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