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In re Zavala

Supreme Court of New Hampshire

August 21, 2012

In the Matter of Joan Zavala and John Ryan,

ORDER

The respondent, John Ryan (Father), appeals an order of the trial court awarding to the petitioner, Joan Zavala (Mother), primary parenting responsibility for their child. He argues that: (1) the trial court failed to consider the Mother's unfounded allegations of abuse; (2) the trial court failed to consider the best interests of the child; and (3) the supreme court rule that provides "for mandatory review of appeals involving married parents, but . . . for certiorari review of appeals involving non-married parents [is] unlawful and unconstitutional." We affirm.

The following facts are undisputed. The parties were never married. They are the parents of a son born in November 1996. The Mother lives in Londonderry, New Hampshire; the Father lives in Salem, New Hampshire. In March 2010, the Mother filed a parenting petition in the trial court. Although we have not been provided with the parenting petition, both the copy of the trial court's docket card provided by the Father in the appendix to his brief and the trial court's lengthy narrative order indicate that the parties filed multiple pleadings following the filing of the petition.

RSA chapter 461-A (Supp. 2011) addresses parental rights and responsibilities and gives the trial court broad authority to allocate rights between parents. In the Matter of Huff & Huff, 158 N.H. 414, 417 (2009). RSA 461-A:6 provides that "in determining parental rights and responsibilities, the court shall be guided by the best interests of the child." The statute then sets forth a list of factors to be considered by the court in making its determination. Our review is limited to determining whether it clearly appears that the trial court engaged in an unsustainable exercise of discretion. In the Matter of Miller & Todd, 161 N.H. 630, 640 (2011). We review only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made; we will affirm the trial court's determination if it could reasonably be made. Id.

In the order before us, the trial court determined that it was in the child's best interests to place primary residential responsibility for the child with the Mother. The Father first argues that this conclusion failed to take into account the Mother's "unfounded allegations of abuse against him." A review of the trial court's order belies this assertion. Indeed, in the chart created by the court to address each of the factors set forth in RSA 461-A:6, the trial court specifically found that the Mother "alleged abuse by [the Father] in respect to her and [the child]. Not one of these allegations has been proven. A DVPO brought by [the [Mother] against [the Father] was dismissed after the final hearing." As the trial court correctly observed, however, the Mother's conduct was but one factor to be considered when determining the best interests of the child. The court specifically found that "the evidence in respect to each factor plays out equally well for each parent in some respects and equally deficient for each of the parents in other respects." The court further found: "The evidence at the hearing demonstrates while each parent states they are primarily concerned about the best interest of [the child], their behaviors reveal they are more interested in proving the other wrong and trying to prove to the court their worse beliefs about the other."

The Father also argues that "parenting plans should focus exclusively on the best interests of the child and not be disproportionate." He challenges both the lack of specificity and the unequal parenting time provided in the trial court's order. We construe his argument to be that it violates the provisions of RSA chapter 461-A. We disagree with his conclusion.

In finding that a shared parenting schedule was not in the child's best interests, the court found that the child had advised the guardian ad litem that he would prefer to live with the Mother and spend time with the Father with no set schedule. The court specifically noted that it had no evidence to suggest that the child "is not a mature minor in expressing his preference." See RSA 461-A:6, II. The court also found that he "is a very good student, a good athlete and his coping skills are exceptional based on the amount of anxiety and pressure he feels in trying to navigate between the relationships of his parents."

The court concluded that both parents agreed that the child "should be free to craft his own schedule with each parent" and directed the guardian ad litem to meet with the child to develop a schedule that set forth a minimum amount of time that the child would spend with the Father each week. Given the child's age, his success in navigating both his teenage years and the demands placed upon him by both his parents, as well as his desire to have a principal place of residence during his remaining years of minority, we find that the trial court's exercise of discretion was sustainable. See In the Matter of Miller & Todd, 161 N.H. at 640.

The Father also argues that Supreme Court Rule 3 discriminates against unmarried persons. He argues that because an appeal from a final divorce decree is a mandatory appeal but an appeal from a parenting plan order is discretionary, the rule treats the relationship between children and unmarried parents differently from the relationship between children and married parents. Our acceptance of this appeal renders moot the petitioner's challenge to the constitutionality of Supreme Court Rule 3 as applied to this case. See id. at 644- 45. Any consideration of whether Rule 3 should be amended should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, a process that provides opportunity for comments and suggestions from the public, bench and members of the bar.

Affirmed.

HICKS, CONBOY, and LYNN, JJ., ...


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