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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


9th Circuit Court-Nashua Family Division
No. 2017-0518


      IN THE MATTER OF ERIC MCANDREWS AND SACHET WOODSON

                            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”:




                                         2
      (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 (2017); see also Watson v. Watson, 724 N.W.2d 24, 33 (Neb. 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



                                         3
trial court’s decision only if we find an unsustainable exercise of discretion.
Mullin, 169 N.H. at 639. 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 (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

1
 We recognize that there are circumstances, not relevant to the present matter, which would
permit a court from a jurisdiction without exclusive, continuing jurisdiction to modify a child-
custody determination. See Ind. Code § 31-21-5-3-(2) (where a court determines that the child,
the child’s parents, and any person acting as a parent do not presently reside in the other state),
§ 31-21-5-4 (temporary emergency jurisdiction); see also RSA 458-A:14, II, :15.



                                                 4
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 jurisdiction. See Ind. Code § 31-21-5-3.
As the court with exclusive, continuing jurisdiction, the trial court in New
Hampshire may, of course, decline to exercise jurisdiction, but only “if it
determines that it is an inconvenient forum under the circumstances and that
a court of another state is a more appropriate forum.” RSA 458-A:18, I. When
a trial court declines jurisdiction under the UCCJEA, the “objecting party is
entitled to know that the trial court has engaged in a proper consideration of
‘all relevant factors’ and to a record that allows for meaningful appellate
review.” Watson, 724 N.W.2d at 34. It is in light of these statutory conditions
that we now address the petitioner’s challenge to the trial court’s decision to
cede jurisdiction and dismiss the petition to modify the original custody order.

       As previously noted, the UCCJEA requires that, when deciding whether
New Hampshire is an inconvenient forum and a court of another state is a
more appropriate forum, trial courts “shall consider all relevant factors,
including” the eight specific factors set forth in the statute. RSA 458-A:18, II
(emphasis added). Addressing the parties’ arguments on appeal, therefore,
requires that we interpret this specific provision of the statute. Our review of
the trial court’s statutory interpretation is de novo. Yaman, 167 N.H. at 86.
“When examining the language of a statute, we ascribe the plain and ordinary
meaning to the words used.” In the Matter of Sheys & Blackburn, 168 N.H. 35,
37 (2015). “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. at 37-38. “When the language of a
statute is unambiguous, we do not look beyond it for further indications of
legislative intent.” Id. at 38. Because a primary purpose of the UCCJEA is “to
make uniform the law among the various jurisdictions, we look to other
jurisdictions for guidance.” Bursey v. CFX Bank, 145 N.H. 126, 129 (2000)
(quotation omitted).

       By its use of the word “shall,” the UCCJEA plainly requires that a trial
court vested with exclusive, continuing jurisdiction over a child-custody matter
engage in a complete and thorough inquiry with strict adherence to the statute’s
terms before the court declines jurisdiction on inconvenient forum grounds. See
McCarthy v. Wheeler, 152 N.H. 643, 645 (2005) (considering the legislature’s use
of the word “shall” as a command, indicating a mandatory intent). Courts in
other jurisdictions have similarly interpreted the UCCJEA’s inconvenient forum
test as requiring strict adherence to the statute. See, e.g., Hogan v. McAndrew,
131 A.3d 717, 724 (R.I. 2016); Watson, 724 N.W.2d at 32. Declining to maintain
jurisdiction over a child-custody matter when a court initially possesses
exclusive, continuing jurisdiction should not be undertaken lightly: rather, the



                                       5
court’s decision must be based upon a thorough analysis of the evidence within
the strict guidelines of the statute. Hogan, 131 A.3d at 724.

      On appeal, the petitioner argues that the trial court improperly conflated
the UCCJEA’s inconvenient forum test by not engaging in a two-step analysis
that requires an explicit finding that, first, New Hampshire is an inconvenient
forum and, second, Indiana is a more appropriate forum based upon the
factors set forth in RSA 458-A:18, II. The respondent maintains, however, that
the petitioner’s “two-step” argument is not preserved for our review.

       We first address the respondent’s preservation argument. While the
petitioner may not have articulated his arguments to the trial court in precisely
the same manner as he has on appeal, his claims of error are subsumed within
his challenge to the trial court’s interpretation and application of RSA 458-
A:18. Whether the petitioner argues that the trial court’s analysis was
incomplete, conflated, or required a “two-step” inquiry is of no moment,
because the basic and broader nature of his challenge — that the court erred
by failing to consider all relevant factors in reaching its conclusion that Indiana
was the more convenient forum — was squarely placed before the trial court by
way of the petitioner’s pleadings seeking reconsideration. See Farrelly v. City
of Concord, 168 N.H. 430, 438 (2015) (ruling that plaintiff’s statutory argument
to the trial court adequately preserved common law claims under same theory
of relief). We, therefore, conclude that the petitioner adequately preserved his
challenge by affording the trial court an opportunity to consider the issue now
raised on appeal and provided it with an opportunity to correct the error. See
State v. Mouser, 168 N.H. 19, 27 (2015); State v. Town, 163 N.H. 790, 792
(2012).

