In the Matter of Shalyn McFadden and Jerry Landry

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0430, In the Matter of Shalyn McFadden
and Jerry Landry, the court on April 25, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The petitioner, Shalyn McFadden (Mother), and the
respondent, Jerry Landry (Father), are the unmarried parents of a young child.
In March 2022, the parties submitted a partial parenting plan to which they
both agreed. Following a hearing on offers of proof, the Circuit Court (Joseph,
J.) issued an order resolving issues that remained in dispute, which Mother
now appeals. On appeal, Mother argues that the trial court unsustainably
exercised its discretion and/or erred as a matter of law by: (1) finding that she
lacked a legitimate reason for relocating from Manchester to Massachusetts;
(2) deciding that the child would attend Manchester schools; and (3) starting
the final hearing twenty minutes after its scheduled time, even though neither
she nor her attorney was yet present. We affirm.

The trial court has broad discretion in matters involving parenting rights
and responsibilities. In the Matter of Miller & Todd, 161 N.H. 630, 640 (2011).
Its overriding concern in such matters is the best interest of the child. Id. We
will not overturn the trial court’s decision on a parenting petition absent an
unsustainable exercise of discretion. Id. This standard of review 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. We do not
decide whether we would have ruled differently than the trial court, but rather,
whether a reasonable person could have reached the same decision as the trial
court based upon the same evidence. O’Malley v. Little, 170 N.H. 272, 275
(2017). We will not disturb the trial court’s factual findings unless they are
unsupported by the evidence or legally erroneous. In the Matter of Nyhan and
Nyhan, 147 N.H. 768, 770 (2002).

I. Relocation

In December 2021, Mother filed an emergency motion, seeking
permission to relocate from Manchester, where the parties both lived, to
Tyngsboro, Massachusetts, to which Father objected; the motion was
scheduled for hearing on March 24, 2022. Mother has not included her
emergency motion or Father’s objection thereto in her appendix.
 The parties attended mediation in January 2022 and agreed to several
items, but notably, did not agree that Mother could relocate to Massachusetts
with the child. She did so anyway. Because Mother moved without court
permission, knowing that relocation was a disputed issue and that the court
was going to hold a hearing on the matter in March 2022, the trial court held
her in contempt.

The trial court then examined whether to approve Mother’s relocation,
after the fact, under RSA 461-A:12. See RSA 461-A:12 (Supp. 2022). 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.

Based upon all of the evidence presented, the trial court found that
Mother failed to prove, by a preponderance of the evidence, that she moved to
Massachusetts for a legitimate purpose. The trial court reasoned that Mother’s
decision to move, despite Father’s objection to the move and even though the
court had not yet heard her motion requesting permission to move, supported
its finding that she lacked a legitimate purpose.

The trial court’s determination that Mother lacked a legitimate purpose
was also partially based upon its finding that she had a continued desire to
interfere in the relationship between Father and the child. See Tomasko v.
Dubuc, 145 N.H. 169, 171 (2000). The trial court found “significant evidence
to support Father’s claim that Mother’s behavior reflects her continued desire
to interfere in his relationship with” the child, noting that the court’s file was
“replete with pleadings in which Mother sought to prevent or complicate
Father’s parenting time.” Even though the trial court found that Mother lacked
a legitimate purpose to relocate and that she “achieved a de facto relocation by
selling her home and moving in with her parents absent a prior Court order,”
the court approved the routine schedule to which the parties had agreed in
mediation and did not require Mother to return to Manchester.

On appeal, Mother argues that the trial court erroneously found that she
lacked a legitimate purpose for relocating. She first asserts that the trial court
misinterpreted Tomasko. We disagree.

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 In Tomasko, we set forth the framework that the court in Ireland v.
Ireland, 717 A.2d 676 (Conn. 1998), used to analyze a request by a custodial
parent to relocate with a child. Tomasko, 145 N.H. at 171-72. In discussing
what a legitimate purpose might be for relocating, we observed that the Ireland
court did not define a “legitimate purpose,” but instead gave examples of what
were and were not legitimate purposes. Id. at 171. We noted that, according to
the Ireland court, “a finding that the relocating parent has improper motives,
such as a vindictive desire to interfere in the relationship between the
noncustodial parent and the children, would support a ruling that the
relocating parent lacked a legitimate purpose.” Id. (quotation and brackets
omitted).

Mother contends that, for the trial court to find that she had an improper
motive for relocating, the trial court had to find that she was primarily
motivated by her desire to interfere with Father’s relationship with the child.
She also argues that the Tomasko test is forward looking, and that by looking
at her “alleged history of disrupting [Father’s] relationship with the Child,” the
trial court erred as a matter of law. And, she argues that “[a] party’s alleged
intention to interfere with the other parent’s relationship with the Child is
considered an illegitimate purpose for relocating, but is not a factor used to
determine whether the relocating party had a legitimate purpose to relocate.”
These assertions find no support in Tomasko. We are unpersuaded by
Mother’s arguments that the trial court misinterpreted and misapplied
Tomasko.

