In the Matter of Tara Broom and Jeffrey Broom ( 2017 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2016-0284, In the Matter of Tara Broom and
Jeffrey Broom, the court on March 10, 2017, issued the
following order:
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). We affirm.
The respondent, Jeffrey Broom (father), appeals a final decree and
parenting plan issued by the Circuit Court (Carbon, J.) in his divorce from the
petitioner, Tara Broom (mother). He contends that the trial court erred by: (1)
awarding the mother primary residential responsibility for the parties’ child, who
was three at the time of the hearing; (2) effectively requiring him “to do all of the
transportation associated with the routine parenting schedule”; (3) awarding the
wife “sole decision-making authority on major medical decisions about the child”;
and (4) requiring him to maintain life insurance naming the wife as trustee
beneficiary for the child.
The trial court has wide discretion in matters involving the allocation of
parenting rights and responsibilities. In the Matter of Miller & Todd, 161 N.H.
630, 640 (2011). Our review is limited to determining whether the trial court
clearly engaged in an unsustainable exercise of discretion. Id. This means that
we review only whether the record establishes an objective basis sufficient to
sustain the trial court’s discretionary judgment, and we will not disturb its
determination if it could reasonably have been made. Id.We first address whether the trial court erred in awarding the mother
primary residential responsibility for the child. When determining matters of
child custody, a trial court’s overriding concern is the best interest of the child.
Id. RSA 461-A:6, I (Supp. 2016) codifies factors that the trial court must
consider when determining the child’s best interest and allows the court to
consider any other factor it deems relevant, RSA 461-A:6, I(l). However, nothing
in the statute, absent a party’s request, obligates the trial court to issue express
findings of fact relative to those factors. See RSA 461-A:6, VII (requiring trial
court, “[a]t the request of an aggrieved party,” to “set forth the reasons for its
decision in a written order”); cf. In the Matter of Kurowski & Kurowski, 161 N.H.
578, 598 (2011) (observing that the factors considered by the trial court in
resolving a parenting dispute were consistent with the factors set forth in RSA
461-A:6, I). Rather, we assume that the trial court made all subsidiary findings
necessary to support its general ruling, including a finding that a parenting plan
is in the child’s best interest. In the Matter of Kosek & Kosek, 151 N.H. 722, 725
(2005).
In this case, the trial court awarded the father five nights of parenting time
and the mother nine nights in each two week period. Prior to the parties’
separation, the mother was the child’s primary caretaker. The trial court found it
“surprising” that the father was spending significant amounts on alcohol in light
of his past heroin addiction. The father testified that he works late on Mondays
and Tuesdays; thus, the trial court could have reasonably decided not to give him
parenting time on those nights. Furthermore, the trial court could have
reasonably decided that giving the father parenting time on more school nights
was not in the child’s best interest because the child attended school in the
mother’s area and the drive between the parents’ homes was long.
The father argues that “the trial court failed to acknowledge the numerous
factors set forth in NH RSA 461-A:6 that favor a shared parenting arrangement.”
He contends that: (1) the child thrives with him; (2) the child has a strong bond
with the father’s son and parents; (3) the trial court rejected the mother’s
accusations against the son, but did not consider “the impact that these false
accusations . . . had on the parenting situation”; (4) there was no evidence that
the father was responsible for the parties’ poor communication; and (5) the
mother has relocated several times since the parties separated. However,
nothing in RSA 461-A:6 compelled the trial court to weigh these facts so as to
allocate parenting time differently. We conclude that the record establishes an
objective basis sufficient to sustain the trial court’s allocation of parenting time.
See Miller, 161 N.H. at 640.
We next address whether the trial court erred by, as the father claims,
effectively requiring that he do all the transportation required by the parenting
schedule. The trial court provided that “[t]he parent beginning her/his parenting
time is responsible for pick-up. If [the child] has school at the end of parenting
time, the parent concluding her/his time shall transport [the child] to school.”
Because the father’s parenting time concludes on school days, he argues that he
is responsible for both picking up the child at the start of his parenting time and
returning her to school at the end.
We note that as to the two days that the father is scheduled to pick up the
child, he does not work on one day and on the other he is scheduled to pick up
the child at 5:00 p.m. As to the two days that he is scheduled to return the child
to school, on one day he goes into work late in the morning, leaving only one
return that conflicts with his work schedule. The mother represents that her
work schedule also conflicts with this return.