         We now address the merits of the petitioner’s argument on appeal. The
petitioner maintains that the trial court failed to conduct a proper inconvenient
forum analysis under RSA 458-A:18, II when it did not consider all of the
factors set forth in the statute. We agree. RSA 458-A:18, II requires the
consideration of “all relevant factors.” RSA 458-A:18, II (emphasis added).
Here, the trial court’s analysis fails to articulate how or whether it considered
several of the factors enumerated within the statute, including RSA 458-A:18,
II: (c) the distance between the court in this state and the court that would
assume jurisdiction; (e) the parties’ agreement on which state should assume
jurisdiction; (g) each court’s ability to decide issues and procedures necessary
to present evidence; and (h) each court’s familiarity with the facts and issues in
the pending litigation. Additionally, the order lacks a meaningful analysis of
the factors that the trial court relied upon. Instead, the trial court appears to
have based its decision upon just two factors: (1) the child’s “more significant
connection” to Indiana; and (2) the location of “virtually all the evidence” in
Indiana pertaining to some of the petitioner’s allegations.




                                        6
       Although the trial court’s order includes a passing reference to the factor
set forth in RSA 458-A:18, II(e), pertaining to any forum-selection agreement
between the parties, we are concerned that the order lacks any analysis of the
import of this factor. The parties originally agreed that New Hampshire would
maintain jurisdiction despite the anticipated relocation of the respondent and
child to California. Yet, the trial court did not consider whether the child’s
relocation from California to Indiana made New Hampshire a more or less
convenient forum, despite the fact that the child’s relocation to Indiana
substantially reduced the distance between the trial court and the child’s
residence. The trial court may have considered the parties’ forum-selection
agreement, but it did not assess its significance or balance its import in
relation to the other factors in reaching its decision.2

       Nor did the court address all of the factors necessary to determine
whether New Hampshire is an inconvenient forum. For example, the order is
silent on whether or how the court assessed the factor pertaining to the
familiarity of the court of each state with the pending litigation. See RSA 458-
A:18, II(h). Notably, the record before us indicates that, in 2014, the court in
New Hampshire approved the original parenting plan and ruled on the
petitioner’s modification petition, and, in 2015, the court modified the
applicable support order. By contrast, the Indiana court’s involvement in this
matter began when the respondent filed her custody petition in that state in
April of 2017. Despite the New Hampshire court’s prior involvement and
relative familiarity with the parties, its order includes no discussion of this
particular factor.

       The trial court’s order does not reflect a thorough review of the evidence
with regard to the factors it ultimately relied upon. Although the trial court
found that “virtually all the evidence” pertaining to the child’s care and
discipline is located in Indiana, “[a] court may not decline jurisdiction under
the UCCJEA merely because another forum of equal or greater convenience
exists.” Hogan, 131 A.3d at 729. The petitioner identified sources of evidence
in New Hampshire that could provide similar or potentially countervailing
information relevant to issues concerning the child’s care and discipline.
Nonetheless, the trial court’s order includes no discussion or analysis as to
how it reached its conclusion despite the petitioner’s identification of teachers,
coaches, doctors, and daycare providers in New Hampshire who could provide

2
  We acknowledge that the parties’ initial agreement that New Hampshire would assume and
maintain jurisdiction is not the controlling factor to be considered when conducting an
inconvenient forum analysis. See Horgan v. Romans, 851 N.E.2d 209, 212-13 (Ill. App. Ct.
2006) (finding that binding forum-selection agreement did not preclude judicial determination
of forum as inconvenient). Nonetheless, the nature of the agreement as a final order by
consent suggests that it should be considered a material factor deserving more consideration in
the trial court’s forum analysis than a passing reference. See Hogan, 131 A.3d at 726.




                                              7
evidence concerning this particular issue. Instead, it lists some of the factors
identified in the UCCJEA’s inconvenient forum analysis, without comment, and
disregards several factors specifically enumerated in the statute without
attempting to balance or analyze “all [of the] relevant factors” that influenced
its decision. RSA 458-A:18, II. The trial court’s failure to provide a meaningful
analysis of the factors that it relied upon in reaching its conclusion and its
failure to address each specific factor required by the UCCJEA was untenable
and unreasonable to the prejudice of the petitioner’s case, and, therefore, its
decision that Indiana is the more convenient forum constitutes an
unsustainable exercise of its discretion.

      We observe that the global inquiry set forth in RSA 458-A:18, II reflects
the underlying purposes of the UCCJEA, as a whole, to discourage forum
shopping by parents unhappy with custody orders, to inhibit the use of the
interstate system for continuing controversies over child custody matters, and
to avoid jurisdictional competition and re-litigation of custody decisions. See
Yaman, 167 N.H. at 87. The respondent’s filing of a competing custody petition
in Indiana, without informing that court of New Hampshire’s exclusive,
continuing jurisdiction, or of the petition pending in this state to modify the
original custody order, is precisely the type of conduct that the UCCJEA was
intended to deter. Because we conclude that the trial court’s decision
constitutes an unsustainable exercise of its discretion, we vacate the trial
court’s order and remand for further proceedings consistent with this opinion.

                                           Vacated and remanded.

     LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.




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