In the Matter of Gina DeSantis and Troy Cowell

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0294, In the Matter of Gina DeSantis and
Troy Cowell, the court on November 16, 2022, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2).
We affirm in part, vacate in part, and remand.

The petitioner (Mother) appeals the order of the Circuit Court (Forrest, J.)
following a hearing, implementing a parenting plan between her and the
respondent (Father), and granting the intervenors’ (the grandparents’) request
for grandparent visitation. See RSA 461-A:6 (Supp. 2021) (amended 2022)
(governing parenting plans), :13 (2018) (authorizing award of grandparent
visitation). Mother argues that the trial court erred when it: (1) awarded the
grandparents visitation rights without applying the test set forth in Chief
Justice Broderick’s opinion in In the Matter of R.A. & J.M., 153 N.H. 82 (2005),
and without making express findings with respect to all the factors listed in
RSA 461-A:13, II; (2) failed to timely rule on a motion for contempt for non-
payment of child support and neglected to compute Father’s child support
arrearage; and (3) awarded Father unsupervised visitation with the children
despite his behavioral history.

Following a final hearing, the court instituted a parenting plan that
gradually increased Father’s parenting time with the children, beginning with
supervised visits and “semi-supervised” visits at a supervised visitation center,
and graduating to unsupervised parenting time provided that Father meets
certain conditions. In addition, the court awarded the grandparents visitation
with the children on two Saturdays a month until Father achieves fully
unsupervised visitation, at which time the grandparents’ visitation would be
reduced to one Saturday per month. As to child support, the court denied,
without prejudice, Mother’s pending motion for contempt for Father’s non-
payment of child support and ruled that Father’s child support arrearage
would be determined by the New Hampshire Department of Health and Human
Services. This appeal followed.

The trial court has wide discretion in matters involving parental rights
and responsibilities, child support orders, and contempt motions, and we will
not overturn its determination except when there has been an unsustainable
exercise of discretion. In the Matter of P.B. & T.W., 167 N.H. 627, 631 (2015)
(parental rights and responsibilities); In the Matter of Ndyaija & Ndyaija, 173
N.H. 127, 138, 140 (2020) (contempt and child support). When we review for
an unsustainable exercise of discretion, we are deciding whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made. P.B., 167 N.H. at 631-32. However, we review a trial court’s application
of law to facts de novo. Id. at 632.

Mother first argues that the trial court erred when it awarded
grandparent visitation without applying the four-factor test set forth in Chief
Justice Broderick’s opinion in In the Matter of R.A. & J.M. In R.A., we
addressed the constitutionality of RSA 458:17, VI (2004) (repealed 2005), the
predecessor statute to RSA 461-A:6, V, which permitted awards of custody to
grandparents. See R.A., 153 N.H. at 93-94 (plurality opinion). Specifically, we
considered whether that statute was constitutional in light of the United States
Supreme Court’s recognition in Troxel v. Granville, 530 U.S. 57 (2000), that
parents have a “fundamental right . . . to make decisions concerning the care,
custody, and control of their children.” Id. at 90, 93-94 (quotation omitted)
(plurality opinion). All five justices agreed that the statute could not be
constitutionally applied by using a simple “best-interests standard” to
determine whether an award of custody to grandparents was appropriate;
however, they reached no other consensus. See In the Matter of Bordalo &
Carter, 164 N.H. 310, 315-16 (2012) (summarizing R.A. decision).
Consequently, the court issued three separate opinions: Two justices found the
statute to be unconstitutional, two justices concluded that the statute was
constitutional as long as three factors were met, and Chief Justice Broderick
concluded that the statute was constitutional provided that a four-factor test
(Broderick test) could be satisfied. See R.A., 153 N.H. at 101 (Broderick, C.J.);
id. at 110 (Nadeau & Galway, JJ., concurring in part and dissenting in part);
id. at 111-12 (Dalianis & Duggan, JJ., dissenting); see also Bordalo, 164 N.H.
at 315-16 (summarizing R.A. decision).

Mother argues that the trial court should have applied the four-factor
Broderick test in this case because there is no meaningful distinction between
the award of grandparent visitation that is at issue in this case, and the award
of grandparent “custody” — now termed parental rights and responsibilities —
at issue in R.A. See RSA 461-A:20 (2018) (providing that references to
“custody” mean “the allocation of parental rights and responsibilities”). We
disagree.

The Broderick test is not binding precedent. Because the court was
divided in R.A., no one standard — including the Broderick test — received
sufficient support to afford it precedential weight. In the Matter of Morris &
Morris, 174 N.H. 562, 567-68 (2021). And we have not since held that the
Broderick test is the controlling standard. See id. We therefore conclude that
the trial court did not err by not applying the Broderick test.

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 Mother appears to also assert that, if the Broderick test does not apply to
petitions for grandparent visitation, then RSA 461-A:6, V and :13, relating to
grandparent awards of parental rights and responsibilities and visitation
respectively, are unconstitutional. However, because Mother did not raise this
constitutional argument in the trial court, or adequately develop it on appeal,
we decline to address it. See State v. Blackmer, 149 N.H. 47, 48-49 (2003).

