In the Matter of Dana Albrecht and Katherine Albrecht ( 2023 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit Court-Nashua Family Division
No. 2022-0517
IN THE MATTER OF DANA ALBRECHT AND KATHERINE ALBRECHT
Submitted: June 29, 2023
Opinion Issued: July 25, 2023
Dana Albrecht, self-represented party, by brief.
Welts, White & Fontaine, P.C., of Nashua (Michael J. Fontaine and Israel
F. Piedra on the brief), for the respondent.
DONOVAN, J. The petitioner, Dana Albrecht, appeals an order of the
Circuit Court (Rauseo, J.) denying his post-final-divorce-decree motion alleging
that the respondent, Katherine Albrecht, was in contempt of the parties’
parenting plan. We affirm.
We briefly summarize the procedural history of the case. The parties
divorced by final decree (DalPra, M., approved by Introcaso, J.) in 2018. We
upheld the final decree following the petitioner’s appeal challenging certain
aspects of the property division. See In the Matter of Albrecht & Albrecht, No.
2018-0379 (N.H. March 14, 2019). The trial court had earlier bifurcated the
proceeding and, in September 2017, had entered a final parenting plan
(DalPra, M., approved by Quigley, J.). Neither party timely appealed the
parenting plan. See Germain v. Germain, 137 N.H. 82, 84 (1993) (holding that,
when a trial court bifurcates a divorce and decides some, but not all, issues,
that decision is a final “decision on the merits” under Supreme Court Rules 3
and 7).
On November 1, 2019, the petitioner filed an ex parte motion alleging
that the respondent was in contempt of the parenting plan’s joint decision-
making provision and a provision requiring each parent to promote a healthy
and beneficial relationship between the other parent and the parties’ then-
minor children (November 2019 contempt motion). The petitioner claimed that
the respondent had violated the parenting plan by, among other things,
removing the children from school a few days early for a week-long vacation
without first notifying him. On November 1, 2019, the Trial Court (DalPra, M.,
approved by Leary, J.) denied the request for ex parte relief, and stated that it
would schedule the “case . . . in the ordinary course.”
For reasons that are not clear from the record, the trial court did not
schedule the November 2019 contempt motion for a hearing or otherwise rule
on it until 2022. In the meantime, numerous other post-divorce disputes and
collateral proceedings arose between the parties. On June 27, 2022, the
petitioner moved to have the November 2019 contempt motion considered at a
hearing that had already been scheduled to occur three days later on several
other motions. Although the Trial Court (Rauseo, J.) gave the petitioner some
leeway to discuss the November 2019 contempt motion at the June 30, 2022
motions hearing to the extent that he claimed it pertained to another pending
matter, it did not grant his request to have the November 2019 contempt
motion heard at the scheduled hearing, or otherwise schedule the motion for a
hearing. Instead, the trial court denied the November 2019 contempt motion
without a hearing on July 22, 2022.
In denying the November 2019 contempt motion, the trial court first
noted that the petitioner had not requested a hearing in the motion itself. The
trial court then observed that most of the relief requested by the November
2019 contempt motion had become moot by the passage of time or subsequent
developments. With respect to the petitioner’s claims that the respondent was
in contempt of the parenting plan, the trial court found that, based upon the
allegations in both the November 2019 contempt motion and the respondent’s
objection, the respondent had not willfully violated the parenting plan by
taking the children on a week-long vacation without consulting the petitioner.
The trial court observed that the respondent and children, at that time, were
coping with the recent death of a close family member, and that the respondent
had made appropriate arrangements with the children’s school for the
vacation. Such conduct, according to the trial court, violated neither the joint
decision-making provision nor the provision requiring the parties to promote
healthy relationships between the children and the other parent. It is from the
July 22, 2022 order denying the November 2019 contempt motion, and an
2
order denying the petitioner’s motion to reconsider that order, that the
petitioner filed the present appeal.
The trial court’s contempt power is discretionary; the proper inquiry is
not whether we would have found the respondent in contempt, but whether the
trial court unsustainably exercised its discretion by not doing so. In the Matter
of Ndyaija & Ndyaija, 173 N.H. 127, 138 (2020). To establish that the trial
court exercised its discretion unsustainably, the petitioner must demonstrate
that the court’s ruling was clearly untenable or unreasonable to the prejudice
of his case. See Holt v. Keer, 167 N.H. 232, 239 (2015). This standard of
review means that we review the record only to determine whether it
establishes an objective basis that is sufficient to sustain the trial court’s
discretionary judgment. In the Matter of Kurowski & Kurowski, 161 N.H. 578,
585 (2011).
