In the Matter of Katherine Harper and Matthew Broas

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0493, In the Matter of Katherine Harper
and Matthew Broas, the court on September 22, 2020, issued
the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
respondent, Matthew Broas (Father), appeals a decision of the Circuit Court
(Alfano, J.) adopting the recommendation of a Marital Master (Cooper, M.)
denying Father’s relocation and modifying the parties’ parenting plan. We
reverse in part, vacate in part, and remand.

The following facts were found by the trial court or recite the contents of
documents contained in the record. Father and the petitioner, Katherine
Harper (Mother), are the parents of two minor daughters. Mother lives in
Concord and, prior to the relocation at issue here, Father lived in Salisbury. A
final parenting plan regarding the children was entered in 2015. It awarded
Father primary residential responsibility, provided that the children would
attend school in the district where Father resides, and ordered a routine
schedule of parenting time for Mother. The parties subsequently “deviated
from the routine schedule on an ad hoc basis” and, over the year preceding this
action, had been “essentially follow[ing] a shared parenting schedule.”

In September 2018, Father signed a purchase and sale agreement on a
house in New London. He informed Mother of the impending move in
December. Mother did not agree to the move, but “followed up with an e-mail
within a few weeks asking him for proposals regarding a change in the
schedule.”

Father did not petition for court approval of his relocation of the children
and, accordingly, Mother filed a petition to enjoin it. The court held an initial
hearing, entered temporary orders, and, after further hearing, issued the order
on appeal. In that order, the court granted Mother’s motion for directed verdict
and denied Father’s relocation, even though, by that time, Father had already
moved to New London. The court also modified the parties’ parenting plan,
reasoning that, “[a]s neither parent resides in the Salisbury School District and
the parties are not able to agree on a school district, the court must make
adjustments to the parties[’] Parenting Plan to reflect their current
circumstances.”
 On appeal, Father argues that the trial court erred in: (1) applying the
2018 substantive amendments to RSA 461-A:12 to this case; (2) granting
Mother’s motion for directed verdict; and (3) modifying the parties’ parenting
time. He also contends that the trial court unsustainably exercised its
discretion in denying his intrastate move and made factual findings that lack
support in the record.

Father’s first argument concerns the application of paragraph II-a of RSA
461-A:12, which was added to the statute in 2018. See RSA 461-A:12, II-a
(Supp. 2019). That paragraph provides: “A parent shall not relocate a child
without a court order unless relocation is necessary to protect the safety of the
parent or child, or both.” Id. Father argues that the trial court “impermissibly
retroactively applied RSA 461-A:12, II-a to [him],” in contravention of “his
constitutional right to travel.”

Mother counters that the “issue of whether RSA 461-A:12 as amended
should be applied prospectively or retrospectively to parenting plans drafted
prior to August 7, 2018, is irrelevant to the instant case.” She contends that
although the trial court ruled that Father violated RSA 461-A:12, II-a by not
obtaining a court order prior to relocating, that ruling “was not the basis for
the court’s denial of his request to relocate.” We agree with Mother that we
need not address the issue of retrospectivity to decide this case, and
accordingly, we decline to do so. As Mother points out, the trial court’s “clearly
articulated . . . basis for denying [Father’s] proposed relocation was . . . failure
to meet his burden under RSA 461-A:12, V(b) that his relocation was
reasonable in light of a legitimate purpose.”

Father next argues that the trial court erred in granting Mother’s motion
for directed verdict. “Because motions for directed verdict relate to the
sufficiency of the evidence, they present questions of law which we
review de novo.” Stachulski v. Apple New England, LLC, 171 N.H. 158, 168
(2018). “A party is entitled to a directed verdict only when the sole reasonable
inference that may be drawn from the evidence, which must be viewed in the
light most favorable to the nonmoving party, is so overwhelmingly in favor of
the moving party that no contrary verdict could stand.” DeBenedetto v. CLD
Consulting Eng’rs, 153 N.H. 793, 812 (2006). A plaintiff “may not avoid a
directed verdict by presenting evidence that is merely conjectural in nature,”
but rather, “must present sufficient evidence to satisfy the burden of proof
such that a reasonable [factfinder] could find in [his] favor.” Figlioli v. R.J.
Moreau Cos., 151 N.H. 618, 621 (2005).

