Articles Posted in Family Law

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Respondent Harry Dow, IV appealed a circuit court order requiring him to pay alimony to petitioner Leslie Dow in the amount of $750 per month for three years. When it calculated the amount of alimony, the trial court declined to impute income to petitioner, concluding that it had no authority to do so under RSA 458:19 (Supp. 2016). On appeal, respondent argued, among other things, that the trial court erred because RSA 458:19 authorized the imputation of income for the purpose of determining the amount of alimony. The New Hampshire Supreme Court agreed with respondent and, therefore, vacated and remanded. View "In the Matter of Leslie Dow & Harry Dow, IV" on Justia Law

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Petitioner Keli Eckroate-Breagy appealed a circuit court order denying her motion to reopen the property distribution decreed in her divorce from respondent Paul Breagy. She filed the motion after the respondent received two inheritances. She also appealed the trial court’s refusal to compel answers to her discovery requests about the inheritances. The New Hampshire Supreme Court found: (1) property acquired by either party after the date that the divorce decree is issued is not marital property; and (2) in light of holding that the inheritances were not marital property, the trial court’s refusal to compel discovery regarding the inheritances was not an unsustainable exercise of discretion. View "In the Matter of Keli Eckroate-Breagy & Paul Breagy" on Justia Law

Posted in: Family Law

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RSA 461-A:11, I(a) permits a court to modify a parenting plan only when the parties agree to specific modification terms. Because the parties here disagreed about specific modification terms, they did not “agree to a modification,” and the trial court did not have authority to modify the parenting plan pursuant to RSA 461-A:11, I(a). Accordingly, because RSA 461-A:11, I(a) did not empower the trial court to modify the parenting plan, and because the record contained insufficient findings to permit the New Hampshire Supreme Court to determine whether the trial court properly modified the plan pursuant to RSA 461-A:11, I(c), the trial court’s order was reversed to the extent that modification of the parenting schedule was ordered pursuant to RSA 461-A:11, I(a). The Supreme Court also vacated the order to the extent that modification of the parenting schedule was ordered pursuant to a different subparagraph of RSA 461-A:11, I, and remanded for further proceedings. View "In the Matter of Kelly & Fernandes-Prabhu" on Justia Law

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A maternal great-grandmother and a maternal step great grandfather appealed after a circuit court dismissed their petition for visitation with their minor great-grandchild. The circuit court found, and the New Hampshire Supreme Court agreed, that the great-grandparents lacked standing to bring suit. View "Petition of Willeke" on Justia Law

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Petitioner Jeffrey Oligny appealed an order recommended by a Hearing Officer and approved by the Circuit Court, enforcing the college contribution provision contained in the parties’ 2003 divorce decree, based upon a finding that petitioner’s offer to co-sign loans with his children did not meet his obligation under the decree to equally contribute to their college expenses. Finding no reversible error in that judgment, the Supreme Court affirmed. View "In the Matter of Jeffrey Oligny & Paula Oligny" on Justia Law

Posted in: Family Law

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Respondent, mother of a minor child, appealed a circuit court order terminating her parental rights over the child. On appeal, she argued that the trial court erred by: (1) granting the petition brought by the petitioner, the New Hampshire Division of Children, Youth and Families (DCYF), to terminate her parental rights while the direct appeal of her underlying criminal conviction was pending; and (2) finding that termination of her parental rights was in the best interest of the child. The New Hampshire Supreme Court reversed and remanded, finding that the consequences of interpreting the termination statute to permit termination of the parent-child relationship while an appeal of the underlying judgment of conviction was pending was “troubling.” The lack of finality of a conviction that was being appealed raised the question whether DCYF satisfied the heightened requirement of proving the grounds for termination beyond a reasonable doubt. “Taking into consideration the interests of both parents and children that are at stake in termination proceedings, and the heightened standards we apply to such proceedings, we concluded that the legislature intended the terms ‘convicted’ and ‘conviction’ as used in RSA 169-C:24-a, I, and RSA 170-C:5, VI and VII, to mean an affirmance of guilt following a direct appeal as of right to [the Supreme Court] that raises an issue of innocence or guilt.” Accordingly, the Court held that the trial court erred as a matter of law when it terminated the mother’s parental rights while her direct appeal of the conviction that formed the statutory ground for the termination was pending. View "In re S.T." on Justia Law