The issues raised by the petitioner in his November 2019 contempt
motion were limited in scope. On appeal, however, he raises several arguments
that were not included in his November 2019 contempt motion. Specifically, he
challenges decisions on other post-final-decree motions and in a collateral
proceeding between the parties, and challenges the conduct of certain judicial
officers under the Code of Judicial Conduct in, or related to, some of those
matters. To the extent that the petitioner raised these arguments in his motion
to reconsider the trial court’s order denying the November 2019 contempt
motion, the trial court was well within its discretion to deny reconsideration
given the lack of any direct relationship between these issues and the
November 2019 contempt motion. See Lillie-Putz Trust v. Downeast Energy
Corp., 160 N.H. 716, 726 (2010) (“Whether to receive further evidence on a
motion for reconsideration rests in the sound discretion of the trial court.”); Mt.
Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55 (2000)
(holding that the trial court acted reasonably and within its discretion by
declining to address new issue raised in a motion for reconsideration).
Otherwise, the arguments are not properly before us as part of this appeal from
the denial of the November 2019 contempt motion, and we decline to address
them further.
The petitioner first argues that Supreme Court Rule 7(1)(B), which
operates together with Supreme Court Rule 3 to classify this appeal as a
discretionary appeal, is contrary to RSA 458-A:35 and :39 (2018) because, he
claims, those statutes provide an absolute right of appeal. We note, however,
that we accepted this appeal, thereby rendering the issue moot. See In the
Matter of Routhier & Routhier, 175 N.H. 6, 19 (2022).
The petitioner next raises several arguments challenging the trial court’s
delay in ruling on the November 2019 contempt motion, and its decision to rule
on the motion without a hearing. Specifically, he argues that the language in
RSA 461-A:4-a requiring that a motion for contempt of a parenting plan be
3
“reviewed” by the trial court within thirty days entitled him to a hearing on the
November 2019 contempt motion within thirty days of when he filed it. He
further argues that the lengthy delay in ruling on the motion violated several
provisions of the State and Federal Constitutions.
At the outset, we acknowledge the delay by the trial court in deciding the
November 2019 contempt motion. Based upon the record before us, it appears
that the trial court’s docket contains more than two hundred entries between
the filing of the November 2019 contempt motion and its decision, and that,
when the petitioner did bring the trial court’s failure to rule on the motion to its
attention on June 27, 2022, it decided the motion within thirty days. The
volume of pleadings in this case suggests that the trial court may have
overlooked the motion. Nevertheless, the record contains nothing that would
excuse the trial court’s failure to rule on the motion for more than two and a
half years.
Notwithstanding the trial court’s delay in ruling on the motion, it is the
petitioner’s burden to establish reversible error. See Gallo v. Traina, 166 N.H.
737, 740 (2014). Within the context of a non-criminal appeal, this generally
requires the appealing party to demonstrate how the alleged error affected the
outcome of the case, regardless of whether the error is grounded upon a
constitutional or statutory right. See Appeal of Ann Miles Builder, 150 N.H.
315, 320 (2003) (stating that a judgment will not be disturbed for an error that
did not affect the outcome below or cause the appealing party injury); McIntire
v. Woodall, 140 N.H. 228, 230 (1995) (stating that a party will not prevail on a
due process claim absent a showing of actual prejudice).
Here, even if we assume, without deciding, that the trial court’s
obligation under RSA 461-A:4-a to “review” the November 2019 contempt
motion within thirty days entitled the petitioner to a hearing, or that the delay
was so excessive that it violated his constitutional rights, we conclude that the
petitioner has failed to establish prejudicial error. We are unpersuaded by the
petitioner’s argument that the circumstances surrounding the November 2019
vacation amounted to “parental alienation” and violated the parenting plan’s
healthy-and-beneficial relationship or joint decision-making provisions.
Accordingly, the record before us does not support a finding that the outcome
would have been different had the trial court held a hearing on the motion or
decided it within a reasonable period of time. See Ann Miles Builder, 150 N.H.
at 320.
Finally, the petitioner argues that the trial court erred by denying his
motion for reconsideration on the basis that it exceeded ten pages. See Fam.
Div. R. 1.26(F). He asserts that the trial court should have waived the ten-page
limitation for good cause. See Fam. Div. R. 1.2. Although the trial court
denied the motion on the basis that it violated the ten-page limitation of Family
Division Rule 1.26(F), the court alternatively denied the motion on its merits,
4
finding that, based upon the court’s review of the motion and the objection to
it, the court had not overlooked or misapprehended any point of fact or law.
See Fam. Div. R. 1.26(F). Based upon our review of the motion and the record,
we cannot conclude that the trial court unsustainably exercised its discretion
by denying the motion on its merits. See Mt. Valley Mall Assocs., 144 N.H. at
654; cf. Koor Communication v. City of Lebanon, 148 N.H. 618, 624 (2002)
(upholding trial court decision because the trial court had set forth alternative
grounds for its decision and the appealing party had challenged only one of
those grounds on appeal).
Issues raised for the first time in the petitioner’s reply brief are waived.
See Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 617-18 (1987). In light of
this opinion, the respondent’s request in her memorandum of law that we
dismiss the appeal is moot.
Affirmed.
MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.
5