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Docket Number

No. 2009-312.

Attorney(S)

Decato Law Office, of Lebanon ( R. Peter Decato on the brief and orally), for the petitioner. Stebbins Bradley Harvey Miller Brooks, P.A., of Hanover ( Stephen P. Girdwood on the brief and orally), for the respondent.

Judges

Linda S. Dalianis

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Smart Summary

Case Summary — In the Matter of Adam Muchmore and Amy Jaycox, No. 2009-312 (Sup. Ct. N.H. Dec. 4, 2009)

Factual and Procedural Background

The parties are the unwed parents of a daughter born in September 2006. At the child's birth both parents lived in Vermont; they later moved to New Hampshire. In June 2007 a Vermont court entered a stipulation and order granting the respondent, Amy M. Jaycox, "primary legal and physical parental rights and responsibilities" and permitting the petitioner, Adam Muchmore, regular weekly contact; the Vermont stipulation allowed either party to petition to modify the parenting schedule when the child was between ages three and four.

In July 2008 the petitioner registered the Vermont stipulation and order in New Hampshire and petitioned the Lebanon Family Division to modify it. The petitioner asserted three statutory bases for modification under RSA 461-A:11: (1) repeated, intentional and unjustified interference by the respondent such that modification would be in the child's best interests (RSA 461-A:11, I(b)); (2) clear and convincing evidence that the child's present environment was harmful (RSA 461-A:11, I(c)); and (3) that, because of the respondent's conduct, the original allocation was not working (RSA 461-A:11, I(d)). The respondent objected and moved to dismiss for failure to meet the statutory burden.

Following an evidentiary hearing the trial court denied the respondent's motion, concluding that although the petitioner failed to prove the specific RSA 461-A:11 statutory grounds (I(b) and I(c)), modification was nonetheless warranted because modification would be in the child's best interests and, the court reasoned, RSA 461-A:4 required only a best-interests showing. The respondent's motion for reconsideration was denied, and the respondent appealed. The New Hampshire Supreme Court reversed.

Legal Issues Presented

Whether a parent may obtain modification of an existing parenting plan in New Hampshire solely by proving that modification is in the child's best interests, absent proof of one of the specific statutory circumstances listed in RSA 461-A:11, I.
Whether a Vermont stipulation and decree that allocates parental rights and parenting time qualifies as a "parenting plan" under RSA chapter 461-A such that RSA 461-A:11 applies to modification of that decree after registration in New Hampshire.
Whether a requested change characterized as "visitation" is exempt from RSA 461-A:11 modification requirements, or whether the statutory framework treats such requests as changes to parental rights and responsibilities governed by chapter 461-A.

Arguments of the Parties

Petitioner's (Appellant's) Arguments

The petitioner sought modification under RSA 461-A:11, asserting three statutory grounds: I(b) (interference and best interests), I(c) (present environment harmful, clear and convincing), and I(d) (original allocation not working given substantially equal residential periods).
Alternatively, the petitioner argued that even if none of the RSA 461-A:11 circumstances existed, he was still entitled to modification based solely upon proof that modification was in the child's best interests, relying on the language in RSA 461-A:4 requiring a parenting plan in "any proceeding to establish or modify" a parenting plan.
The petitioner argued that the Vermont stipulation and decree did not constitute a "parenting plan" because it lacked comprehensiveness typical of New Hampshire parenting plans, and thus RSA 461-A:11 did not apply (the trial court therefore would be creating a new plan rather than modifying an existing one).
The petitioner contended that he sought only a change to "visitation" and that such changes are governed by RSA 461-A:4 rather than the modification provisions of RSA 461-A:11.

