In the Matter of Michael Boisvert and Nicole Lariviere

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0147, In the Matter of Michael Boisvert
and Nicole Lariviere, the court on July 1, 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, Nicole Lariviere (mother), appeals the final
parenting plan issued by the Circuit Court (Lown, J.), following a hearing, on
the parenting petition filed by the petitioner, Michael Boisvert (father),
regarding the parties’ child, A.B. The mother argues that the trial court erred
in: (1) ordering a final parenting plan, rather than enforcing the parties’
temporary parenting plan and agreement regarding visitation; (2) weighing the
evidence regarding the father’s alleged lack of compliance with the temporary
parenting plan and visitation agreement; and (3) failing to comply with RSA
461-A:5, III (2018) and failing to properly weigh the evidence regarding
domestic violence protective orders that had been issued against the father.
We affirm.

The mother first argues that the trial court erred in ordering its final
parenting plan, rather than enforcing the parties’ temporary parenting plan
and agreement regarding visitation. On appeal, we will affirm the findings and
rulings of the trial court unless they are unsupported by the evidence or are
legally erroneous. In the Matter of Nyhan and Nyhan, 147 N.H. 768, 770
(2002). In its final order, the trial court found that the temporary parenting
plan and visitation agreement were temporary agreements, approved as
temporary orders, regardless of whether the father entered into the agreements
under duress, as he claimed at the final hearing. At the June 24, 2022 status
conference, after the parties had submitted their temporary parenting plan and
visitation agreement, they agreed that the case should remain “on the wait list”
for a final hearing, so that they could have “a final parenting plan in place
sooner rather than later.” We can discern no reason for the trial court to hold
a final hearing, once it had approved the parties’ temporary parenting plan and
visitation agreement, if the agreements were intended to be final. Accordingly,
we conclude that the record supports the court’s finding that the temporary
parenting plan and visitation agreement were temporary agreements, and that
the court did not err in ordering a final parenting plan. See id.

The mother next argues that the trial court erred in weighing the
evidence regarding the father’s alleged lack of compliance with the temporary
parenting plan and visitation agreement. Conflicts in the testimony, questions
about the credibility of witnesses, and the weight assigned to testimony are
matters for the trial court to resolve. In the Matter of Kurowski & Kurowski,
161 N.H. 578, 585 (2011). The trial court noted that the parties “attempted to
work out time for [the father] to spend with [the child],” but that it had “not
gone well due to friction and animosity between the parties and their
representatives.” The court found that “both parties are loving parents who
wish to spend as much time as they can with [the child].” We will not disturb
the trial court’s findings if they could reasonably have been made. Id. We
conclude that the trial court’s findings regarding the father’s alleged lack of
compliance with the temporary parenting plan and visitation agreement could
reasonably have been made given the evidence presented at the final hearing.
See id.

The mother next argues that the trial court failed to comply with RSA
461-A:5, III (2018) and failed to properly weigh the evidence regarding domestic
violence protective orders that had been issued against the father. RSA 461-
A:5, III (2018) provides, “Where the court finds that abuse as defined in RSA
173-B:1, I has occurred, the court shall consider such abuse as harmful to
children and as evidence in determining whether joint decision-making
responsibility is appropriate. In such cases, the court shall make orders for
the allocation of parental rights and responsibilities that best protect the
children or the abused spouse or both. If joint decision-making responsibility
is granted despite evidence of abuse, the court shall provide written findings to
support the order.”

The father argues that the mother failed to preserve her RSA 461-A:5, III
issue for appellate review because she did not cite RSA 461-A:5, III in the trial
court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (noting
that parties may not have judicial review of matters not raised in the trial
court). Assuming, without deciding, that the issue is preserved for review, we
conclude that the trial court’s order complies with RSA 461-A:5, III.

The trial court noted that the parties’ relationship was “irreparably
damaged” by a domestic violence incident that had occurred more than three
years earlier. However, the court found that the father “was a good father to
[the child] for the first 3 and half years of [the child’s] life,” that he remains “a
loving and capable father,” and that he is “capable of addressing any of the
health and other needs of [the child].” The court’s parenting plan provides for
supervised and virtual visits with the father initially, increasing to overnight
parenting time, to be accompanied by other persons specified by the court in
its order. The court ordered that, after 90 days, a status hearing would be held
to address the potential for increased, unsupervised parenting time with the
child, with the goal of enabling the father to spend up to fifty percent of the
time with the child, on alternating weeks. The court found this parenting plan
to be in the child’s best interest. Based upon this record, we conclude that the
court’s order complies with RSA 461-A:5, III, and that its findings regarding the

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father’s history of domestic violence could have been reasonably made. See
Kurowski, 161 N.H. at 585.

Affirmed.

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

Timothy A. Gudas,
Clerk

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