In the Matter of Andrew Cullen and Jacqueline Cullen

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0445, In the Matter of Andrew Cullen
and Jacqueline Cullen, the court on February 8, 2024, 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). Andrew Cullen (father) and Jacqueline Furlone (mother),
f/k/a Jacqueline Cullen, were divorced in 2019 and are the parents of one
child. The mother sought to modify the parenting plan by adjusting the
parenting schedule and by granting her sole decision-making responsibility.
The father moved to prevent the child from receiving certain vaccines that
conflict with his religious beliefs. The Circuit Court (Ryan, J.) granted the
mother sole decision-making responsibility with respect to vaccines only but
otherwise denied the mother’s request as well as the father’s motion. The
father appealed and the mother cross-appealed. We affirm.

I

The following facts were found by the trial court or are supported by the
record. The parties divorced by final decree in 2019. The parties have one
child, who was three years old at the time of the divorce. Under the parenting
plan, the parents had joint decision-making authority. The parents disagreed
about vaccines for the child and were unable to resolve the dispute. In April
2022, the mother filed a motion to modify the parenting plan seeking, inter
alia, a change to the parenting schedule and an order granting her sole
decision-making responsibility. The father filed a motion objecting to the child
receiving certain vaccines that conflict with his religious beliefs.

Following a hearing, the trial court issued a detailed order ruling on the
parties’ motions. First, the court found that the mother failed to “establish[ ]
the existence of [a] necessary predicate circumstance” for modification of the
parenting schedule. See RSA 461-A:11, I (2018). Regarding the mother’s
request for sole decision-making responsibility, the court considered the best
interest factors under RSA 461-A:6 and denied the mother’s request for sole
decision-making responsibility generally. See RSA 461-A:6, I (Supp. 2022).
However, the court found that “it is in [the child’s] best interest to allow [the
mother] to make the final decision with respect to vaccinations after
consultation with [the child’s] primary care physician.” Consequently, the
court denied the father’s motion.
 Both parties filed motions to reconsider. The court “decline[d] to
reconsider its Order with respect to medical decision-making regarding
vaccines” as well as the parenting schedule. This appeal and cross-appeal
followed.

II

When reviewing a trial court’s decision on parenting rights and
responsibilities, our role is limited to determining whether it clearly appears
that the trial court engaged in an unsustainable exercise of discretion. In the
Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). This standard
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. In the
Matter of Summers & Summers, 172 N.H. 474, 479 (2019). 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 trial
court’s factual findings are binding upon this court if they are supported by the
evidence and are not legally erroneous. Id.

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.

III

We first address the father’s appeal. He argues that the trial court
violated his religious rights in awarding the mother sole decision-making
responsibility regarding vaccines.

The parents, who had joint decision-making responsibility, were at an
impasse. As we have previously observed, the legislature has established a
procedure for courts to resolve disputes between parents regarding parental
rights and responsibilities. Kurowski, 161 N.H. at 589 (citing RSA 461-A:4, :6,
:11). Specifically, RSA 461-A:11, II authorizes a court to modify, inter alia, the
section of a permanent parenting plan addressing decision-making
responsibility “based on the best interest of the child.” RSA 461-A:11, II
(2018); see Summers, 172 N.H at 483. Because the parties were at an
impasse, the trial court was confronted with awarding decision-making
responsibility, applying the best interest standard. See Summers, 172 N.H. at
483; cf. Kurowski, 161 N.H. at 589 (“Because the parties could not reach a
joint decision and father sought resolution in court, the trial court was left to

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decide the dispute, guided by the best interests standard set forth in RSA 461-
A:6, I.”).

On appeal, “[o]ur only role is to decide whether the trial court committed
legal error or unsustainably exercised its discretion.” Kurowski, 161 N.H. at
581. We are not called upon to decide the merits of the underlying
disagreement between the parties with regard to certain vaccines. For
example, in Kurowski, the parties were at an impasse over whether the child
should attend public school or be home-schooled. Id. We observed, “[w]hile
[this case] involves home schooling, it is not about the merits of home versus
public schooling.” Id. Similarly, this appeal is not about religion or childhood
vaccination. Rather, our role is to determine, under the highly deferential
standard of review set forth above, whether the trial court’s conclusion that
reallocation of decision-making responsibility was in the child’s best interest
was supported by the record and reasonable. See Summers, 172 N.H. at 479.

We have stated that “resolution of the best interests of a child depends to
a large extent upon the firsthand assessment of the credibility of witnesses,
and the findings of the trial court are binding upon this court if supported by
the evidence.” Kurowski, 161 N.H. at 585. Here, the trial court found that “it
is in [the child’s] best interest to allow [the mother] to make the final decision
with respect to vaccinations after consultation with [the child’s] primary care
physician,” “whose position on vaccinations is unknown to this Court.” Based
on our review of the record, we conclude that under these circumstances, the
evidence provides an objective basis sufficient to sustain the trial court’s
finding. Because the father’s remaining arguments were either not preserved
or were not sufficiently developed for appellate review, we decline to address
them. See State v. Blackmer, 149 N.H. 47, 49 (2003).

IV

We next turn to the mother’s arguments in her cross-appeal. First, the
mother argues that “the trial court applied the incorrect legal standard when
ruling on the [mother’s] petition for modification of a final parenting plan.”
(Capitalization and bolding omitted.) The mother invokes our plain error rule.
See Sup. Ct. R. 16-A.

