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In re Summers

Supreme Court of New Hampshire

August 6, 2019


          Argued: June 18, 2019

          9th Circuit Court-Merrimack Family Division

          Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard on the brief and orally), for the petitioner.

          Solomon Professional Association, of Londonderry (Elaine M. Kennedy on the brief and orally), for the respondent.

          HICKS, J.

         The respondent, Christine Summers (Mother), appeals and the petitioner, Steven Summers (Father), cross-appeals an order of the Circuit Court (Ryan, J.) dated March 2, 2018, which modified the parties' prior parenting plans. On appeal, Mother contends that the trial court unreasonably failed to grant her equal parenting time after finding that she was sober, had complied with the court's prior orders, and had a strong bond with the parties' children. In his cross-appeal, Father argues that the trial court lacked statutory authority to modify the parties' prior parenting plans because Mother neither pleaded nor proved a statutory ground for modification. We affirm.

         The following facts either were found by the trial court or relate the contents of documents submitted as part of the appellate record. The parties are parents of twins born in October 2009. According to Mother, Father filed for divorce in January 2014. The trial court entered a temporary parenting plan in August 2014, which awarded the parties joint decision-making responsibility for their children and granted them roughly equal parenting time.

         The final hearing on the parties' divorce was held in September 2015. According to Father, in March 2016, he filed an emergency motion to suspend Mother's time with the children because of Mother's active alcoholism, averring that Mother had been removed from her parents' home by the police while the children were there. According to Father, police observed that Mother had slurred speech, was unsteady on her feet, and was difficult to converse with. Father asserts that, in April 2016, the trial court ordered Mother to submit "to an EtG Hair Alcohol Test" within ten days and that her parenting time would be supervised by her parents, and ordered her parents to notify the children's guardian ad litem (GAL) of any alcohol use by Mother. See RSA 461-A:9 (2018) (concerning ex parte orders). In that order, according to Father, the trial court observed that, although Mother denied having a drinking problem, the police "found a nearly full bottle of Vodka, an empty bottle of wine, six empty beer cans, an empty bottle of Vodka, an empty box of wine, a full box of wine and an empty bag of wine" in her bedroom.

         On June 24, 2016, Father filed a second emergency motion to suspend Mother's parenting time based upon her active alcoholism. In that motion, he alleged that Mother had been arrested twice in one week for driving while intoxicated (DWI). He averred that those were not her first arrests for DWI. The GAL assented to the motion and alleged that Mother had been arrested for DWI in Candia on June 20 and in Bedford on June 23. The trial court entered an ex parte order granting Father temporary sole decision-making and residential responsibility for the children. See id.

         The trial court held a hearing on August 2, and, according to Father, verbally modified its ex parte order to allow Mother to have supervised parenting time with the children on Sunday and Tuesday. See id. On October 31, 2016, the trial court entered its final decree in the parties' divorce and a final parenting plan.

         The October 2016 parenting plan grants the parties joint decision-making responsibility, see RSA 461-A:5 (2018), and grants Father primary residential responsibility for the children, see RSA 461-A:6, I-III (2018) (amended 2018). Under the plan, Mother has parenting time with the children "[e]very other weekend from Friday after school until Sunday at 7:00 pm" and "[e]very Wednesday from after school until Thursday morning at the beginning of school." The plan provides that, as Mother "resides with her parents," her "parenting time shall be supervised by her parents until this Parenting Plan is modified by agreement of the parties or an Order from [the] court." The parenting plan precludes both parents from abusing alcohol or using illegal drugs.

         In the narrative order accompanying the October 2016 plan, the trial court discussed Mother's request to make the parenting plan temporary:

It should be noted that all the hearings held after the Final Hearing [in September 2015] were due [to Mother's] alcohol addiction. Throughout this process, [Mother] has not been honest with the Court about her alcohol issues. She has attempted to either minimize her alcoholism or hide it entirely from the Court. She has been arrested at least 3 times for DWI during the pendency of this action, the police have reported bottles of alcohol in her bedroom at her parents' home. While she would like the Court to make any Parenting Plan temporary so that she can finally deal with her problems, the Court is not inclined to do so.

         The court stated that the parenting plan attached to its narrative order "is Final," but that "it is subject to review in 6 months to determine if the parenting schedule should be modified to again allow shared or equal parenting time." The narrative order further stated that "[a]ny change or modification in the Parenting Plan shall be subject to [Mother] addressing her alcoholism in a meaningful way which would include[, ] at a minimum[, ] participation in an Intensive Outpatient Program [and] her continued sobriety," and that any modification would have to be "in the best interests of the children." In its narrative order, the trial court specifically found that because of Mother's active alcohol addiction and her actions in hiding it from the court, "shared/equal parenting time is not in the children's best interests."

         Neither party appealed to this court the trial court's October 2016 parenting plan or the narrative order accompanying it. Thus, for the purposes of this appeal, we assume without deciding that, contrary to Father's contentions, the review provision set forth in the trial court's October 2016 narrative order was lawful.

         Just days later, on November 2, Father filed a partially-assented-to third emergency motion to suspend Mother's parenting time. See RSA 461-A:9. In that motion, he averred that Mother "has repeatedly tested positive for alcohol consumption," that she last saw the children on October 14 and tested positive for alcohol consumption on that date, and that she "has not entered intensive out-patient alcohol treatment" or had "any counseling at all." Father requested that the court grant him sole decision-making ...

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