Mother contends that a directed verdict in her favor was appropriate
because Father failed to introduce evidence sufficient to sustain his burden of
proof. The parties’ respective burdens are set forth in paragraphs V and VI of
RSA 461-A:12:

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 V. The parent seeking permission to relocate bears the initial
burden of demonstrating, by a preponderance of the evidence, that:

(a) The relocation is for a legitimate purpose; and

(b) The proposed location is reasonable in light of that purpose.

VI. If the burden of proof established in paragraph V is met, the
burden shifts to the other parent to prove, by a preponderance of
the evidence, that the proposed relocation is not in the best
interest of the child.

RSA 461-A:12, V, VI (2018).

The trial court noted that Father’s stated reason for relocating was “the
need . . . [for] more suitable housing for the girls” given that their “housing in
Salisbury was a second-floor apartment” at a busy intersection with “dogs
located with the tenants on the first floor.” The court found Father’s “objective
in this regard to be legitimate.” The court concluded, however, that “the
location of the housing [Father] ultimately obtained [was not] reasonable.”

Father contends that the trial court erred by failing to view the evidence
in the light most favorable to him as the nonmoving party, as required in the
standard for ruling on a motion for directed verdict. He further contends that
“[i]nstead of analyzing [Mother’s] motion for directed verdict under the facts
before it, the trial court . . . made assumptions . . . to assert that [Father]
should have looked elsewhere for a suitable place to live.” Specifically, the
court noted that the home Father chose to purchase was listed at $533,000.00,
and then assumed: (1) that Father did not pay the asking price; and (2) that
“there may well have been other housing in the Concord area — or Salisbury
area — within the $400,000.00 range.” The court then concluded that Father’s
“new residence . . . is 21 miles further away from that of [Mother] . . . and is
not rationally related to achieving [Father’s] objective, particularly when other
options appear to have been available.”

Father argues that the trial court “wrongly imposed on [him] the burden
to show he could not find housing in Concord, where [Mother] lived, or closer to
her.” Although the trial court did not explicitly cite supporting authority for its
conclusion, it appears to have relied upon language in Tomasko v. Dubuc, 145
N.H. 169 (2000), which we quoted from the Supreme Court of Connecticut’s
decision in Ireland v. Ireland, 717 A.2d 676 (Conn. 1998), superseded by
statute as stated in Hardy-Harris v. Harris, No. 0740246475, 2008 WL
2039259 (Conn. Super. Ct. April 21, 2008): “‘[A] 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

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location that is substantially less disruptive of the other parent’s relationship
to the child.’” Tomasko, 145 N.H. at 171–72 (quoting Ireland, 717 A.2d at 682).

Father argues that while the legislature codified the same burden-
shifting test used in Ireland and Tomasko in RSA 461-A:12, V-VI, it rejected
the “substantially less disruptive” language of Ireland and Tomasko when it
provided that RSA 461-A:12 “shall not apply if the relocation results in the
residence being closer to the other parent or to any location within the child's
current school district.” RSA 461-A:12, I (Supp. 2019).

On the facts of this case, we need not decide whether RSA 461-A:12, I, is
contrary to the “substantially less disruptive” standard or whether that
standard is otherwise applicable under New Hampshire law. We need not do so
because, even assuming that standard applies, we conclude that the term
“substantially” denotes an order of magnitude that is not at issue here. See
New Oxford American Dictionary 1736 (3d ed. 2010) (defining “substantially,”
in relevant part, to mean “to a great or significant extent”).

The parties agree that Father’s New London home is farther away from
Mother’s Concord residence than his Salisbury apartment. Mother testified
that the New London house is twice the distance from her residence as the
Salisbury apartment; however, the added distance, as found by the trial court,
is only 21 miles. According to an exhibit introduced by Mother, it takes 21
minutes longer to drive from her residence to Father’s New London house than
to the Salisbury apartment. We conclude that, under the facts of this case —
with a move less than 30 minutes and 30 miles farther from Mother’s residence
— the “substantially less disruptive” standard is simply not a factor in the
reasonableness analysis. Any assumptions the trial court may have made
about the availability of housing closer to Mother are therefore irrelevant and
should not have been considered in ruling on Mother’s motion for directed
verdict. Having so concluded, we need not address Father’s argument that the
trial court’s assumptions were “factually unsupported.”

