In the Matter of Cassandra Napolitano and Aaron Napolitano, 2019-0636

Background

Parents divorced with a final parenting plan (April 2016); father had regular parenting time; child born 2013.
Mother’s counsel hand-delivered to father and mailed to court a pleading titled “PETITION TO MODIFY PARENTING PLAN – RELOCATION” (Aug. 13, 2019) seeking to move the child to Virginia because her spouse was on active duty in Norfolk.
The pleading included a certificate stating that “this Motion” had been mailed to the father; the court received the filing Aug. 15. The father was not served with a Notice to Respondent per Fam. Div. R. 2.4(B).
The trial court treated the filing as a motion, applied the ten-day objection rule for motions (Fam. Div. R. 1.26(E)), found no written objection had been filed within ten days, and granted the relocation by order dated Aug. 27, 2019.
The father, who says he was told by the clerk to await service before responding, filed motions for reconsideration and for late entry of his objection; the trial court denied those motions. The father appealed.
The New Hampshire Supreme Court vacated the relocation order and remanded for a hearing under RSA 461-A:12, finding there was good cause to allow the father to file a late objection because the pleading was designated a petition and he was not served.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Whether the trial court abused its discretion by denying father’s motions for reconsideration and for late entry of objection	Father argued the paper was styled a “petition,” he was not served with a Notice to Respondent, clerk told him to wait for service, and thus good cause existed to allow a late objection	Mother argued the filing should be treated as a motion (hence a 10‑day objection period); her cover letter signaled the filing status and no fee was due; father had notice and could have requested a hearing under RSA 461‑A:12	Court held trial court unsustainably exercised discretion; as a matter of law good cause existed to allow late filing and vacated the relocation order, remanding for an RSA 461‑A:12 hearing
Whether the pleading’s label (“petition”) required response and service procedures under Fam. Div. R. 2.3–2.5 rather than motion rules (Fam. Div. R. 1.26)	Father argued the pleading was expressly labeled a petition and thus he reasonably awaited formal service and the Notice to Respondent before filing an appearance/response	Mother argued the substance and circumstance (ongoing child support matter) justified treating it as a motion and applying the 10‑day objection rule	Court held the mother’s counsel’s designation as a “petition” was legally significant; father reasonably could expect Rule 2.4/2.5 service and response procedures; mother’s label controlled over her later reference to it as a motion
Whether father had an independent duty to request a hearing under RSA 461‑A:12 upon receiving notice of the move	Father contended he was not required to trigger the hearing and that mother bore the burden to obtain court approval before relocating	Mother contended father could have requested a hearing when he learned of the intended relocation	Court held the statutory obligation to obtain a court order to relocate rests with the relocating parent; father was not required to initiate the hearing to preserve his rights

Key Cases Cited

In the Matter of St. Pierre & Thatcher, 172 N.H. 209 (2019) (describing burden allocation under RSA 461‑A:12)
Anna H. Cardone Revocable Trust v. Cardone, 160 N.H. 521 (2010) (courts should prioritize justice over procedural technicalities)
In the Matter of Geraghty & Geraghty, 169 N.H. 404 (2016) (standards for reviewing discretionary family-division rulings)
R. J. Berke & Co. v. J. P. Griffin, Inc., 118 N.H. 449 (1978) (review of trial court discretion principles)
State v. Lambert, 147 N.H. 295 (2001) (definition of unsustainable exercise of discretion)
In the Matter of Birmingham & Birmingham, 154 N.H. 51 (2006) (self-represented parties are bound by rules of procedure)
Paras v. Portsmouth, 115 N.H. 63 (1975) (parties are generally bound by their attorneys’ actions)