Respondent's Arguments

The respondent objected to the petition and moved to dismiss on the ground that the petitioner had failed to meet the statutory burden required by RSA 461-A:11 to justify modification of an existing parenting plan.
The respondent argued that the petitioner did not prove any of the specific statutory circumstances listed in RSA 461-A:11 and therefore was not entitled to modification.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In the Matter of Choy Choy, 154 N.H. 707, 711 (2007)	Standard of appellate review for modification of parenting rights: trial court's modification will not be overturned unless it clearly appears the court unsustainably exercised its discretion.	The court stated it would not overturn a trial court's modification of parenting rights absent unsustainable exercise of discretion, then proceeded to apply de novo review for statutory interpretation issues implicated by the modification.
In the Matter of Carr Edmunds, 156 N.H. 498, 503-04 (2007)	Principles of statutory interpretation: court as final arbiter of legislative intent; interpret statute as whole; consult plain meaning first.	The court invoked these principles in conducting de novo review of RSA chapter 461-A, explaining that it begins with the statutory language and will not add language the legislature did not include.
In the Matter of LaRue Bedard, 156 N.H. 378, 380 (2007)	When examining statutory language, ascribe plain and ordinary meaning; do not add language the legislature did not enact.	The court relied on this precedent to reject the petitioner's request to read an implied best-interests-only modification right into RSA 461-A:11 and refused to add language to the statute.
Fichtner v. Pittsley, 146 N.H. 512, 514 (2001)	Statutes should be applied in light of legislative intent and the overall policy sought to be advanced by the statutory scheme.	The court cited this principle while interpreting RSA chapter 461-A in context, emphasizing application of statutory language consistent with legislative intent and the scheme's policy.
Zorn v. Demetri, 158 N.H. 437, 441 (2009)	The legislature is free to amend statutes if it disagrees with a court's construction.	The court used this citation when noting that if the legislature disagrees with the court's statutory construction (that RSA 461-A:11 limits modification to the listed circumstances), the legislature may amend the statute.
State v. Ingerson, 130 N.H. 112, 117 (1987)	Under the court's supervisory authority, it should avoid invading policy areas better decided by the legislature.	The court relied on this precedent to explain that creating new policy (e.g., allowing modification on a best-interests-only basis when the statute lists separate grounds) would be an inappropriate exercise of judicial authority and better left to legislative enactment.

Court's Reasoning and Analysis

The court framed the dispute as primarily a question of statutory interpretation and applied de novo review to the trial court's interpretation of RSA chapter 461-A. It began with the plain language of the statutes at issue and proceeded stepwise:

RSA 461-A:4, I — The court observed that this provision, by its plain meaning, requires parents to develop and file a parenting plan for inclusion in a court decree "in any proceeding to establish or modify a judgment providing for parenting time with a child." The provision applies both when establishing a plan initially and when modifying an existing plan, but is silent about when a parent may seek modification.
RSA 461-A:11 — The court explained that RSA 461-A:11 governs when a parent may seek modification of an existing parenting plan. The statute permits modification only after the party seeking modification proves that one of four enumerated circumstances exists: (a) parental agreement to the modification; (b) repeated and intentional interference by one parent coupled with a best-interests finding; (c) clear and convincing evidence that the child's present environment is detrimental and that the advantage of modifying outweighs harm from changing the environment; or (d) substantially equal residential periods and a finding that the original allocation is not working and that modification is in the child's best interests.
Burden of Proof and Order of Analysis — The court emphasized that only after proof that one of the RSA 461-A:11 circumstances exists may a court modify the existing plan. The court noted that when drafting a modified plan, the court must consider only the child's best interests and the safety of the parties (citing RSA 461-A:4, I, and RSA 461-A:6).
Application to Record Facts — The trial court had found the petitioner failed to meet RSA 461-A:11 I(b) and I(c); the parties agreed he had not met I(d). The New Hampshire Supreme Court concluded the petitioner had not established any of the statutory circumstances required by RSA 461-A:11, I.
Rejection of Petitioner's Best-Interests-Only Construction — The court rejected the petitioner's argument that RSA 461-A:4's reference to "any proceeding to establish or modify" allows modification based solely on a best-interests showing. The court held that RSA 461-A:11, II requires proof of one of the four circumstances before modification is permitted; RSA 461-A:11 does not provide discretion to modify in other circumstances. The court declined to add language to the statute to create a best-interests-only ground for modification.
Vermont Stipulation as Parenting Plan — The court addressed the petitioner's contention that the Vermont decree was not a "parenting plan." Relying on RSA 461-A:1, V's definition of "parenting plan" as "a written plan describing each parent's rights and responsibilities," the court held that the Vermont stipulation and decree met that definition and constituted a "judgment providing for parenting time with a child" within RSA chapter 461-A.
Full Faith/Recognition under UCCJA (RSA ch. 458-A) — The court stated that under the Uniform Child Custody Jurisdiction Act, the New Hampshire court was required to "recognize and enforce" the Vermont decree (citing RSA 458-A:13 and RSA 458-A:15) and could not ignore the out-of-state custody decree when considering modification.
Rejection of "Visitation" Argument — The court rejected the petitioner's argument that the requested change was merely "visitation" and therefore exempt from RSA 461-A:11. The opinion noted that the terms "visitation" and "custody" are anachronisms in chapter 461-A: "visitation" pertains to privileges for non-parents and "custody" has been replaced by "parental rights and responsibilities." The court found the plain language did not support treating the petitioner's request outside RSA 461-A:11.
Separation of Roles — The court observed that even if the statutory scheme produced unsatisfying results in certain fact patterns (for example, preventing reassessment of best interests absent a listed circumstance), it is not the court's role to rewrite the statute; legislative amendment would be the appropriate mechanism to change the statutory framework.

