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 Neal

Supreme Court of New Hampshire

March 30, 2018

IN THE MATTER OF GREGORY NEAL AND LAUREN DIGIULIO

          Submitted: November 9, 2017

          Law Office of L. Bradley Helfer, PLLC, of Wolfeboro (L. Bradley Helfer on the brief), for the petitioner.

          Greene and Greene, PLLC, of Dover (David J. Greene on the brief), for the respondent.

          LYNN, J.

         The respondent, Lauren DiGiulio, appeals an order of the 3rd Circuit Court-Ossipee Family Division (Pendleton, J.) granting the motion of the petitioner, Gregory Neal, to rescind a voluntary acknowledgment of paternity. The respondent also appeals the trial court's denial of a hearing on her request for attorney's fees. We affirm.

         The trial court found, or the record reveals, the following facts. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the child's birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that the petitioner is the child's "natural father." At the time of the child's birth, the respondent did not raise the possibility that someone else might be the child's father. The parties lived together for approximately three years after the child's birth, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child.

         In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner is the second child's biological father, but that he is not the biological father of the first child. The results also established the identity of the first child's biological father, who was then incarcerated. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child's biological father was released from prison. At that point, the respondent severed the petitioner's contact with the child in favor of the child's biological father. Thereafter, the petitioner made a number of requests to see the child, all of which were denied. However, at no time did the petitioner file a parenting petition with respect to the child.

         On August 24, 2015, the petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties' children. In November, in that same proceeding, the petitioner filed a "Motion to Rescind Paternity" of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court "[a]cknowledge that [he] is not the biological father of" the child and "order and declare that [he] is not the legal father of" the child. (Bolding, underlining, and capitalization omitted.)

         Following a hearing, the trial court granted the motion, rescinding the petitioner's acknowledgment of paternity of the first child. The court found that the petitioner mistakenly believed that he was the father of the first child at the time of the child's birth, and because the respondent never told the petitioner that there was a chance that he was not the child's father despite possessing "knowledge that clearly could have been relevant, or allowed the parties to address paternity at the time of birth, " it would be "unfair . . . to hold [the petitioner] responsible for his good faith act of signing the affidavit of paternity, given the now clearly material misunderstanding of fact under which he acted." Noting that it was the respondent who "terminated the relationship between the parties, " the court further found that it would be "equally unfair" to hold the petitioner's "subsequent efforts to continue to parent [the child] against him as grounds justifying denial of his request to rescind the affidavit of paternity."

         Finally, the court rejected the respondent's argument that the petitioner was estopped from seeking rescission of the acknowledgment of paternity because he did not immediately do so after learning that he was not the child's biological father. Instead, the court found "it reasonable to grant [the petitioner's] request, " recognizing that he "tried to make a good faith effort to take care of a child who needed help" and that it was the respondent "who rebuffed these efforts over the past two years resulting in the current situation where [the petitioner] has no ongoing relationship with" the child. The respondent sought reconsideration, which the court denied.

         The respondent also requested attorney's fees for filing a motion relative to a misstatement made by the petitioner's attorney in an objection. The court denied the respondent's request, finding an award of attorney's fees was unwarranted. This appeal followed.

         On appeal, the respondent argues that the trial court erred by granting the petitioner's motion to rescind paternity of the child. Specifically, the respondent contends that: (1) the court lacked subject matter and personal jurisdiction; (2) the court applied an erroneous legal standard; and (3) the court should have dismissed the petitioner's motion in light of his delay in seeking rescission. The respondent further maintains that the trial court erred by not granting her a hearing on her request for attorney's fees relative to the misstatement made by the petitioner's counsel in an objection. We address each argument in turn.

         I. Jurisdiction

         The respondent first contends that the trial court lacked subject matter and personal jurisdiction over the petitioner's motion because the child was not named in his initial parenting petition, and because the parenting petition did not sufficiently establish the court's jurisdiction over the child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, RSA chapter 458-A (Supp. 2017). ...


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.