Thursday, July 30, 2015

New Hampshire Restricts Use of GPS Devices to Track Individuals

Global Positioning Systems (“GPS”) are available in most electronic hand-held devices, such as cell phones, laptops, iPads and tablets. There are also devices specifically geared to tracking the location of individuals. These devices have been used in the last 10 years to track and locate a spouse whom is believed to be having an affair, or used to track where a parent is taking his or her children. It is common today for private investigators to use GPS or other electronic devices to obtain location information while in the course of their investigations.

Effective July 1, 2015, the use of electronic devices to obtain location information is now significantly restricted in the State of New Hampshire. The Legislature recently enacted a Statute which prohibits using “an electronic device on the person or property of another and obtain location information from such electronic device”. The Statute does not prohibit parents, foster parents, or legal guardians of a minor from using electronic devices to obtain location information for his or her child. The Statute appears to not prohibit use of an electronic device to obtain location information on a vehicle that is owned by the person who installs or places the electronic device on his/her own vehicle. However, there is an open question as to whether one of the joint owners of the vehicle may place such a device to track the location of the other joint owner. Similarly, there is an open question as to when there is a joint or family cell phone plan, whether the named account holder may track the location of an authorized user on the plan through a cell phone under the plan.

Before using an electronic device to track the location of a loved one to determine whether there is an affair or if she/he is engaging in other activities such as gambling, using drugs, or drinking alcohol, one should consult with an attorney to ensure compliance with the law. Violation of this Statute may result in criminal penalties in certain instances as well as civil liability for money damages and/or an injunction by the person who is injured as a result of the violation of this Statute.

If you have any questions regarding this Statute, please contact an attorney at Hamblett & Kerrigan to discuss.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Wednesday, July 29, 2015

Radio Program: July 28, 2015 "Real Estate Disputes"

July 28, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "Real Estate Disputes".

Tuesday, July 28, 2015

NEW HAMPSHIRE SUPREME COURT ISSUES IMPORTANT DECISION IN FAMILY COURT JURISDICTION FOLLOWING A RELOCATION

On July 15, 2015, the New Hampshire Supreme Court in the case of Sheys and Blackburn issued an important decision clarifying when a New Hampshire Court can continue to exercise jurisdiction in parenting cases following relocation of the children.

In Sheys, the parties were married in August 2005 and divorced in New Hampshire in 2009. At the time of the divorce, both parties lived in New Hampshire and had two minor children.

In 2013, the mother informed the father that she needed to relocate from New Hampshire to Massachusetts for a new job. After the mother moved to Massachusetts, the father filed a motion seeking primary residential responsibility of the children and to hold the mother in contempt because she moved from New Hampshire in violation of the parties’ Parenting Plan.

In April 2013, the trial court denied the father’s motion stating that although the mother did not give him a 60-day notice of her intended relocation, he was provided with at least 40 – 45 days’ notice and thus had ample time to request a hearing pursuant to the relocation statute. The Court also entered a new Parenting Plan which awarded the father parenting time in New Hampshire and in Massachusetts.

In December 2013, the father, once again, asked the Court to modify the parties’ Parenting Plan to hold the mother in contempt. The mother asked the trial court to dismiss the father’s action because as of December 2013 the children had lived in Massachusetts for over one year and there was a pending Massachusetts action to modify the New Hampshire Parenting Plan. The mother concluded that the New Hampshire court lost jurisdiction to address further parenting disputes.

The Supreme Court held otherwise and stated that a New Hampshire court which issued the initial custody order continues to be the only court that can modify that Parenting Plan so long as one parent resides in New Hampshire and the child has a significant connection with New Hampshire. While not previously defining the term significant connection, the Supreme Court held that significant connection means the child must have more than a “de minimis parenting time in New Hampshire.” Because the children in the Sheys’ case had frequent, routine parenting time in New Hampshire, New Hampshire remained the only court that had the jurisdiction to modify the parties’ Parenting Plan even though the children had established a new home state residence in Massachusetts.

What constitutes sufficient parenting time in New Hampshire versus de minimis or minimal parenting time in New Hampshire remains an open question. Therefore in relocation cases, the parties should consult with an attorney who can explain the pros and cons of litigating a case in New Hampshire versus another jurisdiction and, if there is a desire to litigate in New Hampshire, to develop sufficient facts that meet this new definition articulated by our Supreme Court.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Monday, July 27, 2015

Trial Court Cannot Conduct Its Own Research In Ascertaining Value of the Marital Home

In the case of Rokowski and Rokowski, (decided July 23, 2015) the New Hampshire Supreme Court cautioned that a Court cannot conduct its own research in ascertaining the value of marital property.

In the Rokowski case, one of the issues was the value of the marital home. Neither party at trial offered an appraisal which would show the fair market value of the property. On its own initiative, the trial court used online research to determine the fair market value of the property.

The New Hampshire Supreme Court categorically rejected this approach, stating “it is axiomatic that a trial court cannot go outside of the evidentiary record, except as to matters that are judicially noticed.” Internet research using the website “Zillow” which only provides an estimate of a property’s fair market value is not a fact that is readily established or subject to judicial notice, which are the only facts a court can consider at trial.

Therefore, in preparing a case for trial, parties must introduce their own evidence to establish the values of marital assets and cannot expect a trial court to do the work for them. If the asset is significant, like a home or a business, it may be well worth money to have a formal appraisal done so that an accurate value can be introduced at trial.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Tuesday, July 21, 2015

Radio Program: July 21, 2015 "Revocable Trusts"

July 21, 2015: Attorneys J. Daniel Marr and Joseph W. Kenny discuss "Revocable Trusts".