Holding and Implications

REVERSED.

Holding: The New Hampshire Supreme Court held that the trial court erred in modifying the parties' parenting plan because the petitioner did not prove any of the circumstances enumerated in RSA 461-A:11, I, and RSA 461-A:11 does not permit modification based solely on a best-interests showing. The court also held that the Vermont stipulation constituted a "parenting plan" and that the New Hampshire court was required to recognize and enforce the Vermont decree under RSA chapter 458-A.

Implications: As a direct effect, the trial court's modification of the parenting plan was reversed. The court's decision constrains trial courts from modifying an existing parenting plan unless the party seeking modification proves one of the specific statutory grounds enumerated in RSA 461-A:11, I. The court noted that if the legislature wishes to permit modification on broader grounds (for example, a best-interests-only standard in the absence of the listed circumstances), it may amend the statute; absent amendment, the court will not add such a ground by judicial construction.

This summary is based exclusively on the text of the provided opinion and does not add information beyond that opinion.

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IN THE MATTER OF ADAM MUCHMORE AND AMY JAYCOX.

2. Parent and Child — Custody — Particular Cases

1. Parent and Child — Custody — Parental Rights and Duties

Pursuant to its plain meaning, the statute governing parenting plans requires parents to submit a parenting plan to the court for inclusion in its decree. This requirement pertains both to proceedings to establish a parenting plan in the first instance and to modify an existing plan. RSA 461-A:4, I.

A father was not entitled to modification of a parenting schedule based only upon proof that modification was in the child's best interests. The statute governing modification of parental rights and responsibilities requires the party seeking modification to prove that one of the four circumstances listed in the statute exists. The statute allows a trial court to modify an existing parenting plan under any of those circumstances. It does not grant the court discretion to modify an existing plan under any other circumstances. Had the legislature intended to permit the trial court to modify a parenting plan under circumstances other than those listed in the statute, it could have said so. RSA 461-A:11, I, II.

There was no merit to a father's argument that a Vermont stipulation was not a "parenting plan" and that the statute governing modification thus did not apply because the trial court was not modifying an existing parenting plan but creating a new one. The definitions statute of the chapter pertaining to parental rights and responsibilities defined a "parenting plan" as a "written plan describing each parent's rights and responsibilities." The Vermont stipulation and decree met this definition and was a "judgment providing for parenting time with a child" within the meaning of the chapter. Moreover, pursuant to the Uniform Child Custody Jurisdiction Act, the trial court was required to "recognize and enforce" the Vermont decree; it could not ignore it. RSA 458-A:13; 461-A:1, V; 4, I.

Plain language of both provisions failed to support a father's argument that the statute governing modification of parental rights and responsibilities did not apply because he merely sought a change to "visitation". RSA 461-A:4; :11.

The terms "visitation" and "custody," referring to parental rights and responsibilities, are anachronisms. The word "visitation" is used in the chapter regarding parental rights and responsibilities to refer to privileges granted to non-parents, such as stepparents and grandparents. The word "custody" has been replaced in the chapter with the phrase "parental rights and responsibilities." RSA 461-A:6, V; :20.

DALIANIS, J.

The respondent, Amy M. Jaycox, appeals an order of the Lebanon Family Division ( MacLeod, J.) modifying the parties' parenting plan. We reverse.

The record evidences the following facts. The parties are the unwed parents of a daughter, who was born in September 2006. When the child was born, both parents resided in Vermont; they now reside in New Hampshire.

