In re McAndrews

171 N.H. 214

193 A.3d 834

In the MATTER OF Eric MCANDREWS and Sachet Woodson

No. 2017-0518

Supreme Court of New Hampshire.

Argued: May 15, 2018

Opinion Issued: August 10, 2018

Shanelaris & Schirch, PLLC, of Nashua (Catherine E. Shanelaris and Jennifer E. Warburton on the brief, and Ms. Warburton orally), for the petitioner.

Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief and orally), for the respondent.

DONOVAN, J.

The petitioner, Eric McAndrews, appeals an order recommended by a Marital Master (DalPra, M.) and approved by the Circuit Court (Introcaso, J.) dismissing his petition to modify a parenting plan on inconvenient forum grounds. The parenting plan pertains to the petitioner's child with whom he shares custody with the respondent, Sachet Woodson. On appeal, the petitioner argues that the trial court erred in dismissing his petition because it conducted an improper and incomplete inconvenient forum analysis pursuant to RSA 458-A:18 (Supp. 2017), a provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See generally RSA 458-A (Supp. 2017). We vacate and remand.

The record supports the following facts. The parties are the unmarried parents of their child, who was 4 years of age at the time of the hearing that is the subject of this appeal. In January 2014, the parties negotiated and filed a joint parenting plan that was subsequently approved by the trial court. The court-approved plan provided that: (1) the parties would exercise joint decision-making responsibility for their child; (2) the child would reside with the petitioner four months in any given year; and (3) the respondent would maintain primary residential responsibility for the child. The parties further stipulated that they would revisit the question of their child's legal residence within six months of her enrollment in kindergarten. Finally, the plan permitted the respondent and child to relocate to California, but established that any "[f]urther relocations must be approved by the Court" and that New Hampshire "shall retain jurisdiction over the child for future modifications."

Since the trial court's approval of the original parenting plan, the petitioner has continuously resided in New Hampshire and maintained significant visitation and parenting time in this state. In 2014, the trial court entertained and denied the petitioner's motion to modify the parenting plan. The trial court also ordered a modification to the petitioner's child support obligation in April 2015.

In late 2015, the respondent and child moved from California to Indiana without the trial court's approval or the petitioner's prior knowledge. In February 2017, the petitioner filed a petition with the trial court seeking to modify the parenting plan to provide him with primary residential responsibility for the child. As grounds for this modification, the petitioner complained that the respondent had moved the child to a different state without court approval, and alleged that the child was undernourished, subjected to physical discipline, and that her home life had little structure. Approximately six weeks later, the respondent filed a petition in Indiana seeking a custody order establishing parenting time in that state without informing the court in Indiana of the parenting plan or the pending petition to modify in New Hampshire. She also filed a motion to dismiss the modification petition in New Hampshire claiming that New Hampshire did not have jurisdiction.

On May 3, 2017, the marital master held a hearing, at which the parties made offers of proof with respect to the pending motion to dismiss and the petition to modify. In an order that was subsequently approved by the trial court, the master found that both New Hampshire and Indiana had jurisdiction over the matter and that its task was to determine whether New Hampshire was "the better venue or an inconvenient forum" pursuant to the terms of the UCCJEA. RSA 458-A:18, II provides, in pertinent part, that when deciding whether New Hampshire "is an inconvenient forum under the circumstances and a court of another state is a more appropriate forum," trial courts "shall consider all relevant factors, including":

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

RSA 458-A:18, II.

In his written decision, the master determined that: (1) "[t]here are no complaints of domestic violence"; (2) "[t]he parties are not wealthy"; (3) "[t]he child has resided outside [New Hampshire] since January 2015 and in [Indiana] since December 2015"; (4) "the child's parenting time with the [petitioner] in [New Hampshire] is significant"; and (5) "virtually all the evidence that may support [the petitioner's] allegations [of improper care] is located in [Indiana]." See id. Based upon this analysis, the master recommended, and the trial court approved, the dismissal of the New Hampshire action conditioned upon Indiana's acceptance of jurisdiction. In August 2017, the Indiana court accepted jurisdiction of the case. This appeal followed.

On appeal, the petitioner argues, in part, that the trial court erred by conducting a "partial" or "conflated" inconvenient forum analysis under RSA 458-A:18. We interpret this argument as a challenge to the trial court's inconvenient forum analysis based upon the trial court's failure to adequately consider all of the factors set forth in the statute when it found Indiana to be a more appropriate forum. The respondent, on the other hand, maintains that the trial court applied the correct legal standard when it implicitly found that New Hampshire is an inconvenient forum and that its decision that Indiana is the more appropriate forum is a sustainable exercise of the trial court's discretion.

Generally, a trial court's dismissal of a case on an inconvenient forum basis falls within the court's discretion. See In re Estate of Mullin, 169 N.H. 632, 639, 155 A.3d 555 (2017) ; see also Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24, 33 (2006) (decision to decline jurisdiction under the UCCJEA on an inconvenient forum basis is "entrusted to the discretion of the trial court"). We will overturn the trial court's decision only if we find an unsustainable exercise of discretion. Mullin, 169 N.H. at 639, 155 A.3d 555. This standard of review requires that the petitioner "demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of [his] case." Id. (quotation omitted).

Before addressing the petitioner's arguments, we review the statutory framework and purposes of the UCCJEA. See In the Matter of Yaman & Yaman, 167 N.H. 82, 87, 105 A.3d 600 (2014). The UCCJEA was first promulgated, in part, to resolve issues resulting from decades of conflicting court decisions interpreting and applying its statutory predecessor, the Uniform Child Custody Jurisdiction Act. Id. The purposes of the UCCJEA, as described by its promulgating body, the National Conference of Commissioners on Uniform State Laws, are, inter alia, to " ‘[a]void jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being’ " and to " ‘[d]iscourage the use of the interstate system for continuing controversies over child custody.’ " Id. (quoting UCCJEA § 101, cmt., 9-IA U.L.A. 657 (1999) ). In 2009, New Hampshire adopted the UCCJEA, and it subsequently took effect in December 2010. Id. Indiana adopted the UCCJEA in 2007. See 2007 Ind. Act 1957; see also Ind. Code § 31-21 (2018).

The task of avoiding jurisdictional conflicts begins with an initial determination as to which state maintains exclusive and continuing jurisdiction. In this case, there is no dispute that, at the time the respondent filed her custody petition in Indiana, New Hampshire had exclusive, continuing jurisdiction by virtue of the trial court's approval of the original parenting plan submitted by the parties and the petitioner's continued residence here. Because the petitioner continues to reside in this state, the trial court in New Hampshire, as the court maintaining exclusive, continuing jurisdiction, must determine the parties' residence and connections to this state before relinquishing jurisdiction on inconvenient forum or other grounds. See RSA 458-A:13, I, :14 (Supp. 2017).

When a parent continues to reside in New Hampshire and the child maintains a significant connection to this state, a party seeking to modify the initial custody order in another jurisdiction must first obtain an order from the New Hampshire court stating either that it no longer has jurisdiction or that an Indiana court would be a more convenient forum. See Ind. Code § 31-21-5-3(1).¹ The record submitted on appeal does not demonstrate that the respondent complied with this, and several other, requirements when she filed her custody petition in Indiana. See Ind. Code § 31-21-5-10 (requiring information about other custody or visitation proceedings when initiating a child custody matter). Absent certain circumstances not present here, the Indiana court lacked jurisdiction to act on her petition without the New Hampshire court first relinquishing its...