Although the father “has another child that he needs to get to school,” the
trial court could have reasonably considered evidence that his parents have
actively assisted him with childcare and found that he was better able than the
mother to manage the impact of transporting the child. To the extent that the
father argues that the mother should be required to share in transporting the
child because she chose to relocate away from the marital home, nothing in the
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statute required the trial court to reach a different result based upon this factor.
Accordingly, we conclude that the record establishes an objective basis sufficient
to sustain the trial court’s order regarding transportation. See Miller, 161 N.H. at
640.
We next address whether there is sufficient support for the award of “sole
decision-making authority on major medical decisions about the child” to the
mother. RSA 461-A:5 (Supp. 2016) creates a presumption that joint decision-
making responsibility is in a child’s best interest. We note that the trial court
provided that the parents make all other types of major decisions jointly.
The trial court found that the father’s failure to obtain information about a
dog that bit the child, even though he spoke with the dog’s owner, was
“irresponsible.” As result, the child had to undergo rabies inoculations, and the
parents incurred a substantial medical bill. The father did not inform the mother
of the dog bite until she confronted him about it several hours after it occurred.
The trial court found the father’s “unwillingness to share this kind of information
with Mother in a timely manner likewise irresponsible.” Furthermore, the mother
testified that, when the child was six months old, the father declined to leave
work when she needed another adult to help her transport the child to an
emergency department on a doctor’s advice.
The father argues that: (1) he intended to inform the mother about the dog
bite “later when the children were out of earshot”; (2) “he was concerned that the
[mother] would overact”; (3) the child’s health was not compromised by his failure
to notify the mother immediately; and (4) “he did not consider the situation an
emergency that warranted immediate treatment.” These arguments, however, do
not address the trial court’s concern that the father failed to obtain information,
including whether the dog had been vaccinated for rabies, that was essential to
making informed medical decisions. Accordingly, we conclude that the record
establishes an objective basis sufficient to sustain the trial court’s allocation of
decision-making authority. See Miller, 161 N.H. at 640.
Finally, we address whether the trial court erred in requiring the father to
maintain life insurance for the child’s benefit. To the extent that the father is
arguing that the trial court lacked jurisdiction to order such relief, we conclude
that the relief is within the equitable authority of the circuit court’s family
division. See RSA 490-D:3 (2010); see also RSA 490-F:3 (Supp. 2016) (granting
circuit court jurisdiction conferred upon former judicial branch family division);
In the Matter of O’Neil & O’Neil, 159 N.H. 615, 622 (2010). To the extent he is
arguing that the trial court erred as a matter of law or unsustainably exercised
its discretion in ordering the relief because he has been ordered to pay child
support under the child support guidelines, we conclude that the issue is not
preserved.
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Issues must be raised at the earliest possible time to afford the trial court a
full opportunity to come to sound conclusions and to correct claimed errors in
the first instance. O’Hearne v. McClammer, 163 N.H. 430, 438 (2012). The trial
court must have had the opportunity to consider any issues asserted by the
appellant on appeal; thus, to satisfy this preservation requirement, any issues
which could not have been presented to the trial court prior to its decision must
be presented to it in a timely motion for reconsideration. Fam. Div. R. 1.26(F);
see N.H. Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). An issue not
raised until after the filing of a motion for reconsideration is not preserved for our
review. See O’Hearne, 163 N.H. at 439 (holding argument raised for first time in
reply to objection to motion for reconsideration not preserved).
In this case, the father raised the argument that the trial court could not
require life insurance for the first time in a second motion for reconsideration,
filed only after the trial court had denied his earlier post-decision motion for
clarification or reconsideration. In the first motion, the father requested only that
the court require him to have life insurance if “he actually qualifies for such
coverage at a reasonable cost.” Under these circumstances, we conclude that the
father failed to preserve any argument that the trial court violated the child
support guidelines or unsustainably exercised its discretion by requiring that he
obtain life insurance. See id.Finally, to the extent that the father argues that the trial court erred by
requiring him to buy life insurance regardless of the cost, we note that the father
did not present the trial court with evidence of the actual cost of insurance on his
life. The trial court, in its order on the father’s first motion for reconsideration,
provided that, if he produced a letter from his employer refusing to provide him
with life insurance, he might request reconsideration at that time. However, the
record before us does not reflect that the father provided a rejection letter from
his employer or requested reconsideration on that basis. Accordingly, we
conclude that the record establishes an objective basis sufficient to sustain the
trial court’s requirement that the father have life insurance for the child’s benefit.
See Miller, 161 N.H. at 640.
Affirmed.
Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.
Eileen Fox,
Clerk
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