In The Matter of Ilya Shubentsov and Maureen Shubentsov ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0485, In the Matter of Ilya Shubentsov
and Maureen Shubentsov, the court on March 30, 2018, issued
the following order:
The petitioner having filed redacted appendices on March 14, 2018, his
motion to seal case records is granted as to the appendices and denied as to
the briefs. The appendices to the petitioner’s briefs shall remain confidential.
The briefs and the redacted appendices have been placed in the court’s public
file.
Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
Accordingly, the petitioner’s motion to waive oral argument is moot.
The petitioner, Ilya Shubentsov (father), appeals the order of the Circuit
Court (Foley, J.) denying his motion for contempt against the respondent,
Maureen Shubentsov (mother), for allegedly violating an order governing his
reunification with the parties’ son. He argues that the trial court erred in:
(1) not admitting certain exhibits at the contempt hearing; (2) failing to find the
mother in contempt for not allowing him access to the child’s records; and
(3) failing to rule on each of his requested findings of fact. The father also
argues that the court’s order constituted an unsustainable exercise of
discretion. We affirm.
The contempt power is discretionary and the proper inquiry is whether
the trial court unsustainably exercised its discretion. In the Matter of Conner
& Conner, 156 N.H. 250, 253 (2007). The record shows that in October 2012,
while the parties’ divorce was pending, the father voluntarily suspended his
parenting time with their then three-year-old son. By the time of the final
hearing, the father had not visited the child in over a year. In its final decree,
the Circuit Court (Lemire, J.) awarded the mother sole residential and decision-
making responsibility for the child. The court found that a healthy and safe
relationship between the father and son would be in the child’s best interest;
however, the court noted that the child was “so young when [the father]
discontinued contact that they now have virtually no relationship.” The court
concluded that “there must now necessarily be an appropriate and therapeutic
reunification process” before a parenting schedule could be implemented.
More than one year later, without an agreement between the parties on a
reunification process, the case was assigned to the complex case docket.
Following a series of conferences with the court, the parties agreed upon a
reunification process, which the court incorporated into an order.
Pursuant to the agreement, the mother was allowed to relocate with the
child to Arkansas, where she had obtained employment in her specialized field.
The mother agreed to “work towards supporting a father/son relationship”
between the child and his father. The father agreed to “engage in specialized
family reunification therapy, as long as necessary in order to transition to
‘another individual,’ trained in close supervision of visitation, and trusted by
[the child] and his parents.” The court appointed a master family therapist
who, “in consultation with the individual therapists and family reunification
therapist, shall decide when the transition shall occur to ‘less close’ supervised
visits.” The parties agreed that the child’s “progress and adjustment shall
determine the pace and methodology of this entire reunification process, which,
at this stage, does not yet include [the father’s] ultimate goal of unsupervised
visits.”
In a March 16, 2017 letter to the court, the master family therapist
proposed a detailed reunification schedule, starting with Skype sessions
between the child and his New Hampshire-based therapist, which the father
would join after two weeks. The therapist further proposed that, following the
Skype sessions, the father and son engage in extended visits in New
Hampshire, leading to overnight visits. In her letter, the therapist advised the
court that the mother had demonstrated an unwillingness to participate in this
process, based upon her position that the therapist’s proposal exceeded the
scope of the parties’ agreement.
In its April 24, 2017 order, the trial court agreed with the mother, ruling
that the master family therapist was effectively seeking a modification of the
parties’ agreement. The court stated that the parties “need[ed] to decide for
themselves what next steps are in the best interest of their child.”
The following month, the father filed his motion for contempt, alleging
that the mother was not cooperating with the reunification process, and
requesting that the court adopt the reunification plan recommended by the
master family therapist. Following a hearing, the court denied the motion. The
court reiterated its finding that the master family therapist had exceeded her
authority, stating that the court had asked her “to direct the process devised by
the parties,” and that it did not delegate to her the authority to devise a
reunification plan. The court found that the mother was in substantial
compliance with its order, noting that she had expended over $6,000 in her
efforts to comply with it. The court also noted that, although the mother had
found a therapist for the child in Arkansas, she kept the child’s New
Hampshire-based therapist involved and arranged seven “telephonic/Skype
sessions” between them. The court noted that the mother paid the master
family therapist’s retainer, even though she objected to the therapist’s
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proposed reunification schedule. The court discharged the master family
therapist and asked the parties to provide up to three names for a replacement,
which the court would appoint.
The father first argues that the court erred by not admitting the master
family therapist’s March 16, 2017 letter as an exhibit at the contempt hearing,
or allowing her to testify at the hearing, and by discharging the master family
therapist. He also argues that the court erred in not admitting other exhibits,
including excerpts from therapists’ depositions. We review these decisions
under our unsustainable exercise of discretion standard. See In the Matter of
Hampers & Hampers, 154 N.H. 275, 280 (2006); In the Matter of Conner, 156
N.H. at 252. To the extent that the father argues that these rulings violated the
State Constitution, he has not sufficiently developed his constitutional
arguments for review. Accordingly, we consider them waived. See State v.
Chick, 141 N.H. 503, 505 (1996).
In the reunification agreement, the parties agreed that the therapists
“shall all be strictly insulated from any litigation,” that they “shall not be called
as witnesses,” and that “[t]heir records shall not be subpoenaed.” Moreover,
the trial reviewed the master family therapist’s March 16, 2017 letter, including
the part that “identified [the mother] as unwilling to participate in the
reunification plan” that the therapist had proposed. The court addressed this
issue in its order, finding that “there was a major disconnect” between the
therapist and the mother, which explained the mother’s hesitancy. Based
upon this record, we cannot conclude that the trial court unsustainably
exercised its discretion by not admitting the father’s exhibits or allowing the
therapist to testify. See In the Matter of Hampers, 154 N.H. at 280; In the
Matter of Conner, 156 N.H. at 252.
The father next argues that the mother was in contempt of the provision
in the agreement providing him with “the right to receive information regarding
[the child’s] schooling, health, social and personal activities directly from the
providers.” Although he asserts that the mother failed to provide him with
releases, he has failed to show that her conduct interfered with his right to
obtain the information. See Coyle v. Battles, 147 N.H. 98, 100 (2001)
(appellant must provide sufficient record to demonstrate error).
Finally, the father argues that the court erred in failing to rule on each of
his requested findings of fact. The purpose of requiring written findings of fact
is to provide a sufficient basis for appellate review. Geiss v. Bourassa, 140
N.H. 629, 632-33 (1996). This purpose is fulfilled when the trial court files, in
narrative form, findings of fact which sufficiently support its decision. Id. We
conclude that the trial court’s July 12, 2017 narrative order provides a
sufficient basis for appellate review; thus, we find no error. See id.3
In its order, the court allowed the parties the opportunity to continue to
seek agreement on a reunification process, noting that “[t]he therapeutic
process described in [the August 25, 2016 order] remains in full force and
effect, with the exception of the appointment of a new Master Family
Therapist.” The court advised the parties that “this file will be closed,” but that
if the parties cannot reach an agreement, “any new filing will finally end the
therapeutic process in favor of a fully litigated process.” Based upon this
record, we cannot conclude that the trial court’s decision to deny the father’s
motion for contempt constituted an unsustainable exercise of discretion. See
In the Matter of Conner, 156 N.H. at 253.
Affirmed.
Hicks, Bassett, and Hantz Marconi, JJ., concurred.
Eileen Fox,
Clerk
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