In the Matter of Kayley Hays and Leigh Hays

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0368, In the Matter of Kayley Hays and
Leigh Hays, the court on July 1, 2022, 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 respondent, Leigh Hays (father), appeals an order of the Circuit Court
(Yazinski, J.) denying his petition to change the parties’ parenting plan so as to
designate his residence as the school district for the parties’ children. See RSA
461-A:11 (2018). He argues that, because relocation of the children by the
petitioner, Kayley Erisman f/k/a Kayley Hays (mother), prompted his petition,
see RSA 461-A:12 (Supp. 2021), the trial court erred by requiring that he
satisfy the burden of proof under RSA 461-A:11, III, rather than requiring the
mother to satisfy the burden of proof under RSA 461-A:12, V. We affirm.

A parent seeking to modify any provision of a permanent parenting plan
other than one concerning a parenting schedule or the location of a child’s
residence “need only prove that the modification is in the child’s best interest.”
In the Matter of Summers & Summers, 172 N.H. 474, 483 (2019); see RSA
461-A:11, II, III. A parent seeking to relocate a child’s residence, however,
generally must satisfy RSA 461-A:12. Summers, 172 N.H. at 483.

Under RSA 461-A:12, unless a relocation “results in the [child’s]
residence being closer to the other parent or . . . within the child’s current
school district,” a parent seeking to relocate the child is generally required,
absent circumstances not present here, to obtain prior court approval of the
relocation. RSA 461-A:12, I, II-a. To obtain court approval of a relocation, the
relocating parent must prove, by a preponderance of evidence, that the
relocation is for a legitimate purpose and is reasonable in light of that purpose.
RSA 461-A:12, V; see In the Matter of St. Pierre & Thatcher, 172 N.H. 209,
221-22 (2019). Once the relocating parent has carried that burden, the burden
shifts to the other parent to prove that the relocation is not in the child’s best
interest. RSA 461-A:12, VI; see In the Matter of St. Pierre & Thatcher, 172
N.H. at 222. If both parents agree to the relocation, the trial 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.

In this case, the parties’ 2016 final parenting plan provides that, during
the school year, their two minor children reside with the mother from Sunday
evening through Thursday after school, and with the father for the remainder
of the week. The parenting plan further provides that the children will attend
school in the school district where the mother resides. In 2020, the mother
notified the father that she would be moving from Claremont, where both
parties resided and where the children attended school, to nearby Croydon.
The father stated that he did not object to the move, but that he did object to
the children changing school districts and would file a pleading to that effect.

Thereafter, the father filed a “petition to change court order,” stating that
he “would like to change residential responsibility to keep the children in their
current school,” and that he believed “it would be best for [the children] to
remain in the Claremont [S]chool District.” Although the father stated in the
petition that he wanted “to change residential responsibility,” he did not
propose any different residential schedule than the schedule set forth in the
parenting plan. Moreover, in subsequent pleadings, he expressly stated that
he “ha[d] no objection to the children living in Croydon,” that his objection was
“to the children changing schools,” and that the “request” he had filed with the
court was an “object[ion] to the relocation of the children’s school from
Claremont to Croydon.” In its order, the trial court characterized the father’s
petition as seeking “to modify the parenting plan to provide that the children go
to school in the district where he resides,” observing that the father “did not
object to [the mother’s] relocation to Croydon, but did object to the children
leaving the Claremont School District.”

The trial court held an evidentiary hearing on the petition, at which the
father presented his evidence first. The father’s testimony and closing
argument concerned why the Claremont School District was better suited to
the children’s needs, and why Claremont schools were more conveniently
located for the parties. At no point during the hearing did the father object to
the children’s relocation to Croydon, challenge the legitimacy of the purpose for
the relocation or its reasonableness, or argue that the mother was required to
prove the legitimacy and reasonableness of the relocation, or should present
her case first because she bore the burden of proof.

In denying the petition, the trial court articulated several factors that
“weigh[ed] heavily in [the mother’s] favor,” including: (1) the children reside
with the mother most school days; (2) the mother “has provided the vast
majority of [child] care during the school year”; (3) the mother and her family
are readily available to transport the children to their schools in the Croydon
School District; and (4) the smaller school setting provided by Croydon was
more appropriate to the educational needs of one of the children. The father
did not move for reconsideration, but instead, filed the present appeal, arguing
that the trial court erroneously placed the burden of proof upon him under
RSA 461-A:11 rather than upon the mother under RSA 461-A:12, V, and failed
to recognize that RSA 461-A:12 applied.

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 Prior to filing her brief, the mother moved to strike the father’s brief,
arguing that the father had failed to comply with the requirement that he cite
with specificity where in the record he had raised the questions presented for
review, see Sup. Ct. R. 16(3)(b), and that in fact he had never argued in the
trial court that it had applied the incorrect legal standard. In opposing the
motion, the father asserted that he “could not have objected in the lower court
because the issue did not arise until the decision was rendered by the Court,”
and that he “had no way to predict that the Court would use the wrong
standard so an objection could not be filed.” We denied the motion without
prejudice to the mother making her preservation arguments in her brief. In her
brief, the mother again argues that the father’s arguments are not preserved,
and that, because he did not object to relocation, the trial court properly placed
the burden upon him to prove that changing the children’s school district was
in their best interests. We agree with the mother.

We have long held that parties may not have appellate review of issues
that they did not raise in the trial court. Bean v. Red Oak Prop. Mgmt., 151
N.H. 248, 250 (2004). Even when a trial court unexpectedly applies an
incorrect legal standard for the first time in its final order, the party seeking to
challenge the standard applied by the trial court is required to bring the trial
court’s error to its attention in a motion for reconsideration in order to preserve
the issue for appellate review. N.H. Dep’t of Corrections v. Butland, 147 N.H.
676, 678-79 (2002); see also Fam. Div. R. 1.26(F) (stating that, if the trial court
addresses matters in its decision that were not previously raised in the case,
the party seeking to appeal alleged errors concerning those matters is required
to identify such errors in a motion for reconsideration in order to preserve them
for appeal). Indeed, in Butland, we specifically acknowledged that the
appealing party could not have anticipated that the trial court would apply the
legal standard that it applied in the final order. Nevertheless, we held that the
appealing party had not preserved her due process challenge to the trial court’s
application of that standard because she could have, but failed, to raise the
issue in a motion for reconsideration. Butland, 147 N.H. at 679.

In this case, the father does not dispute that he failed to raise his
arguments in the trial court, but argues only that he was not required to do so
because he could not have anticipated that the trial court would fail to apply
RSA 461-A:12, V in its final order. As in Butland, because the father could
have, but failed, to raise his arguments in a motion for reconsideration, we
conclude that the arguments are not preserved. Even if the father had
preserved his arguments, we agree with the mother that, because he expressly

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stated that he did not object “to the children living in Croydon,” he effectively
consented to findings in the mother’s favor under RSA 461-A:12, V.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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