In the Matter of Nicole McCormack Parker and Roy Parker

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0029, In the Matter of Nicole McCormack
Parker and Roy Parker, the court on March 28, 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). The respondent, Roy Parker, appeals a final decree entered
by the Circuit Court (Curran, J.) in his divorce from the petitioner, Nicole
McCormack Parker. He challenges the trial court’s allocation of parenting
rights and responsibilities, its decision to award child support commencing on
a date subsequent to the final hearing but prior to its decree, and its decision
to treat the respondent’s joint interest in certain real property held with his
mother and brother as marital property. We affirm.

The trial court has broad discretion in fashioning a final divorce decree.
In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014). Its discretion
encompasses decisions concerning parenting rights and responsibilities, child
support, and property distribution. Id.; In the Matter of Kurowski & Kurowski,
161 N.H. 578, 585 (2011). Its discretion likewise extends to resolving conflicts
in the testimony, assessing the credibility of the witnesses, and evaluating the
weight of the evidence presented. Kurowski, 161 N.H. at 585. Indeed, the trial
court may accept or reject, in whole or in part, the testimony of any witness,
including that of a guardian ad litem (GAL), and is not required to believe even
uncontested testimony. In the Matter of Aube & Aube, 158 N.H. 459, 465-66
(2009); see In the Matter of Heinrich & Curotto, 160 N.H. 650, 657-58 (2010).

We will not overturn the trial court’s rulings on such matters absent an
unsustainable exercise of discretion, reviewing the record only to determine
whether it contains an objective basis to sustain the court’s discretionary
judgments. Spenard, 167 N.H. at 3. If the trial court could reasonably have
reached its findings on the evidence before it, they will stand. Id.

The respondent argues that the trial court erred by adopting the
parenting plan proposed by the GAL approximately a month and a half prior to
the final hearing because, he asserts, the GAL’s testimony did not establish
that the GAL’s proposed parenting plan was in the children’s best interests,
particularly with respect to the relatively lesser amount of parenting time the
respondent was given with the children. Instead, the father argues that both
the GAL’s testimony and RSA 461-A:2, I (2018) compelled the trial court to
grant the parents equal parenting time.
 Contrary to the respondent’s suggestion, nothing in RSA 461-A:2, I(a)
compels the trial court to award equal parenting time. Rather, the statute
identifies that it is the general “policy of this state” to “[s]upport frequent and
continuing contact between each child and both parents,” and to “[e]ncourage
parents to share in the rights and responsibilities of raising their children.”
RSA 461-A:2, I(a), (b). The parenting schedule adopted by the trial court
supports “frequent and continuing contact” between the respondent and his
minor children and the sharing of parenting rights and responsibilities. Based
upon our review of the record, we conclude that the parenting plan ordered by
the trial court was well within its discretion. See Kurowski, 161 N.H. at 585.

The respondent next argues that the trial court erred by ordering him to
pay child support pursuant to the child support guidelines effective April 1,
2022, a date after the final hearing but before the September 20, 2022 final
decree, and to pay $100 per week toward the arrearage created by a difference
between what he was paying under the temporary order and the amount
ordered in the final decree. The respondent contends that the trial court
unsustainably exercised its discretion because he was not responsible for the
trial court’s delay, because the decree imposed an immediate arrearage without
prior notice, and because the trial court did not consider that he had allegedly
paid more than his temporary child support obligation between the final
hearing and the decree.

Uniform support orders are generally effective as of the date of the clerk’s
notice of decision “unless the court specifies, either orally or in writing, another
effective date.” Fam. Div. R. 2.29(B)(1)(c) (emphasis added). The respondent
cites no authority prohibiting the issuance of a child support order effective
after the final hearing but prior to the decree. Nor are we aware of any such
authority. Cf. Walker v. Walker, 133 N.H. 413, 418 (1990) (observing that trial
courts may generally “make alimony awards retroactive computed at any time
subsequent to the commencement of the suit for divorce”); RSA 458-C:7, II
(authorizing modification of child support effective as of the date of notice of the
petition to modify). Here, the respondent himself proposed an effective date of
April 1, 2022 for child support. Moreover, in denying the respondent’s motion
to reconsider, the trial court observed that it had imposed “a very modest
amount to address the arrears, given th[e] time lapse” between April 1 and the
September 20 final decree, and that, in light of the respondent’s income and
the parties’ arguments and proposals on child support, it did not deem the
arrearage obligation to be punitive.

Finally, we note that, although the respondent claimed on
reconsideration that he had “paid above and beyond his temporary child
support obligation” between April 1 and September 20, 2022, he neither
requested from the court a credit for amounts he had allegedly overpaid nor
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sought to establish what those amounts may have been. The respondent’s
claim that the arrearage obligation is tantamount to an award of “punitive
damages” requires no further discussion. See Vogel v. Vogel, 137 N.H. 321,
322 (1993). On this record, we cannot conclude that the trial court
unsustainably exercised its discretion. See Spenard, 167 N.H. at 3.

Finally, the respondent argues that the trial court erred by treating his
joint-tenancy-with-rights-of-survivorship interest in vacation property as
marital property. We disagree. The respondent does not dispute that he holds
a present undivided one-third joint-tenancy-with-rights-of-survivorship interest
in the property. See Routhier, 175 N.H. at 9, 11-14 (2022). Given the broad
definition of marital property, we find no error.

The request in the petitioner’s brief for an award of attorney’s fees
incurred on appeal is denied.

Affirmed.

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

Timothy A. Gudas,
Clerk

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