Mother also argues that the trial court’s grandparent visitation award
was erroneous because the court failed to make express findings of fact as to
each of the factors listed in RSA 461-A:13, II. That statute provides, in relevant
part:

(II) The court shall consider the following criteria in making an
order relative to a grandparent’s visitation rights to the minor
child:
(a) Whether such visitation would be in the best interest of the
child.
(b) Whether such visitation would interfere with any parent-
child relationship or with a parent’s authority over the child.
(c) The nature of the relationship between the grandparent and
the minor child, including but not limited to, the frequency of
contact, and whether the child has lived with the grandparent and
length of time of such residence, and when there is no reasonable
cause to believe that the child’s physical and emotional health
would be endangered by such visitation or lack of it.
(d) The nature of the relationship between the grandparent and
the parent of the minor child, including friction between the
grandparent and the parent, and the effect such friction would
have on the child.
(e) The circumstances which resulted in the absence of a
nuclear family, whether divorce, death, relinquishment or
termination of parental rights, or other cause.
(f) The recommendation regarding visitation made by any
guardian ad litem appointed for the child pursuant to RSA 461-
A:16.
(g) Any preference or wishes expressed by the child.
(h) Any such other factors as the court may find appropriate or
relevant to the petition for visitation.

RSA 461-A:13, II. We have held that the trial court must weigh the first two
statutory factors more heavily than the remaining factors, according due
deference to a fit parent’s judgment as to the best interests of the child as part
of the court’s determination of the child’s best interests. In the Matter of Rupa
& Rupa, 161 N.H. 311, 318 (2010). Further, to facilitate appellate review, we
have instructed trial courts to “make express findings of fact with respect to all
of the enumerated factors” that the court considers. Id.

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 Here, although the court made factual findings relating to some of the
enumerated factors, it made no factual findings related to factor (b) — whether
the visitation would interfere with any parent-child relationship or with a
parent’s authority over the child. See RSA 461-A:13, II(b). Although the trial
court properly acknowledged that it must weigh factors (a) and (b) “more
heavily than the remaining listed factors,” it failed to expressly make the
factual findings necessary to do so. Because the trial court failed to make
sufficient factual findings, we cannot conclude that it considered all the factors
listed in the statute, see RSA 461-A:13, II, and weighed the first two factors
more heavily, see Rupa, 161 N.H. at 318. Accordingly, we vacate the trial
court’s award of grandparent visitation.

We note that, although we construe the trial court’s order as awarding
grandparent visitation independent of Father’s visitation rights, it is not
completely clear whether that is what the trial court intended. See State v.
Surrell, 171 N.H. 82, 88 (2018) (“The interpretation of a trial court order
presents a question of law for us to decide.”). The court granted the
grandparents visitation rights on the second and fourth Saturdays of each
month from 9 a.m. to 5 p.m. “until [Father’s] parenting time becomes
completely unsupervised.” The court explained that the grandparents may “[a]t
their discretion” include Father in this visitation. However, elsewhere in the
order, the court stated that “Father shall have supervised parenting time”
during these exact same times each month to be supervised by the
grandparents or another supervisor approved by Mother. (Emphasis added.)
The grandparents’ current visitation rights are thus, at best, concurrent with
Father’s, or, at worst, in conflict with Father’s. On the other hand, the court
also stated that, if Father complies with the parenting plan and achieves fully
unsupervised visitation with the children, the grandparents will still continue
to have visitation with the children on the second Saturday of the month. This
language and the discretionary language quoted above seem to indicate that
the grandparents’ visitation rights are independent from Father’s. To the
extent necessary, on remand, the court may wish to clarify any grandparent
visitation award.

Mother next argues that the trial court erred when it neglected to timely
act on her motion for contempt for non-payment of child support, and when it
failed to calculate Father’s child support arrearage. She also asserts that the
court unsustainably exercised its discretion when it implemented a parenting
plan that gave Father the opportunity to have unsupervised visits with the
children. As the appealing party, Mother has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s order, Mother’s challenges to it, the relevant law, and
the record submitted on appeal, we conclude that Mother has not
demonstrated reversible error as to any of these issues. See id.

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 In sum, we affirm the trial court’s rulings on the motion for contempt,
child support arrearage, and Father’s visitation schedule. We vacate the
court’s award of grandparent visitation and remand for the trial court to make
express findings of fact with respect to all of the enumerated factors in RSA
461-A:13, II, and for any other proceedings consistent with this order. Any
issues raised in the notice of appeal that were not briefed are deemed waived.
See In the Matter of Sanborn & Bart, 174 N.H. 343, 346 (2021).

Affirmed in part; vacated in part;
and remanded.

MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
concurred; HANTZ MARCONI, J., concurred specially.

HANTZ MARCONI, J., concurring specially. I agree with my colleagues
that the Broderick test is not binding precedent. I write separately to reinforce
the notion that the statutory framework for awarding visitation rights to
grandparents must be narrowly construed “to comport with state and federal
constitutional requirements.” In the Matter of Rupa & Rupa, 161 N.H. 311,
317 (2010). To that end, while I agree that the grandparents in this case may
exercise visitation coincident with, and dependent on, Father’s parenting time,
I would be uncomfortable with an order granting the grandparents independent
visitation rights over Mother’s objection, particularly once Father has achieved
unsupervised parenting time.

Parents are obligated to act in good faith and fairly adjust parenting
schedules when family situations, illnesses, or other commitments make
modification reasonable. An unyielding third-party visitation schedule when
two fit parents are sharing parenting time introduces an arguably
unconstitutional interference with the parents’ rights. See id. (discussing
Troxel v. Granville, 530 U.S. 57 (2000)). The grandparents’ visitation statute
contemplates its invocation when there is an absence of a nuclear family. See
RSA 461-A:13, I (2018); In re Athena D., 162 N.H. 232, 235 (2011). Though
the parties in this case were never married, given that both are present in their
children’s lives, it begs the question as to whether, in this day and age, the
“nuclear family” is absent. But see O’Brien v. O’Brien, 141 N.H. 435, 437
(1996) (status as an unwed parent might qualify as a circumstance resulting in
the absence of a nuclear family). For these reasons, I believe any award of
grandparent visitation in this case must be subject to the discretion of the
parents, and at this juncture, Mother.

Timothy A. Gudas,
Clerk

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