In re Kosek

Broderick, C.J., dissenting. Because I conclude, based upon the record before us, that the trial court erred as a matter of law in awarding the respondent additional visitation time as a result of the petitioner’s contempt, I respectfully dissent. See In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500 (2004). Children have independent interests in divorce proceedings and may not be used as pawns to punish a non-cooperative parent. See Webb v. Knudson, 133 N.H. 665, 672-73 (1990). While modification of custody or visitation may well be triggered as a consequence of contemptuous conduct by an offending parent, it should only occur upon an express and supportable finding that modification is in the best interests of the children. The relevant facts giving rise to the contempt sanction are undisputed and fully recited by the majority. On appeal, the petitioner argues several errors with respect to the sanction, including: (1) that the court committed an unsustainable exercise of discretion in modifying the parties’ custody order without considering and making findings as to the best interests of the children; and (2) that because the contempt sanction was criminal, rather than civil, the trial court erred in failing to afford her the procedures which accompany criminal contempt proceedings. As to the latter argument, the majority concludes that the contempt in this case was civil, rather than criminal. Because I believe that the specific contempt sanction in this case was improper because it did not involve a best interests analysis with requisite findings, I do not address the nature of the contempt itself. We have previously stated that custody modifications are not a proper means of punishing a non-cooperative parent: Children are not chargeable with the misconduct of their parents and should not be uprooted from their home in order to discipline a recalcitrant parent. Indeed, the award of custody is not a device to reward or punish parents, and a violation of a court decree by one of the parties is not necessarily controlling on the question of custody. Thus ... an award of custody must ultimately be based upon the best interests of the child, and may not be sustained as a, means of enforcing the visitation rights of the noncustodial parent. Rather, the contempt powers of the court may be exercised to that end. *730 Webb, 133 N.H. at 672-73 (quotation, citation and brackets omitted; emphasis added); see Houde v. Beckmeyer, 116 N.H. 719, 721 (1976). Here, the trial court ordered: “Because of the contempt, [the respondent] is awarded additional visitation time with the girls. He shall be allowed visits between 3:30 [p.m.] and 8:30 [p.m„] on non-custodial Sundays.” (Emphasis added.) On their face, the trial court’s words demonstrate that the additional visitation time awarded to the respondent was in direct response to the petitioner’s contemptuous behavior, and to enforce the respondent’s visitation rights. I see no meaningful difference between awards of custody and awards of visitation as a means to punish contempt and, therefore, I believe that the rule of Webb , that custody awards are not devices to punish or reward parents, applies to visitation awards. Because the trial court’s award of additional visitation time to the respondent was a direct response to the petitioner’s contemptuous behavior, rather than pursuant to a best interests finding, I believe that the trial court’s order was not in keeping with the mandate of Webb . The majority acknowledges Webb , but nevertheless concludes that “the additional custodial time awarded to the respondent does not amount to uprooting the children.” In practice, however, what one child needs to feel secure and stable may differ significantly from what another child needs. Therefore, while five hours of visitation every other Sunday may have little to no effect on one child’s feelings of security and stability, it may have a tremendous impact on those of another child. Cf. Perreault v. Cook, 114 N.H. 440, 443 (1974) (recognizing that “[t]he shuffling of a child back and forth between a father and mother can destroy his sense of security, confuse his emotions, and greatly disrupt his growth as an individual”). It is for the trial court to expressly consider the best interests of the children before a change in visitation is ordered. Contempt, by itself, can never justify a change in visitation or custody without an independent determination of the best interests of the children. We have previously recognized that visitation arrangements are controlled by the best interests of the children. Chandler v. Bishop, 142 N.H. 404, 411 (1997); Richelson v. Richelson, 130 N.H. 137, 144 (1987). Although the trial court did not make an express finding that awarding additional visitation time to the respondent was in the best interests of the children, the majority concludes: We must assume that the trial court made subsidiary findings necessary to support its general ruling. In the absence of an explicit finding that the change in visitation was in the best *731 interests of the children, and in the absence of any evidence or allegation to the contrary, we will assume that the trial court found that the altered visitation schedule was not contrary to the best interests of the children. (Citation omitted.) I disagree that we should assume the trial court made the necessary subsidiary findings to sustain its visitation award because the language of the trial court’s order clearly demonstrates that no best interests analysis was deemed necessary. The trial court unequivocally stated, “Because of the contempt, [the respondent] is awarded additional visitation time with the girls.” (Emphasis added.) Nothing in this statement implies that the court considered the best interests of the children in awarding the respondent additional visitation time, and I am not prepared to tread where the trial court elected not to go. The majority states that in the absence of an explicit finding that modification of visitation was in the best interests of the children, “we will assume that the trial court found that the altered visitation schedule was not contrary to the best interests of the children.” The majority also states: The court’s overriding concern in structuring custody and visitation matters is the best interests of the child. In its order, the trial court did not make an explicit finding that altering the visitation schedule was in the best interest of the children. However, the petitioner offered no evidence and made no allegation that a change in the visitation schedule was not in the best interests of the children. (Citation omitted.) The relevant inquiry for purposes of modifying custody or visitation, however, is not whether a change would be contrary to a child’s best interests, but whether such a change would be in the child’s best interests. See Richelson, 130 N.H. at 145 (alteration of visitation schedule sustained where ruling was “unquestionably in the best interests of the child”); cf. RSA 458:17, V(a) (2004) (modification of custody due to repeated, intentional and unwarranted interference by a parent with the visitation rights of the other parent permissible if court determines that modification “would be in accordance with the best interests of the child”). Moreover, the petitioner does not have any burden where, as here, she was not the party seeking to modify the visitation schedule. To the contrary, the respondent, as the party seeking to alter the visitation schedule, bore the *732 burden of proof in that proceeding. Cf. Webb, 133 N.H. at 671 (party-seeking to modify custody has burden of proof); RSA 458:17, V(b) (2004) (same); see Preston v. Mercieri, 133 N.H. 36, 42 (1990) (referring to visitation as a custody matter). But see In the Matter of Nelson & Horsley, 149 N.H. 545, 548 (2003) (in deciding whether granting custodial rights to unrelated third party over express objection of sole parent violates parent’s State and federal constitutional rights, noting that visitation is a far lesser intrusion or assertion of control than custody, and therefore not nearly as invasive of parents’ rights). Accordingly, I disagree with the majority that the sanction ordered here should be sustained. The trial court failed to make an express finding that awarding the respondent additional visitation time with the children, as a result of the petitioner’s contempt, was in the children’s best interests. Consistent with our jurisprudence, I believe that justice demands such a finding. Accordingly, I respectfully dissent.