In the Matter of Bryanna Breed and Kevin Breed

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2022-0271, In the Matter of Bryanna Breed and
Kevin Breed, the court on February 1, 2023, issued the following
order:
The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The petitioner, Bryanna Breed, appeals the final decree
entered by the Circuit Court (Garner, J.) in her divorce from the respondent,
Kevin Breed. We affirm.
The trial court has broad discretion in fashioning a final divorce decree.
In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014). We will not
overturn the trial court’s decision absent an unsustainable exercise of
discretion. Id. To establish an unsustainable exercise of discretion, the
petitioner must demonstrate that the trial court’s decision was clearly
untenable or unreasonable to the prejudice of her case. In the Matter of
Peirano & Larsen, 155 N.H. 738, 750 (2007). We “determine only whether
there is an objective basis sufficient to sustain the discretionary judgment
made.” In the Matter of Kempton & Kempton, 167 N.H. 785, 803 (2015). “Our
standard of review is not whether we would rule differently than the trial court,
but whether a reasonable person could have reached the same decision as the
trial court based upon the same evidence.” Id. at 799.
We will not disturb the trial court’s factual findings unless they are
unsupported by the evidence or legally erroneous. In the Matter of Nyhan and
Nyhan, 147 N.H. 768, 770 (2002). Moreover, “we defer to the trial court’s
judgment on such issues as resolving conflicts in the testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence.”
Cook v. Sullivan, 149 N.H. 774, 780 (2003). “If the court’s findings can
reasonably be made on the evidence presented, they will stand.” In the Matter
of Letendre & Letendre, 149 N.H. 31, 36 (2002).
Based upon our review of the trial court’s final divorce decree, including
the parties’ final parenting plan, the petitioner’s arguments, the relevant law,
and the record submitted on appeal, we conclude that the petitioner has not
demonstrated reversible error. See Sup. Ct. R. 25(8).
We observe that, in her brief, the petitioner asks that the respondent’s
visitation be supervised, that he be subject to random drug tests, and that she
be awarded sole decision-making authority for the parties’ children, based on
evidence allegedly contained within a USB drive. With her brief, the petitioner
submitted a motion asserting that she had filed the USB drive and other “print
out evidence” with the trial court, and requesting permission to “submit as
evidence with [her] brief” such evidence. We granted the motion in part,
ordering the trial court to “transfer to this court any USB drive filed by” the
petitioner there, but denying the motion as to any “print out evidence” that the
petitioner may have filed in the trial court, noting the petitioner’s responsibility
to provide any such evidence in an appendix under Rule 13. In response to
our order, the trial court transferred two USB drives that the petitioner had
filed with it, but noted that she had filed both drives after she had already filed
this appeal, and that, because the case had been appealed, and because the
USB drives did not pertain to a collateral or subsidiary matter, it had not
reviewed either drive. See Rautenberg v. Munnis, 107 N.H. 446, 447-48 (1966)
(stating that, once a case is appealed, the trial court lacks authority to act with
respect to the case other than with respect to collateral, subsidiary, or
independent matters affecting it).
“On appeal, we consider only evidence and documents presented to the
trial court.” Flaherty v. Dixey, 158 N.H. 385, 387 (2009). Although the
petitioner presented the USB drives to the trial court, she did so after she had
already appealed, and the trial court therefore properly declined to review
them. See Rautenberg, 107 N.H. at 447. Because the trial court has not
reviewed the USB drives, we, too, have not reviewed them in issuing this order.
Having upheld the trial court’s final decree, the petitioner may now seek
directly from the trial court whatever relief she may be entitled to based upon
the content of the USB drives and any other evidence she may have submitted
to the trial court after she filed this appeal.
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
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