the
hearing, we conclude that the trial court order must be vacated. Having so
concluded, we need not address the father’s additional appellate arguments,
many of which raise significant questions of law that warrant careful
consideration.

On remand, the court should consider whether the July 2016 order,
which concluded after a “final hearing” that “[t]he evidence on balance . . . falls
short of proving it highly probable or reasonably certain that father sexually
abused [the child],” precludes relitigation of this issue. In addition, on remand
the court should assess the relevance of the father’s domestic violence history
given the “best interests” factors set forth in RSA 461-A:6, and address whether
any of the circumstances set forth in RSA 461-A:11 are present to justify
modification of parental rights and responsibilities. See RSA 461-A:11. The
court may also want to analyze the ramifications in this case, if any, of the
amendment to RSA 461-A:16, the Guardian ad Litem statute, which became
effective on January 1, 2019. See Laws 2018, 230:1.

In 2016, the court observed that this “litigation has been contentious
and nearly continuous for 6 of the 7 years [the child] has been alive.” We note
that the case has become even more complicated in the subsequent three
years. There have been three GALs appointed to date, and the case includes
allegations of abuse, alienation, and domestic violence. This is a high conflict
case. Additionally, the father has been prevented from having any contact with
his child for over a year while this appeal has been pending. Because this case
presents issues of the type appropriate for reassignment to the Family Division
Complex Case Docket, see
https://www.courts.state.nh.us/fdpp/complexcasedocket/ComplexFamilyDoc
ketFAQ.pdf, the Administrative Judge of the Circuit Court should carefully

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assess whether this case should be reassigned to that docket. See RSA 490-
F:2 (Supp. 2018).

Vacated and remanded.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

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