Mother next argues that the trial court “overlooked the . . . considerable
evidence supporting [a finding] that [her] financial distress constituted a
legitimate purpose to relocate.” The evidence before the trial court was
conflicting, however, and we defer to the trial court’s judgment on such issues
as resolving conflicts in the testimony, measuring the credibility of witnesses,
and determining the weight to be given evidence. O’Malley, 170 N.H. at 275.

II. School District

Father proposed that the child should attend school in the Manchester
school district, and Mother proposed that the child attend school in the
Tyngsboro school district. The trial court determined that it is in the child’s
best interest to attend Manchester schools because the child has lived in
Manchester for nearly her entire life and will continue to be in Manchester
during Father’s parenting time and because “both parents have resided in
Manchester since the child’s birth and [previously had] agreed that it would be
good for [the child].” The court noted that Mother’s counsel had conceded that
Mother did not move so as to afford the child a better education. The court
further observed that Mother told Father in October 2021 that the Catholic
school near his home would afford the child an “amazing education.” Because

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there is evidence in the record to support these findings, we uphold them. See
In the Matter of Nyhan and Nyhan, 147 N.H. at 770.

Based upon these findings, the trial court reasonably determined that it
is in the child’s best interest to attend Manchester schools. Although Mother
argues that the trial court should have found it to be in the child’s best interest
to attend Tyngsboro schools, her arguments essentially ask us to reweigh the
evidence, which is not our role on appeal. See O’Malley, 170 N.H. at 275.

III. Due Process

The final hearing in this case was scheduled for two hours, beginning at
1:00 p.m. After waiting twenty minutes for Mother and her counsel to arrive,
the court began the hearing by asking Father’s counsel to identify the issues
the parties mediated and those that remained in dispute. Father’s counsel
then began by reviewing her exhibits with the trial court and making an offer of
proof. Mother and her counsel arrived approximately fifteen minutes later.
Mother’s counsel acknowledged that the hearing had been noticed for 1:00
p.m., and explained that she had mistakenly thought it began at 2:00 p.m.
The trial court informed counsel of what had transpired in her absence and
confirmed the issues remaining in dispute and that the parties had agreed to
proceed by offers of proof. Father’s counsel then continued with her offer of
proof regarding her exhibits. The trial court admitted all of Father’s exhibits
into evidence to which Mother’s counsel had no objection. Mother’s counsel
was then allowed to give an offer of proof and submit exhibits.

Mother filed a timely motion to reconsider arguing a single issue — that
the trial court had erred by finding that her “relocation was not for a legitimate
purpose.” The trial court denied Mother’s motion in a margin order, and this
appeal followed.

A few days before filing this appeal, and after the trial court had denied
Mother’s timely motion for reconsideration, Mother filed a motion asking the
court to vacate the final parenting plan and schedule a new hearing in the
matter. In that motion, Mother argued, for the first time, that the trial court
had violated her procedural due process rights, as guaranteed by the State
Constitution, by starting the hearing before she and her counsel were present
and by proceeding with offers of proof. Mother filed this appeal before the trial
court had ruled on her motion for a new trial.

Mother now reiterates her procedural due process arguments on appeal.
Father contends that these arguments are not properly before us, and we
agree. Mother’s late-filed motion for a new trial is insufficient, under the
circumstances, to preserve her due process claims for our review in this
appeal.

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 To preserve an argument for appellate review, we generally require issues
to be raised at the earliest possible time because trial forums should have a full
opportunity to come to sound conclusions and correct errors in the first
instance. Bedford Sch. Dist. v. State of N.H., 171 N.H. 246, 250 (2018). This
is only fair to the parties, the trial forums, and the appellate court. Cogswell
Farm Condo. Ass’n v. Tower Group, Inc., 167 N.H. 245, 253 (2015).

Here, Mother did not object at the final hearing to the fact that the court
had started the hearing when she and her attorney were not yet present, and
her attorney specifically agreed to proceed by offers of proof. Although Mother
filed a timely motion to reconsider, she did not raise due process as an issue,
and she filed her appeal before the trial court had ruled on her motion for a
new trial, effectively vesting this court with exclusive jurisdiction over the
subject matter of the appeal. See Rautenberg v. Munnis, 107 N.H. 446, 447
(1966). Under these circumstances, we conclude that Mother did not preserve
her due process claims for our review and, on that basis, we decline to consider
them. Cf. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 459 (2003)
(concluding that the plaintiff’s motion, filed nearly two months after the trial
had concluded, was insufficient, as a matter of law, to preserve its argument
regarding jury instructions for appellate review); Broderick v. Watts, 136 N.H.
153, 170 (1992) (“If an objection [to jury instructions] is first raised in a post-
trial motion that is filed several days after the conclusion of the trial, the
objection is not timely regardless of whether it is well founded.”).

Affirmed.

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

Timothy A. Gudas,
Clerk

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