Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Kelly

Supreme Court of New Hampshire

May 26, 2017

IN THE MATTER OF NICHOLAS KELLY AND ASTRID FERNANDES-PRABHU

          Argued: March 1, 2017

          Hamblett & Kerrigan, P.A., of Nashua (Andrew J. Piela on the brief and orally), for the petitioner.

          Law Office of Peggy L. Small, of Nashua (Daniel R. Krislov on the brief and orally), for the respondent.

          LYNN, J.

         The respondent, Astrid Fernandes-Prabhu (mother), appeals an order of the Circuit Court (DalPra, M., approved by Introcaso, J.) granting a motion by the petitioner, Nicholas Kelly (father), to modify the parties' parenting plan. On appeal, the respondent argues that the trial court erred by modifying the parties' parenting plan without statutory authority to do so. We reverse in part, vacate in part, and remand.

         I

         The pertinent facts are as follows. The parties are the parents of a three-year-old son. In January 2015, the trial court issued a final parenting plan that awarded the respondent sole decision-making responsibility and primary residential responsibility for the parties' son. Under the parenting plan, the petitioner received parenting time each weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. and one evening parenting time every week from 4:00 p.m. to 7:00 p.m. Shortly thereafter, the petitioner successfully petitioned the trial court to extend his weeknight parenting time to run from 4:00 p.m. to 8:00 a.m. the following morning. That modification is not an issue in this appeal.

         In September 2015, the petitioner moved for another modification of the final parenting plan, this time seeking, in relevant part: (1) at least 50% parenting time; and (2) at least joint decision-making responsibility. The respondent objected and cross-moved for a different modification of the final parenting plan, seeking to increase her parenting time by adding overnight parenting time on alternating weekends.

         Following a hearing, the trial court issued an order (September order) that included the following findings:

The court finds that the terms of the current Plan do not work in the child's best interests because the parties refuse to allow them to do so. Consequently, a modification of the Plan may be in order. Unfortunately, at this time, the court is not in a position to make that modification. It has insufficient reliable evidence to do so. The assistance of a guardian ad litem is necessary in order to assist the court in determining a parenting schedule that is in the child's best interests.

         After a further hearing, the trial court issued an order in March 2016 (March order) modifying the parenting plan by awarding the petitioner joint decision-making responsibility and expanding his routine parenting time to "a nearly equal schedule of parenting time." In its order, the trial court stated that its authority to modify the parenting plan arose because "the parties have agreed that the current Parenting Plan is not working, but are unable to come up with one on their own."

         The respondent timely moved for reconsideration, arguing that, under RSA 461-A:11 (Supp. 2016), the trial court did not have the authority to modify the parenting plan. The trial court denied the motion without issuing a narrative order. This appeal followed.

         II

         The respondent initially argues that the trial court did not have statutory authority to modify the parenting schedule within the parenting plan. The petitioner, however, contends that the respondent waived her right to challenge the standard for modification employed by the trial court because her motion to reconsider was not filed until after the March order was issued. The petitioner argues that if the respondent believed the trial court's September order did not employ the correct statutory standard for modifying a parenting plan, "she should have immediately objected and/or filed a motion to reconsider." ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.