In June 2007, a Vermont court entered a stipulation and order granting the respondent "primary legal and physical parental rights and responsibilities" for the child and allowing the petitioner, Adam Muchmore, regular weekly contact with the child. The stipulation and order permitted either party to petition to modify the parenting schedule when the child was between the ages of three and four.

In July 2008, when the child was not quite two years old, the petitioner petitioned the Lebanon Family Division to register the Vermont stipulation and order in New Hampshire, see RSA 458-A:15 (2004), and to modify it, see RSA 458-A:14 (2004); RSA 461-A:11 (Supp. 2008). The petitioner contended that modification was warranted because: (1) the respondent had "repeatedly, intentionally, and without justification" interfered with his parental responsibilities for the child and modification would be in the child's best interests, see RSA 461-A:11, I(b); (2) there was clear and convincing evidence that the child's present environment was harmful to her, see RSA 461-A:11, I(c); and (3) because of the respondent's conduct, the original allocation of parental rights and responsibilities was not working, see RSA 461-A:11, I(d).

The respondent objected and moved to dismiss the petition on the ground that the petitioner had failed to meet his burden of proof under RSA 461-A:11. Following an evidentiary hearing, the trial court denied the motion, ruling that while the petitioner's evidence was insufficient to carry his burden of proof under RSA 461-A:11, I(b) or (c), it was sufficient to establish that modifying the parties' parenting schedule would be in the child's best interests, and that, pursuant to RSA 461-A:4 (Supp. 2008), proof that modification was in the child's best interests was all that was required. The respondent moved for reconsideration, which was denied, and this appeal followed.

We will not overturn a trial court's modification of an order regarding parenting rights and responsibilities unless it clearly appears that the court unsustainably exercised its discretion. See In the Matter of Choy Choy, 154 N.H. 707, 711 (2007). Resolving the issues in this appeal requires that we engage in statutory interpretation. We review a trial court's statutory interpretation de novo. Id. We note, at the outset, that there is no choice of law issue in this case because the parties agree that New Hampshire law governs.

In matters of statutory interpretation, we are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. In the Matter of Carr Edmunds, 156 N.H. 498, 503-04 (2007). We begin our analysis by looking to the language of the statute itself. In the Matter of LaRue Bedard, 156 N.H. 378, 380 (2007). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. If the language is plain and unambiguous, then we need not look beyond it for further indication of legislative intent. Id. We interpret a statute in the context of the overall statutory scheme and not in isolation. In the Matter of Carr Edmunds, 156 N.H. at 504. "Our goal is to apply statutes in light of the legislature's intent in enacting them and in light of the policy sought to be advanced by the entire statutory scheme." Fichtner v. Pittsley, 146 N.H. 512, 514 (2001) (quotation omitted).

RSA 461-A:4, I, provides, in pertinent part:

In any proceeding to establish or modify a judgment providing for parenting time with a child, . . . the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan under this section, the court may develop it.

Pursuant to its plain meaning, RSA 461-A:4, I, requires parents to submit a parenting plan to the court for inclusion in its decree. This requirement pertains both to proceedings to establish a parenting plan in the first instance and to modify an existing plan. See RSA 461-A:4, I. RSA 461-A:4, I, is silent, however, as to when a parent may seek to modify an existing parenting plan.

RSA 461-A:11 governs the circumstances under which a parent may seek modification of an existing parenting plan. RSA 461-A:11 provides: "The court may issue an order modifying a permanent order concerning parenting rights and responsibilities" once a parent has proved that any one of four circumstances exists: (1) the parents have agreed to the modification, see RSA 461-A:11, I(a); (2) one parent has repeatedly and intentionally interfered with the other parent's residential responsibilities and modifying the parents' responsibilities would be in the child's best interests, see RSA 461-A:11, I(b); (3) the court finds by clear and convincing evidence that the child's present environment is detrimental to the child and the advantage of modifying the order outweighs the harm to the child from changing her environment, see RSA 461-A:11, I(c); or (4) the parents "have substantially equal periods of residential responsibility for the child," either one parent asserts or the court finds that the original allocation is not working, and modifying the order is in the child's best interests, see RSA 461-A:11, I(d).

Only after a parent has proved that one of these circumstances exists may the court then modify the existing plan. See RSA 461-A:11. When drafting a modified parenting plan, the court must consider "only the best interests of the child as provided under RSA 461-A:6 and the safety of the parties." RSA 461-A:4, I, :6 (Supp. 2008).

