In the Matter of Rourke & Rourke

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

10th Circuit Court-Portsmouth Family Division
Case No. 2022-0304
Citation: In the Matter of Rourke & Rourke, 2024 N.H. 9

IN THE MATTER OF ALEXANDRA ROURKE AND SEAN ROURKE

Argued: March 28, 2023
Opinion Issued: February 15, 2024

Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
on the brief and orally), for the petitioner.

Shaheen & Gordon, P.A., of Nashua (Andrew J. Piela on the brief and
orally), for the respondent.

BASSETT, J.

¶1 The petitioner, Alexandra Gamble (Mother) f/k/a Alexandra Rourke,
appeals the order of the Circuit Court (Pendleton, J.) modifying the parties’
parenting plan. See RSA 461-A:11, I(g) (2018). Because we determine that the
court sustainably exercised its discretion in modifying the parenting plan
pursuant to RSA 461-A:11, I(g), and did not violate Mother’s procedural due
process rights, we affirm.

¶2 The trial court found, or the record supports, the following facts.
Mother and the respondent, Sean Rourke (Father), are divorced and have three
children. On September 13, 2019, the trial court approved a final parenting
plan, including an addendum. The addendum states, “At this time, [Mother] is
living in the NH Seacoast area and [Father] is living primarily in Costa Rica.” It
goes on to state, “The parties intend to exercise a flexible schedule based on
[Father’s] time in the Seacoast and in Costa Rica.” The addendum provides
that if the parties do not agree on a schedule, “[d]uring the months that
[Father] is in the NH Seacoast Area,” he would be entitled to “at least one
weeknight dinner/after school visit per week, and at least two weekends per
month.” The addendum also declares that Father would be entitled to at least
three non-consecutive weeks with the children in Costa Rica during their
school vacations or summer breaks.

¶3 In April 2021, Father filed a petition to bring forward and modify the
parenting plan. In the petition, Father stated that after the agreed parenting
plan was established, he decided not to reside in Costa Rica, instead residing
in Rye, New Hampshire, in close proximity to Mother’s Kittery, Maine
residence. Father cited RSA 461-A:11, I(g) as a statutory basis for
modification, arguing that “[g]iven both parties’ expected residences at the time
of divorce (Rye and Costa Rica) have changed (Kittery and Rye), as well as the
distances between them . . . it would be in the children’s best interests to
modify the parenting schedule.” At a hearing on the petition, Mother argued
that because the plan contemplated Father living in both the Seacoast area and
Costa Rica, there was not a substantial change in circumstances when he
chose to live primarily in the Seacoast area.

¶4 On May 3, 2022, the trial court issued an order ruling that Father
met his burden under RSA 461-A:11, I(g) to modify the parenting plan. The
court noted that the parenting plan was premised on Father living primarily in
Costa Rica and “was not written contemplating that [Father] was living full time
in Rye, New Hampshire.” The court also found the plan did “not serve the
children’s best interest given that both parents live locally.” The court rejected
both parties’ proposed modifications and instead issued a modified final
parenting plan of its own creation providing, among other things, that the
children would be with Father on Mondays and Tuesdays, Mother on
Wednesdays and Thursdays, and with the parents on alternating weekends.
The order’s notice of decision issued on May 4.

¶5 On May 19, Mother filed a motion for late entry of a motion to
reconsider and an untimely motion to reconsider. Fam. Div. R. 1.26(F). On
May 31, the trial court granted the motion for late entry, with the notice of
decision issuing on June 2. On June 1, Mother filed a Rule 7 discretionary
appeal. Sup. Ct. R. 7(1)(B). On June 10, the trial court largely denied Mother’s
motion to reconsider. We accepted Mother’s appeal on July 21.

¶6 On appeal, Mother argues: (1) the trial court erred when it modified
the parenting plan based on RSA 461-A:11, I(b) and (h) without providing her

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notice or an opportunity to present evidence on those grounds in violation of
her State and Federal procedural due process rights; (2) Father did not meet
his burden to modify the parenting plan under RSA 461-A:11, I(g); and (3) the
court erred when it made additional changes to the parenting plan that were
not in Father’s petition, thereby depriving her of meaningful notice of the
potential changes in violation of her State and Federal procedural due process
rights.

¶7 Father counters that Mother’s appeal should be dismissed in its
entirety because none of the issues are preserved for appellate review.
Alternatively, Father argues that Mother’s due process arguments are
unpreserved for lack of development within her motion to reconsider.
Preservation issues aside, Father argues that the court correctly interpreted the
parenting plan when it ruled that modification was appropriate under RSA
461-A:11, I(g).

¶8 As an initial matter, we consider Father’s preservation arguments.
In arguing that Mother’s entire appeal is unpreserved, Father relies on
Rautenberg v. Munnis, 107 N.H. 446 (1966), for the proposition that “[a]s a
general rule the perfection of an appeal divests the Trial Court of jurisdiction of
the cause and transfers it to the appellate court.” Rautenberg, 107 N.H. at
447. Father asserts that because Mother filed an appeal in this court while her
motion to reconsider was pending in the trial court, the trial court was divested
of jurisdiction to rule on the motion. Father argues that Mother’s appellate
arguments are unpreserved because they are entirely embraced by her
jurisdictionally infirm motion to reconsider. We disagree.

