Vendouri v. Gaylord, et a l.

• Court: District Court, D. New Hampshire
• Decided: October 26, 2010
• Docket: 10-CV-277-SM
• Status: Published

Opinion

Vendouri v. Gaylord, et a l. 10-CV-277-SM 10/26/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Emmanouella Vendouri, Plaintiff

v. Civil No. 10-cv-277-SM Opinion No. 2 010 DNH 187 James F. Gaylord, Randal Zito, Linda Evans, Winnacunnet Cooperative School District, and Nick Birmbas, Defendants

O R D E R

Plaintiff's motion to amend judgment (document no. 16) is

granted, in part.

Plaintiff points out that in connection with earlier divorce

proceedings, her former husband. Defendant Nick Birmbas, was

awarded "primary residential responsibility" for their son, Y.B.

In its order dated August 27, 2010 (document no. 14), this court

correctly referred to that custodial authority as "primary

residential responsibility" (id. at 3), but also (and plaintiff

says incorrectly) as "sole physical custody" (id. at 8) .

Although it is not clear from the pleadings whether a meaningful

difference exists in other contexts (perhaps the former phrase

suggests plaintiff's right to contingent or partial physical

custody of Y.B., while the latter phrase does not), there is no meaningful difference in the context of resolving defendants'

motion to dismiss this case.

The parties have not fully briefed the matter, and a cursory

review of the pertinent state statute does not provide much

assistance in understanding what "primary residential

responsibility" entails in the context of a post-divorce custody

order. The statute, N.H. Rev. Stat. Ann. ("RSA") ch. 458:17, IV,

does not use the phrase "primary residential responsibility",

but, rather, anticipates that "physical custody" of a minor child

will be awarded to one parent, while the non-custodial parent

will be awarded "physical custodial rights" during times that

previously were referred to as "visitation." But, the non­

custodial parent "shall not be deemed to have a right of primary

physical custody under RSA 633:4 [declaring interference with

custody to be a crime]" (emphasis supplied).

The phrase "primary residential responsibility" apparently

was used in an earlier "Parenting Plan," to which plaintiff

agreed, and the state divorce court seems to have construed the

phrase as used in that plan: "The term means only what it

implies — that the boys live primarily with their father."

(Document no. 7-3, Order dated October 10, 2008, In the Matter of

Vendouri and Birmbas, No. 2004-M-285, County of Rockingham,

2 Portsmouth Family Division.) So, the phrase does not seem

related to which parent has been awarded "physical custody" of

the parties' minor son. But, then, plaintiff refers to herself

as the "noncustodial parent." (See document no. 12-1, Memorandum

of Law in Support of Objection to School Defendants' Motion to

Dismiss Complaint, at 1.)

Resolution of this case does not turn, however, on discrete

differences in custodial terminology. At bottom, child-custody

arrangements are matters within the jurisdiction of the state

courts, and challenges to custody orders must be pursued in state

court and follow the prescribed appellate routes. In this case,

the state court entered an original custody order that seems

(upon close reading of the October 10, 2008, modification order)

to have provided for some form of shared parental responsibility

with respect to the parties' minor children.

The state court also provided, more recently, in January of

this year, that:

[W]ithin 5 days, [Vendouri and Birmbas] shall both contact [Y.B.'s] high school to direct that the school call father and mother in the event of an emergency or, if the school will call only one, that the father list mother and mother list father as the first contact in the event either cannot be reached."

3 (Defs.' Mot. to Dismiss, Ex. A, at 2 (emphasis supplied).) That

is, the court having jurisdiction over custody issues

contemplated (and implicitly accepted) that the school may call

only one parent, and it prescribed an alternative in that event —

permitting one parent to be notified and the other to be listed

as the next to be contacted if the first could not be reached.

To the extent plaintiff, in this suit, claims a federal right

superior to the custody rights awarded by the state court, she is

mistaken. If she seeks to vindicate a right to primary or

mandatory notification when the parties' minor child is dismissed

from school, that relief must be obtained, if at all, from the

state court with jurisdiction over the custody of her minor

children.

That having been said, however, the terms used in this

court's order ought to be consistent, if only to avoid

unnecessary and unwarranted confusion. Accordingly, the court

will vacate the judgment entered on August 30, 2010, and modify

its written decision dismissing plaintiff's claims, dated August

27, 2010, by substituting the phrase "primary residential

responsibility" for "sole physical custody" on page 8. (In

addition, the court notes that the first sentence of the

paragraph under "Discussion" on page 5 should read, "The school

4 defendants move to dismiss the complaint." That correction will

also be made.)

The corrected decision will be substituted for the currently

docketed decision, and a new judgment entered on the corrected

decision.

SO ORDERED.

Smeven J/ McAuliffe Chief Judge

October 26, 2010

cc: Laurie A. Lacoste, Esq. Robert A. Shaines, Esq. Charles P. Bauer, Esq. Melissa A. Hewey, Esq. Jonathan S. Springer, Esq.