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Respondent Kenneth Geraghty appealed a final Circuit Court order in his divorce from petitioner Paula Geraghty. He argued that the trial court erred in: (1) applying New Hampshire law to his petition for annulment of the marriage; (2) denying his petition; (3) finding certain testimony proffered by the petitioner credible without explanation; (4) equally dividing the marital estate; and (5) ordering him to transfer to the petitioner one-half of a certain retirement account without affording him the opportunity to address possible adverse tax consequences of that transfer. Finding no abuse of discretion or other reversible error, the New Hampshire Supreme Court affirmed the judgment. View "In the Matter of Paula & Kenneth Geraghty" on Justia Law

Posted in: Family Law

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Respondent Christopher Ross appealed a circuit court order dismissing his petition for a fault-based divorce and the final divorce order from petitioner Danielle Ross. He argued that the trial court erred: (1) in granting petitioner’s motion to dismiss based upon the defense of recrimination; (2) in failing to award him more than half of the marital estate; and (3) in failing to retroactively modify temporary support orders based upon petitioner’s allegedly understated income. Because the Supreme Court held that a party’s actions after the divorce petition has been filed could be used as a basis for the defense of recrimination, and that respondent withdrew his request to modify the temporary support orders, the Court affirmed. View "In the Matter of Ross" on Justia Law

Posted in: Family Law

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Respondent Coralee Beal appealed a circuit court order awarding petitioner Deborah Munson what Beal contended to be eighty-eight percent of the value of the marital estate. The court awarded Beal the remaining twelve percent and alimony. Beal argued that the circuit court erred by failing to consider the parties’ approximately fifteen-year period of premarital cohabitation when it determined the provisions of the decree. After review, the Supreme Court held that the trial court could consider premarital cohabitation when formulating an equitable distribution of marital property. Accordingly, the Court vacated both the property distribution and alimony award and remanded for further proceedings. View "In the Matter of Munson and Beal" on Justia Law

Posted in: Family Law

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Appellant Tammy Cole was the biological grandmother of N.B. and J.B. In May 2012, DCYF filed a petition alleging that N.B. and J.B. had been neglected by their biological parents. The court appointed CASA to serve as the children’s guardian ad litem. After the court made a finding of neglect and awarded DCYF legal custody, DCYF removed N.B. and J.B. from their parents’ home and placed them in Cole’s physical custody. In November 2013, the biological parents sexually abused N.B. and J.B. during an unsupervised visit. The court subsequently terminated the biological parents’ parental rights, and the abuse and neglect case was closed. In May 2014, Cole and her husband adopted the children. In July, Cole filed a motion in the circuit court seeking to copy the court’s records relating to the children’s abuse and neglect case. Cole also notified DCYF and CASA that N.B. and J.B. had potential negligence claims against these agencies based upon the abuse that occurred while the children were in the legal custody of DCYF. DCYF and CASA objected to Cole’s motion and each requested a protective order. DCYF and CASA argued that Cole was not entitled to make a copy of the court record, and CASA requested that the court grant a protective order limiting Cole’s inspection of the records to review at the courthouse and limiting disclosure of the court file. After a hearing, the court granted Cole’s motion to copy records and also granted CASA’s request for a protective order, in part. Cole only appealed the part of the circuit court's order required that any future case be filed as confidential and the pleadings filed under seal. She argued that this constituted a prior restraint on free speech that violated her rights under the New Hampshire and United States Constitutions because it was neither narrowly tailored nor did it serve a compelling State interest. Further, she asserted that it impermissibly placed the burden upon her, instead of on the parties seeking nondisclosure, and that it unfairly restricted her disclosure while allowing others to disclose the same information. Because the New Hampshire Supreme Court found that the court’s ruling constituted an unconstitutional prior restraint on speech, it reversed this part of the order. View "In re N.B." on Justia Law