¶9 This court has consistently held that we will not consider issues
raised on appeal that were not presented in the trial court. Vention Med.
Advanced Components v. Pappas, 171 N.H. 13, 27 (2018). This principle
applies to legal issues that arise after trial as a result of the court’s order. Id.
To satisfy this preservation requirement, any issues which could not have been
presented to the trial court prior to its decision must be presented to it in a
motion for reconsideration. Id.

¶10 Father’s reliance on Rautenberg is misplaced. In Rautenberg, after
the plaintiffs’ appeal from a decree of the superior court was docketed in this
court, the plaintiffs filed a motion in the trial court for a new trial on the basis
of newly discovered evidence. Rautenberg, 107 N.H. at 447. In this court, the
plaintiffs moved to remand the appeal. Id. We stated, “the Trial Court is not in
a position to act on the motion for a new trial unless the case is remanded for
that purpose.” Id. at 448. Implicit in this statement is the conclusion that
upon the perfection of the appeal, absent a remand, the trial court was
divested of jurisdiction to rule on the motion for a new trial. See id. at 447.

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 [¶11] Here, Mother’s filing of a notice of appeal on June 1 did not divest
the trial court of jurisdiction. On the previous day, May 31, the trial court had
granted Mother’s motion for late entry of her motion for reconsideration. At
that point, the motion for reconsideration became pending and, until it was
ruled on, there was no “decision on the merits” from which to appeal. See Sup.
Ct. R. 7(1)(B) and (C) (noting that the definition of “decision on the merits”
“includes decisions on motions made after an order, verdict, opinion, decree or
sentence”). The trial court’s ruling on the motion for reconsideration on June
10 was the “decision on the merits” for purposes of an appeal under Supreme
Court Rule 7(1)(B). On July 21, we accepted the case. See Jesurum v.
WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016) (a premature filing of an appeal
when a motion for reconsideration was pending did not deprive the trial court
of jurisdiction from ruling on the motion).

¶12 Although Mother’s due process arguments under the State
Constitution are unpreserved due to lack of development, see In the Matter of
Hampers & Hampers, 154 N.H. 275, 291 (2006) (finding that a reference to
“due process” in the petitioner’s motion for reconsideration “was insufficient to
preserve a claim under the State Constitution”), we find that she has preserved
her arguments under the Federal Constitution. See State v. Burke, 153 N.H.
361, 363 (2006) (“We have never held that a party’s failure to include a citation
to a specific provision of the Federal Constitution precludes appellate review.”).
We now turn to the merits of Mother’s appeal.

¶13 Mother argues that Father did not meet his burden to modify the
parenting plan under RSA 461-A:11, I(g) based on a change in residency
because the plan envisioned he might reside in New Hampshire and/or Costa
Rica and it provided visitation for both locations. In support of her argument,
Mother points to the language of the plan, as well as testimony at the hearing,
reflecting that at the time the plan was executed, Father was actually living in
New Hampshire and not Costa Rica. We conclude that the trial court’s decision
to modify the parenting plan pursuant to RSA 461-A:11, I(g) was a sustainable
exercise of discretion.

¶14 We will not overturn a trial court’s modification of an order
regarding parenting rights and responsibilities unless it clearly appears that
the trial court unsustainably exercised its discretion. In the Matter of
Summers & Summers, 172 N.H. 474, 478-79 (2019). This means that we
review 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. at 479. The
trial court’s discretion necessarily extends to matters such as assigning weight
to evidence and assessing the credibility and demeanor of witnesses. Id.
Conflicts in the testimony, questions about the credibility of witnesses, and the
weight assigned to testimony are matters for the trial court to resolve. Id. The

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trial court’s factual findings are binding upon this court if they are supported
by the evidence and are not legally erroneous. Id.

¶15 Our standard of review is not whether we would rule differently
than the trial court, but whether a reasonable person could have reached the
same decision as the trial court based upon the same evidence. Id. We will not
substitute our judgment for that of the trial court. Id. Nor will we reweigh the
equities. Id.

¶16 RSA 461-A:11, I, grants a court authority to modify a permanent
order concerning parental rights and responsibilities if it finds one of the
specified predicate circumstances. In the Matter of Kelly & Fernandes-Prabhu,
170 N.H. 42, 47 (2017); RSA 461-A:11, I. The trial court ruled that Father met
his burden under RSA 461-A:11, I(g) to modify the parenting plan. RSA 461-
A:11, I(g) provides, “If one parent’s allocation of parenting time was based in
whole or in part on the travel time between the parents’ residences at the time
of the order and the parents are now living either closer to each other or
further from each other by such distance that the existing order is not in the
child’s best interest.” RSA 461-A:11, I(g). The court noted that the parenting
plan was premised on Father living primarily in Costa Rica and “was not
written contemplating that [Father] was living full time in Rye, New
Hampshire.” The court said that “[e]vidence does not support [Mother’s]
argument that the current Parenting Plan contemplated the current situation
with both parties living in the Seacoast region. The Parenting Plan
contemplated [Father] being transient when in the Seacoast, recognizing he
would primarily be in Costa Rica.”

