In the Matter of Elizabeth Bannon and Richard Bannon

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0749, In the Matter of Elizabeth Bannon
and Richard Bannon, the court on September 18, 2020, issued
the following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The petitioner, Elizabeth Bannon (Mother), appeals an order of the
Circuit Court (DalPra, M., approved by Gleason, J.), denying her petition to
make her Lancaster, Massachusetts residence the children’s legal residence for
school purposes instead of the New Ipswich, New Hampshire residence of the
defendant, Richard Bannon (Father). We affirm.

The trial court found, or the record supports, the following facts. The
parties are the parents of two school-aged children. The parties divorced in
November 2018. Their final divorce decree awarded the parties joint decision-
making authority and shared residential responsibility for their children. The
final decree awarded the parties approximately equal parenting time with the
children.

The decree provided that, for the 2018-2019 school year, the children’s
legal residence for school purposes would be Father’s New Ipswich residence.
However, the decree did not establish the children’s legal residence for the
2019-2020 school year or for any future school year. Instead, the decree
ordered the parties to participate in mediation to resolve the issue of the
children’s legal residence for school purposes for the 2019-2020 school year.

The parties attended mediation, as required, but were unable to resolve
the issue. Accordingly, in June 2019, Mother filed a petition to modify the
parties’ parenting plan to designate her residence as the children’s legal
residence for school purposes. Father objected to the petition. Following a
hearing, the trial court found that “both children’s grades are good” at the New
Ipswich schools they currently attend, but that the schools in Mother’s school
district have “more opportunities” and offer “more challenges to students in
general to assist in academic success.” The court also found that the schools
in Mother’s school district have “more and better services” than the schools in
Father’s school district “to address [the parties’] daughter’s academic needs.”
The court determined that, although Mother’s “request to change school
districts is not unreasonable,” she failed to prove “that keeping the children in
their current circumstances would result in the possibility of emotional or
psychological harm to [them].” Therefore, the court denied Mother’s petition
and ordered that “[t]he children shall attend the Mascenic School District as
long as [Father] remains a resident of New Ipswich.”

On appeal, Mother argues that the trial court erred by requiring her to
show that the children’s current circumstances would result in psychological
or emotional harm to them. She contends that the trial court should have
considered other factors, such as the opportunities available to the children in
each school district and her ability to work and care for the children during the
pandemic if they remain in the Mascenic School District.

Although Mother asserts that the trial court failed to consider the relative
opportunities available to the children in each school district, the trial court’s
narrative order indicates that the court expressly considered that issue. To the
extent that Mother argues that the trial court applied the wrong legal standard
to her petition to modify the parties’ parenting plan, we decline to address the
merits of her argument because she has failed to provide a record
demonstrating that she made this argument in the trial court.

It is a long-standing rule that parties may not have judicial review of
issues they did not raise in the trial court. Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004). This rule is not relaxed for self-represented parties. See
In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56–57 (2006). As
the appealing party, Mother had the obligation to provide a record
demonstrating that she made substantially the same arguments in the trial
court as she makes on appeal. See Bean, 151 N.H. at 250. The trial court
must have had the opportunity to consider any issues asserted on appeal;
thus, any issues which could not have been presented to the trial court before
its decision must be presented to it in a motion for reconsideration. See N.H.
Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002).

Here, the record submitted on appeal does not demonstrate that Mother
ever argued in the trial court that the trial court applied an incorrect standard
to her petition. We, therefore, decline to consider her argument on the merits.

We also decline to consider Mother’s assertions related to how the
pandemic has affected her ability to work and care for the children as those
assertions are not properly before us. The trial court’s order in this case was
issued in November 2019, and its hearing on Mother’s petition was in
September 2019. As an appellate court, we do not find facts in the first
instance and are unable to consider factual allegations that were not part of
the trial court proceeding.

Mother next asserts that, in fact, she did prove that the children’s
current circumstances would result in their psychological or emotional harm.
“We consider only whether the record establishes an objective basis sufficient
to sustain the discretionary judgment made, and we will not disturb the trial

2
court’s determination if it could reasonably have been made.” In the Matter of
Kurowski & Kurowski, 161 N.H. 578, 585 (2011) (quotation omitted). We will
uphold the trial court’s factual findings unless the evidence does not support
them or they are legally erroneous. See In the Matter of Kempton & Kempton,
167 N.H. 785, 798 (2015). “If the trial court’s findings can reasonably be made
on the evidence presented, they will stand.” Id. at 792.

In this case, Father’s testimony and offers of proof support the trial
court’s determination. Although Mother’s testimony and offers of proof
conflicted with Father’s, “[c]onflicts in the testimony, questions about the
credibility of witnesses, and the weight assigned to testimony are matters for
the trial court to resolve.” In the Matter of Kurowski & Kurowski, 161 N.H. at
585. Because the trial court’s determination could reasonably be made on the
evidence before it, we uphold it. See In the Matter of Kempton & Kempton, 167
N.H. 785, 798 (2015).

Affirmed.

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

Timothy A. Gudas,
Clerk

3