In the Matter of Andrew Cullen and Jacqueline Cullen

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0481, In the Matter of Andrew Cullen and
Jacqueline Cullen, the court on September 3, 2020, issued the
following order:

The respondent’s motion to strike the petitioner’s reply brief is denied.
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 in
part and reverse in part.

The petitioner, Andrew Cullen (father), appeals the final decree of the
Circuit Court (Forrest, J.) in his divorce from the respondent, Jacqueline
Cullen (mother). He argues that the trial court erred by: (1) not awarding the
parties equal parenting time; (2) failing to consider the mother’s counseling
records in establishing its parenting plan; and (3) ordering a psychologist’s
confidential report to be made available to counselors, over his objection.

“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).
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 final parenting schedule in this
case maintained the “status quo” of the temporary orders, which provided the
father with frequent and continuing contact with the parties’ young child,
including five overnights during a two-week, rotating schedule.

The father first argues that the trial court erred in not awarding the
parties equal parenting time, which the guardian ad litem (GAL) had
recommended. The recommendations of a GAL do not carry any greater weight
than the other evidence at trial. In the Matter of Heinrich & Curotto, 160 N.H.
650, 657 (2010). The trial court acknowledged that the GAL recommended
increasing the father’s parenting time; however, the court agreed with the
psychologist appointed at the GAL’s request that reducing the child’s time with
the mother would not be in the child’s best interest because it would risk
“undermining [the child’s] development and exacerbating [the child’s] distress.”
We defer to the trial court to resolve conflicts in the testimony and determine
the weight to be given to the evidence. Cook v. Sullivan, 149 N.H. 774, 780
(2003).

The father asserts that the trial court relied too heavily upon the
psychologist’s report in determining its parenting plan. He contends that the
report was inaccurate and incomplete because the mother allegedly refused to
disclose her counseling records until after the psychologist completed the
report. He argues that the psychologist would have reached different
conclusions, and that the trial court would have ordered equal parenting time,
if the mother had timely disclosed her counseling records.

At the outset, we note that the court did not order the mother to provide
the psychologist with her counseling records. Rather, the court ordered both
parties to execute releases so that the psychologist could obtain counseling
records “should he deem that necessary.” In his report, the psychologist
acknowledged that the mother had sought counseling “for help managing the
stress of the divorce.” However, in an email to the GAL, the psychologist
explained that he decided not to review the mother’s counseling records prior
to preparing his report because he had completed “a comprehensive mental
health assessment of [the mother] and didn’t believe those records would add
much of anything to [his] knowledge about this woman’s mental health status.”
We defer to the trial court to determine the weight to be given to the
psychologist’s report. See id.

The father next argues that the court erred in failing to consider the
mother’s counseling records in its parenting order. The record shows that the
father introduced the mother’s counseling records as exhibits at trial. Based
upon those records, the father cross-examined the mother regarding certain
mental health and behavioral issues. He also elicited testimony from the GAL,
and testified himself, regarding certain information contained in the counseling
records. The fact that the court’s order does not specifically refer to the
counseling records does not mean that the court failed to consider them. See
In re Jonathan T., 148 N.H. 296, 304 (2002). In the absence of specific
findings, a court is presumed to have made all findings necessary to support its
decision. Id. Accordingly, we assume that the court considered the counseling
records and made the findings necessary to support its parenting plan, even if
it did not do so expressly. See id. We conclude that the trial court’s express
and assumed findings are supported by the record. See Nyhan, 147 N.H. at
770. Accordingly, 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.

Finally, the father argues that the court erred in ordering the disclosure
of the psychologist’s confidential report to the child’s counselor and the
parents’ guidance counselor, over his objection. The father raised his
confidentiality objection in a post-decree motion, which the trial court declined

2
to address because he had raised the issue in this appeal. The record shows
that the father agreed to the psychological evaluation for the sole purpose of
assisting the court in determining a parenting plan. The report contains
confidential, personal medical information that the father did not agree to
disclose for any other purpose. Accordingly, to the extent that the trial court
ruled that the report should be made available to counselors over the father’s
objection, we reverse.

Affirmed in part; reversed in part.

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

Timothy A. Gudas,
Clerk

3