¶17 We conclude that the trial court’s factual findings are supported by
the evidence and are not legally erroneous. The record establishes an objective
basis sufficient to sustain the trial court’s decision to modify the parenting
plan. Accordingly, we conclude the trial court sustainably exercised its
discretion when it modified the parenting plan pursuant to RSA 461-A:11, I(g).

¶18 Next, Mother argues that the trial court violated her procedural due
process rights when it modified “the parenting plan based upon [RSA 461-A:11,
I(b) and I(h)] . . . as these grounds were not pled by Father, thus depriving
Mother of notice at a ‘meaningful time.’” RSA 461-A:11, I(b) permits
modification:

If the court finds repeated, intentional, and unwarranted interference
by a parent with the residential responsibilities of the other parent, the
court may order a change in the parental rights and responsibilities
without the necessity of showing harm to the child, if the court
determines that such change would be in accordance with the best
interests of the child.

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RSA 461-A:11, I(b). RSA 461-A:11, I(h) permits modification: “If one parent’s
allocation or schedule of parenting time was based in whole or in part on his or
her work schedule and there has been a substantial change in that work
schedule such that the existing order is not in the child’s best interest.” RSA
461-A:11, I(h).

¶19 We disagree with the premise of Mother’s argument that the trial
court modified the parenting plan based on RSA 461-A:11, I(b) and (h). We
begin by reviewing the trial court’s order. In its order, the trial court noted that
the petition to modify referenced RSA 461-A:11, I(d) and (g), but observed that
“[f]acts pled in the pleading also implicated (b) and to a lesser degree (h).” The
court observed that the parenting plan “was primarily based upon an
assumption that [Father] would be living in Costa Rica a large part of the time,
thus implicating [RSA 461-A:11, I(g)].”

¶20 The court found “sufficient evidence to meet [Father’s] burden
under [RSA 461-A:11, I(g)] to modify the Parenting Plan, at a minimum.” The
court went on to discuss reasons why the parenting plan did not serve the
children’s best interests, observing that “[t]he lack of detail in the current
Parenting Plan leaves [Mother] subject to [RSA 461-A:11, I(b)] challenges
relating to claims of ‘repeated, intentional and unwarranted interference by a
parent with the residential responsibilities of the other parent.’” The court
“agree[d] with [Father] that section [461-A:11, I(g)] of the modification statute
does [apply].” The court “recognize[d] that an argument could be made that
[Father] was going to be working in Costa Rica primarily, but is now working in
the Seacoast area. See RSA 461-A:11, I(h).” The court noted that this
argument was not raised by Father, “but facts were elicited to cause the Court
to consider its application.”

¶21 We hold that the trial court did not base its decision to modify the
parenting plan on RSA 461-A:11, I(b) and (h). Rather, the court found that
Father met his burden to modify the parenting plan under RSA 461-A:11, I(g).
It is plain from the record that Father pled RSA 461-A:11, I(g) as a statutory
ground to modify the parenting plan and that Mother contested that pleading.
As only one statutory factor had to be proven to lawfully modify the plan, see
RSA 461-A:11, I, it is of no moment that the trial court referenced and
considered other, unpled, statutory factors in its order. Accordingly, the
court’s references to RSA 461-A:11, I(b) and (h) in its order do not violate
Mother’s procedural due process rights.

¶22 Finally, Mother also argues that the trial court violated her
procedural due process rights in making changes to the parenting plan that
were not sought in Father’s petition. The trial court modified the existing
parenting plan, inter alia, omitting provisions found in the prior plan relating to
medical treatment and changing a provision relating to vacation time. We
conclude that the trial court had statutory authority to make these

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modifications. RSA 461-A:11, I, grants a court authority to modify a
permanent order concerning parental rights and responsibilities if it finds one
of the specified predicate circumstances. Kelly, 170 N.H. at 47. The statute
does not limit the provisions of the permanent order that may be modified once
the court finds that a statutory predicate circumstance is satisfied. See RSA
461-A:11, I. Therefore, we conclude that Mother received adequate notice that
the trial court could modify other aspects of the permanent order beyond
modifications to the routine schedule sought by Father. Accordingly, we hold
that the trial court’s modifications to the permanent order do not violate
Mother’s procedural due process rights.

Affirmed.

MACDONALD, C.J., and HANTZ MARCONI and DONOVAN, JJ.,
concurred; HICKS, J., sat for oral argument but did not participate in the final
vote, see N.H. CONST. pt. II, art. 78.

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