The plain error rule allows us to correct errors not raised in the trial
court under certain limited circumstances. Kurowski, 161 N.H. at 591. We
use this rule sparingly, limiting it to those circumstances in which a
miscarriage of justice would otherwise result. Id. To find plain error: (1) there
must be error; (2) the error must be plain; (3) the error must affect substantial
rights; and (4) the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings. Id. Generally, to satisfy the burden of
demonstrating that an error affected substantial rights under the third prong,

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the party seeking appellate review must demonstrate that the error was
prejudicial; that is, that it affected the outcome of the proceeding. Id.

RSA 461-A:5 provides that “except as provided in paragraph III, in the
making of any order relative to decision-making responsibility, there shall be a
presumption, affecting the burden of proof, that joint decision-making
responsibility is in the best interest of minor children.” RSA 461-A:5 (2018).
We have previously determined that “pursuant to RSA 461-A:11, III, the moving
party bears the burden of proof in requests to modify decision-making
responsibility, and there is no presumption that joint decision-making
responsibility is in the best interests of minor children in this context.” In the
Matter of Kelly & Fernandes-Prabhu, 170 N.H. 42, 52 (2017); see Summers,
172 N.H. at 483. Here, in the context of a request for modification of decision-
making responsibility under RSA 461-A:11, III, the trial court “note[d] the
statutory presumption that joint decision-making is in [the child’s] best
interest” and found that “[w]ith the exception of [the vaccine issue],” “this
presumption has not yet been fully rebutted based upon the evidence
presented.” Therefore, the trial court erred by applying the statutory
presumption of RSA 461-A:5 to a modification of decision-making responsibility
under RSA 461-A:11, III, and such error was plain. See Kelly, 170 N.H. at 52.

We next consider the third prong of the plain error analysis. In
determining whether awarding mother sole decision-making responsibility was
in the best interest of the child, the trial court considered each factor described
in RSA 461-A:6, I. The record supports the trial court’s findings that both
parties contributed to their communication issues and that despite these
issues they have not lost all ability to communicate with each other to make
decisions regarding their child. Notably, the trial court emphasized that the
parties have not participated in court-ordered counseling, which the court
reasoned “must occur before the Court intends to revisit the parties’ inability to
communicate.” Given the trial court’s careful analysis of the best interest
factors, we can confidently state that the trial court would have reached the
same conclusion in the absence of error. Cf. State v. Leroux, 175 N.H. 204,
209 (2022) (“We will find prejudice under the third prong when we cannot
confidently state that the fact-finder would have returned the same verdict in
the absence of the error.”). Accordingly, we conclude that the mother has not
established that the trial court committed plain error that affected the outcome
of the proceeding. See Kurowski, 161 N.H. at 592.

Next, the mother contends that, “based upon the facts of this case,” the
trial court erred by failing to award her sole decision-making responsibility.
Based on our review of the record, we conclude that the trial court sustainably
exercised its discretion in determining that the mother failed to prove that
awarding her sole decision-making responsibility for all issues is in the child’s
best interest. See RSA 461-A:11, III (“For the purposes of this section, the
burden of proof shall be on the moving party.”). To the extent the mother asks

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this court, in effect, to re-weigh the evidence, we decline the invitation as re-
weighing the evidence is not our role on appeal. See Kurowski, 161 N.H. at
585.

The mother further argues that the trial court erred by not modifying the
parenting schedule because (1) “the evidence presented at trial was more than
sufficient” to meet “her burden of proof under RSA 461-A:11(I)(c)” and (2) under
RSA 461-A:11, I(f) “the proposed changes were truly minimal and would be
beneficial to [the child] and the parties.” We are unpersuaded.

RSA 461-A:11, I, grants a court authority to modify a permanent order
concerning a change to the parenting schedule if it finds one of the predicate
circumstances specified in the statute. See Summers, 172 N.H. at 483. One
such circumstance is “[i]f the court finds by clear and convincing evidence that
the child’s present environment is detrimental to the child’s physical, mental,
or emotional health, and the advantage to the child of modifying the order
outweighs the harm likely to be caused by a change in environment.” RSA
461-A:11, I(c). Here, although the trial court “heard ample evidence that the
communication between the parties is difficult,” the court ultimately found that
“[t]here was insufficient credible evidence presented from which the Court
could find that either party met the burden of proving by clear and convincing
evidence that [the child’s] present environment is detrimental to [the child’s]
physical, mental, or emotional health.” (Emphasis and bolding omitted.)
Having reviewed the record, we conclude that it establishes an objective basis
sufficient to sustain the trial court’s finding. See Summers, 172 N.H. at 479.

RSA 461-A:11, I(f) provides that the court may modify a permanent order
if “[t]he modification makes either a minimal change or no change in the
allocation of parenting time between the parents, and the court determines that
such change would be in the best interests of the child.” Here, under the
mother’s proposed schedule, the father would gain an overnight visit with the
child on the first weekend of their two-week schedule but lose an overnight
visit on the second weekend, creating a six-day gap in the father’s parenting
time. Observing that the current schedule does not create such a gap, the
court reasoned that “[b]ecause of the increased number of days between [the
father’s] parenting time that would result from [the mother’s] proposal, the
Court cannot find the change to be ‘minimal.’” Based on our review of the
record, we conclude that the mother has failed to show that the trial court

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engaged in an unsustainable exercise of discretion in finding that RSA 461-
A:11, I(f) had not been met.

Accordingly, we affirm the trial court’s decision.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.
Timothy A. Gudas,
Clerk

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