Here, the trial court found that the petitioner did not meet his burden of proof under RSA 461-A:11, I(b) or (c). Although the trial court did not address whether he met his burden of proof under RSA 461-A:11, I(d), the parties agree that he failed to do so. The petitioner contends that even though none of the circumstances set forth in RSA 461-A:11, I, exists, he was entitled, nonetheless, to a modification of the existing parenting plan based only upon proof that doing so was in the child's best interests. He surmises that when none of the circumstances set forth in RSA 461-A:11, I, apply, a parent may seek modification when doing so is in the child's best interests. To support this assertion, he relies upon the reference to a proceeding to modify a parenting plan found in RSA 461-A:4, I. See RSA 461-A:4, I (requiring parents in "any proceeding to establish or modify" a parenting plan to submit such a plan to the court).

The plain language of RSA 461-A:11, I, does not support this construction. RSA 461-A:11, II requires the party seeking modification to prove that one of the four circumstances listed in RSA 461-A:11, I, exists. RSA 461-A:11, I, allows a trial court to modify an existing parenting plan under any of those circumstances. RSA 461-A:11, I, does not grant the court discretion to modify an existing plan under any other circumstances. The petitioner's assertion requires that we add language to RSA 461-A:11, I, which we cannot do. See In the Matter of LaRue Bedard, 156 N.H. at 380. Had the legislature intended to permit the trial court to modify a parenting plan under circumstances other than those listed in RSA 461-A:11, it could have said so. Of course, if the legislature disagrees with our construction, it is free to amend the statute as it sees fit. See Zorn v. Demetri, 158 N.H. 437, 441 (2009).

RSA 461-A:11, I, simply does not allow a party to seek modification of an existing parenting plan when, as in this case, none of the circumstances listed therein exists. While this problem may regrettably prevent a trial court from reassessing the best interests of a child in circumstances where the parents are not interfering and where the child's current environment is not detrimental, it is not up to the court to solve it or to speculate as to how the legislature might choose to do so. For us to determine on review whether modification may be had under the circumstances of this case, and, if so, the burden of proof to be applied, "under our constitutional supervisory authority would in our view be an invasion of a policy area better decided by the legislature." State v. Ingerson, 130 N.H. 112, 117 (1987).

The petitioner argues that RSA 461-A:11 does not apply to this case because the trial court was not, in fact, modifying an existing parenting plan, but creating a new one. The Vermont order, he contends, "did not constitute a parenting plan" because it "was not comprehensive and didn't include all of the features commonly seen in a New Hampshire parenting plan." RSA 461-A:1, V (Supp. 2008) defines a "[p]arenting plan" as a "written plan describing each parent's rights and responsibilities." The Vermont stipulation and decree meets this definition and was a "judgment providing for parenting time with a child" within the meaning of RSA chapter 461-A. RSA 461-A:4, I.

Moreover, pursuant to the Uniform Child Custody Jurisdiction Act, see RSA ch. 458-A (2004 Supp. 2008), the trial court was required to "recognize and enforce" the Vermont decree, RSA 458-A:13; it could not ignore it. An out-of-state custody decree that has been filed in this state "has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state." RSA 458-A:15, I; see RSA 461-A:20 (Supp. 2008) (the word "custody" means "the allocation of parental rights and responsibilities" as provided in RSA chapter 461-A).

The petitioner also argues that RSA 461-A:11 does not apply because he merely sought a change to "visitation," and such changes, he asserts, are governed by RSA 461-A:4. The plain language of both provisions fails to support these contentions. Moreover, several provisions in RSA chapter 461-A make clear that the terms "visitation" and "custody," referring to parental rights and responsibilities, are anachronisms. The word "visitation" is used in RSA chapter 461 to refer to privileges granted to non-parents, such as stepparents and grandparents. See RSA 461-A:6, V (Supp. 2008) (allowing court to grant "reasonable visitation privileges" to stepparents and grandparents when doing so is in child's best interests). The word "custody" has been replaced in RSA chapter 461-A with the phrase "parental rights and responsibilities." See RSA 461-A:20.

For all of the above reasons, therefore, we conclude that the trial court erred by modifying the parties' decree absent proof of one of the circumstances listed in RSA 461-A:11.

Reversed.

BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

IN RE MUCHMORE JAYCOX