In the Matter of Matthew Higgins and Nicole Richards

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0450, In the Matter of Matthew Higgins
and Nicole Richards, the court on April 23, 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).
The petitioner, Matthew Higgins (Father), appeals orders recommended by a
Marital Master (Cooper, M.) and approved by the Circuit Court (McIntyre and
Alfano, JJ.) allowing the respondent, Nicole Richards (Mother), to relocate with
the parties’ child, see RSA 461-A:12 (Supp. 2019). We affirm.

RSA 461-A:12, V-VI establishes a two-part test, known as the burden-
shifting test, that applies when a parent seeks to relocate the residence of a
child. In the Matter of Heinrich & Curotto, 160 N.H. 650, 654 (2010). Under
this test, the parent petitioning for relocation must demonstrate that the
relocation is for a legitimate purpose and is reasonable in light of that purpose.
RSA 461-A:12, V. If the petitioning parent meets this burden, the opposing
party then has the burden of proving that the relocation is not in the child’s
best interest. RSA 461-A:12, VI; Heinrich, 160 N.H. at 654. We have identified
seven factors, referred to as the Tomasko factors, for a trial court to consider
when determining whether a proposed relocation is in a child’s best interest:

(1) each parent’s reasons for seeking or opposing the move; (2) the
quality of the relationships between the child and the custodial
and noncustodial parents; (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 custodial and
noncustodial parents; and (7) the effect that the move may have on
any extended family relations.

Tomasko v. DuBuc, 145 N.H. 169, 172 (2000). No one factor is dispositive, nor
are these the exclusive factors bearing upon a determination of a child’s best
interest. In the Matter of Pfeuffer & Pfeuffer, 150 N.H. 257, 260 (2003). 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 review the trial court’s decision under our unsustainable exercise of
discretion standard. Heinrich, 160 N.H. at 655. 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 Lynn & Lynn, 158 N.H. 615, 617 (2009).
“We do not decide whether we would have ruled differently than the trial court,
but rather, whether a reasonable person could have reached the same decision
as the trial court based upon the same evidence.” O’Malley v. Little, 170 N.H.
272, 275 (2017) (quotation omitted). “Thus, we defer to the trial court’s
judgment on such issues as resolving conflicts in the testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence.” Id.
(quotation omitted). “Nevertheless, we review the trial court’s application of the
law to the facts de novo.” Id. (quotation omitted).

On appeal, Father argues that the trial court erroneously: (1) failed to
address the statutory analysis required under RSA 461-A:12 as to the
reasonableness of Mother’s relocation to Florida; and (2) failed to address the
Tomasko factors when it concluded that relocation was in the child’s best
interests. We address each argument in turn.

Father faults the trial court for failing to explain why Mother’s legitimate
purpose for the relocation was not achievable by moving to a location
substantially less disruptive to his relationship with the child. See Tomasko,
145 N.H. at 171-72 (observing, with approval, that the Connecticut Supreme
Court has held that “‘relocation motivated by a legitimate purpose should be
considered reasonable unless its purpose is shown to be substantially
achievable without moving, or by moving to a location that is substantially less
disruptive of the other parent’s relationship to the child.’” (quoting Ireland v.
Ireland, 717 A.2d 676, 682 (1998))).

To support his argument, Father relies upon two 3JX orders, which lack
precedential value. See In the Matter of Sullivan and Sullivan, Case No. 2014-
0256, 2015 WL 11182025, at *2 (N.H. May 22, 2015); In the Matter of Warren
and Warren, Case No. 2012-0498, 2013 WL 11992455, at *1 (N.H. May 13,
2013); see also Sup. Ct. R. 12–D(3) (although a 3JX order has no precedential
value, it may be cited or referenced in pleadings or rulings in any court in this
state, as long as it is identified as a non-precedential order). Both of these
cases are distinguishable from the instant case.

In both Sullivan and Warren, the trial courts found that the proposed
relocation would harm the relationship between the non-relocating parent and
the child/children. See Sullivan, 2015 WL 11182025, at *2 (observing that the
trial court’s factual findings indicated that the authorized relocation might
disrupt the non-relocating parent’s relationship with the child); Warren, 2013

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WL 11992455, at *1 (noting that the trial court found that the mother’s
relocation “has precluded the children from having the active and regular
involvement of both of their parents in their lives which the Legislature has
determined in their best interest” (quotation omitted)).

By contrast, in the instant case, the trial court found that the proposed
relocation would, ultimately, provide Father with more parenting time than he
has under the parties’ current parenting plan, and that it would not negatively
impact his relationship with the child. Under the parties’ current parenting
plan, Father and the child see each other for two weekends and two weekday
afternoons per month. The trial court found that, under the proposed
parenting plan based upon Mother’s relocation, Father and the child will be
with one another “for weeks at a time, particularly during Spring and Summer
school breaks.” The record supports that finding. As the trial court observed,
“both parties testified that under . . . the proposed parenting plan in the event
of relocation, [the child] and his father would spend more time together in the
aggregate each year although it would be less frequent.” As we recognized in
Tomasko:

There are undoubtedly circumstances in which the loss of midweek
or every weekend visits necessitated by a distant move may be
devastating to the relationship between the noncustodial parent
and the child. However, there are undoubtedly also many cases
where less frequent but more extended visits over summers and
school vacations would be equally conducive, . . . to the
maintenance of a close parent-child relationship, since such
extended visits give the parties the opportunity to interact in a
normalized domestic setting.

Tomasko, 145 N.H. at 173 (quotation omitted).

Father also relies upon the unpublished order in In the Matter of
Scheidegg and Pulsifer, Case No. 2014-0817, 2015 WL 11079371, at *2 (N.H.
Sept. 17, 2015). He asserts that, in that case, we agreed with the trial court
that the mother’s “relocation choice was not reasonable” because she had failed
to provide evidence of having conducted a New Hampshire job search and had
not demonstrated that she sought employment in locations closer to the child’s
current residence. Father misconstrues our order in Scheidegg. In fact, we
vacated the trial court’s order and remanded because the court had failed “to
make findings as to whether the proposed location is reasonable in light of all
of the reasons given by the mother.” Scheidegg, 2015 WL 11079371, at *2.

As to the best interests analysis, Father contends that the trial court
failed to identify and apply the Tomasko factors. We do not share his
interpretation of the trial court’s order. See In the Matter of Salesky & Salesky,
157 N.H. 698, 702 (2008) (explaining that the interpretation of a trial court

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order presents a question of law, which we review de novo). In its narrative
order, and in granting certain of the respondent’s specific requests for findings
of fact, the trial court sufficiently reviewed and sustainably applied the
Tomasko factors. To the extent that Father contends that the trial court was
required to specifically make a factual finding as to each Tomasko factor, he is
mistaken. See Pfeuffer, 150 N.H. at 260. Although the evidence as to the
Tomasko factors was conflicting, it was for the trial court to resolve those
conflicts in the first instance, and we defer to its judgment in so doing. See
O’Malley, 170 N.H. at 275.

Affirmed.

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

Timothy A. Gudas,
Clerk

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