Based upon the evidence presented, viewed in the light most favorable to
Father, and without considering whether Father’s legitimate purpose was
obtainable by moving to a location closer to Mother, we conclude that the trial
court erred in granting a directed verdict in Mother’s favor. The record
contains evidence that the location Father chose was reasonable in light of his
legitimate purpose. Father testified that Salisbury was “very rural” and that
New London was “very similar” to Salisbury. He affirmed that he was looking
for “an atmosphere that was consistent with the rural character of Salisbury”
and that New London was not only similar to, but also an “improvement” on,
Salisbury. He testified that at the New London house, the children could go
outside to play without first having to ask for permission, which was not
something they could do at their Salisbury residence where they shared a
backyard with another tenant who had dogs. Little or no relevant contrary

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evidence was adduced. Taking this evidence in the light most favorable to
Father, and given the dearth of contrary evidence, the trial court could not
have sustainably concluded that “the sole reasonable inference that may be
drawn from the evidence . . . is so overwhelmingly in favor of [Mother] that no
contrary verdict could stand.” DeBenedetto, 153 N.H. at 812. Accordingly, we
reverse the ruling directing a verdict in Mother’s favor, vacate the order denying
Father’s relocation, and remand for further proceedings consistent with this
order.

Father next argues that the trial court erred in modifying the parties’
parenting time because it lacked authority to do so under either RSA 461-A:11
or RSA 461-A:12, IX. “We review both the trial court’s application of the law to
the facts and its statutory interpretation de novo.” Sabato v. Fed. Nat’l Mortg.
Ass’n, 172 N.H. 128, 131 (2019).

Father contends that the court lacked authority under RSA 461-A:11
because “neither party requested, pleaded, or proved a statutory [basis] for
modification” under that section. (Bolding omitted.) We agree. “[T]o obtain a
modification of a parenting schedule, a party must plead and prove one of the
statutory circumstances set forth in RSA 461-A:11, I.” Summers, 172 N.H. at
483. Mother concedes that she “did not file a motion to amend the parenting
plan pursuant to RSA 461-A:11 because this was a relocation case and RSA
461-A:12 applies.” Accordingly, the trial court did not have authority to modify
the parties’ parenting time under RSA 461-A:11.

Father also contends that the court lacked authority under RSA 461-
A:12, IX, which provides: “If the parties agree on or the court authorizes the
relocation of a residence of a child, the court may modify the allocation or
schedule of parenting time or both based on a finding that the change is in the
best interests of the child.” RSA 461-A:12, IX (2018). Father argues that
because the parties did not agree to, and the trial court denied, Father’s
relocation, RSA 461-A:12, IX, by its plain language, does not authorize a
modification of parenting time.

Because Father’s argument is premised, in part, on the court’s denial of
his relocation, and we have vacated that ruling, we decline to address Father’s
argument at this juncture. It is possible that, on remand, the trial court will
grant Father’s request to relocate, thus rendering the statutory authority issue
moot. In addition, Mother’s actions on remand could render this issue moot as
well. She argues:

Reversing the trial court’s finding that it had authority to modify
the parties[’] parenting plan[] would result in needless litigation
and a waste of judicial resources. Because the parties have
already had a full and fair opportunity to be heard on their
requested parenting plans, on remand [Mother] would simply have

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 to consent to the relocation, since [Father] still resides in New
London. By [Father’s] own admission, this would create statutory
grounds for the trial court to then modify the parenting plan
pursuant to RSA 461-A:12, IX and order the parenting plan the
court has already ruled is in the children’s best interest.

Accordingly, we decline to address Father’s statutory authority argument.

Finally, Father challenges the trial court’s factual findings regarding: (1)
the timing of an e-mail communication from Mother to Father; (2) whether
Father responded to that e-mail; (3) whether Father continued the ad hoc
practice of offering Mother additional parenting time; and (4) whether the
parties shared residential responsibilities over the children by agreement or
pursuant to an ad hoc schedule. Father argues that these findings are not
supported by the record. See In the Matter of Letendre & Letendre, 149 N.H.
31, 34 (2002) (“We sustain the findings and rulings of the trial court unless
they are lacking in evidential support or tainted by error of law.”). Mother
argues that Father “fails to articulate how these findings prejudiced his case.”
We need not decide whether the court erred in making these factual findings,
since Father has not shown their relevance to the issues raised in this appeal
or any resulting prejudice. See Giles v. Giles, 136 N.H. 540, 545 (1992) (“For
an error to require reversal on appeal, it must have been prejudicial to the
party claiming it.” (quotation and brackets omitted)).

Reversed in part; vacated in part;
and remanded.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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