In the Matter of Jennifer Marino and John Marino, III

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0305, In the Matter of Jennifer Marino
and John Marino, III, the court on March 9, 2020, 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, John Marino, III (father), appeals the parenting plan
ordered by the Circuit Court (Leonard, J.) pursuant to the parties’ final divorce
decree. Under the plan, the parties have joint decision-making responsibility
for major decisions involving their three children, see RSA 461-A:5 (2018), and
the petitioner, Jennifer Marino (mother), has primary residential responsibility
for the children, see RSA 461-A:6 (2018). The father has parenting time one
day a week and alternating weekends. He has additional parenting time during
school and summer vacations. He argues that the court erred in failing to
award him equal residential responsibility for the children.

“When reviewing a trial court’s decision on parenting rights and
responsibilities, our role is limited to determining whether it clearly appears
that the trial court engaged in an unsustainable exercise of discretion.” In the
Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). “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.” Id. (quotation omitted).

The father argues that the parenting plan is based upon a number of
erroneous factual findings which, he argues, resulted in a plan that is not in
the children’s best interests. See RSA 461-A:6 (enumerating best interest
factors). The court’s determination of a child’s best interest depends to a large
extent upon its firsthand assessment of the credibility of witnesses. Kurowski,
161 N.H. at 585. We defer to the trial court to resolve conflicts in the
testimony, weigh the evidence, and assess the credibility and demeanor of the
witnesses. Id. We will affirm the trial court’s findings and rulings unless they
are unsupported by the evidence or are legally erroneous. In the Matter of
Nyhan and Nyhan, 147 N.H. 768, 770 (2002).

The father first argues that the court erred in concluding that the mother
was “always” the primary caregiver. He asserts that, contrary to the court’s
finding, there were periods during which the mother worked outside the home,
and he worked from his home office, providing primary care for the children.
He also notes that the mother, by her own testimony, regularly relied upon
family members and nannies to care for the children. The father asserts that
the court ignored periods during which he was responsible for the children
pursuant to the court’s temporary orders. The mother testified that, during the
marriage, the father generally worked six to seven days a week, from early in
the morning until after the children’s dinner, and that she was the primary
caregiver for the children even when she was working outside the home. We
defer to the trial court to resolve conflicts in the testimony, weigh the evidence,
and assess the credibility and demeanor of the witnesses. Kurowski, 161 N.H.
at 585.

The father next argues that the court erred in concluding that he
“generally did not attend” the children’s doctor visits, parent-teacher
conferences, dentist appointments, and extracurricular activities. He notes
that the children did not start school until after the parties’ separation and
asserts that any lack of attendance at doctor visits was the consequence of the
mother’s unilateral decisions. The mother acknowledged that the father
attended their child’s sporting events and some of the children’s early medical
appointments, but testified that she remained primarily responsible for
bringing the children to their appointments. The trial court was in the best
position to resolve the parties’ conflicting testimony and weigh the evidence.
Id.

The father also argues that the court erred in concluding that he often
delegated primary caregiving responsibility to his mother, sister, and girlfriend
when the children were in his care. He asserts that he, his mother, and his
sister all testified that he was an attentive and involved parent. The trial court
was not required to credit the testimony of the father and his witnesses on this
issue. In the Matter of Aube & Aube, 158 N.H. 459, 465 (2009). The mother
testified that the father’s girlfriend frequently assumed primary responsibility
for the children, including bringing them to appointments and administering
medication.

The father next argues that the court erred in concluding that he bears
primary responsibility for the parties’ communication problems. The mother
argues that the court’s finding is supported by her testimony that the father
discontinued marriage counseling because he believed that the breakdown in
their relationship was the mother’s fault, and that during their separation, the
father delegated communication responsibility to his girlfriend. Resolution of
this issue involved weighing the evidence, which was for the trial court. See
Kurowski, 161 N.H. at 585.

Finally, the father argues that the court erred in concluding that he has
“disdain and lack of respect” for the mother, and that the court should have
concluded that the mother has disdain and a lack of respect for him. He

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asserts that the mother disparaged him to his girlfriend, and that her
accusations were baseless. The mother argues that the court’s finding was
supported by her testimony that the father kicked her out of the house after
learning that she had neutered their dog, and that the father moved out of the
house three days before Christmas, when she was pregnant.

We conclude that the trial court’s findings are supported by the record
and are not legally erroneous. See Nyhan, 147 N.H. at 770. Accordingly, we
conclude that the father has failed to demonstrate that the court’s parenting
plan constitutes an unsustainable exercise of its discretion. See Kurowski, 161
N.H. at 585. The father’s remaining arguments are not adequately developed,
see State v. Blackmer, 149 N.H. 47, 49 (2003), and warrant no further
discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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