NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building, Concord, New Hampshire 03301, of any errors in order that corrections may be made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is:

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 95-404

SCOTT CHANDLER

v.

MELODY MCGALL BISHOP

November 14, 1997

Scott Chandler, pro se, on the brief; and Carolyn R. Wah, of Patterson, New York, orally, and J. Barry Mulhern, of

Londonderry, for the plaintiff.

Melody McGall Bishop, pro se, filed no brief.

HORTON, J. In this child custody dispute, the plaintiff, Scott Chandler, appeals the Superior Court's (Gray, J.) approval of the recommendation of the Marital Master (Pamela D. Kelly, Esq.) denying his motions for contempt and for injunctive relief. He contends that the master: (1) deprived him of the opportunity to question witnesses and adequately present his case; (2) failed to make proper findings; and (3) refused to consider evidence that the parties had modified a court-approved visitation agreement. We affirm in part, vacate in part, and remand.

The plaintiff and the defendant, Melody McGall Bishop, are the unmarried parents of a six-year-old child, Spencer. The defendant has sole legal custody of the child. In May 1993, the parties reached a stipulation on physical custody and visitation that was approved by the superior court. Their agreement provided that the defendant "shall have primary physical custody of the parties' minor child," and "that plaintiff is granted specific periods of physical custody (aka visitation) of the minor child." The agreement specified supervised visitations and set forth a detailed schedule of visitation times for the summer of 1993. The parties stipulated that after August 1993 they would meet with the guardian ad litem to establish a schedule of visitations on alternating Thursdays from 8:30 a.m. to 4:30 p.m. and alternating Saturdays from 8:30 a.m. until 12:30 p.m. The agreement provided that the court would hold a hearing in November 1993 to consider the expansion or contraction of the visitation schedule. The court approved the parties' original stipulation on May 19, 1993.

In June 1993, the parties jointly moved to amend the May 1993 stipulation to increase the plaintiff's visitation on alternating Saturdays from 8:00 a.m. to 4:00 p.m. The court approved the request for amendment on July 6, 1993.

During the next few months, the parties orally agreed to modify the visitation schedule. The plaintiff was allowed unsupervised visitation on alternate Fridays from approximately 8:00 a.m. to 5:00 p.m. and alternate weekends from Friday afternoon to Sunday afternoon. The parties did not seek court approval of this revised arrangement.

While this modified schedule was in place, the plaintiff, with the defendant's knowledge, began to take the child to Jehovah's Witness religious meetings. In December 1994, after the parties had abided by the modified visitation arrangement for approximately fourteen months, a dispute arose as to the child's attendance at the meetings. As a result the defendant abrogated the modified weekend visitation schedule. The plaintiff responded by filing motions for contempt and injunctive relief.

At an April 1995 hearing before the marital master, the plaintiff sought to maintain visitation as it had been since the parties mutually modified the court-approved agreement. He contended that the defendant was not entitled to alter the modified visitation schedule and thereby deprive him of his opportunity to take his son to religious meetings.

The defendant claimed she was disturbed by her son's statements and behavior following weekend visitations with the plaintiff. According to the defendant, the child told her that "Halloween was the Devil's holiday," "God said Christmas trees are bad," "Santa Claus isn't real, Santa Claus are daddies," and "[t]he Easter bunny isn't real." The defendant also testified that after visits with the plaintiff, the child was belligerent, more difficult to discipline, exhibited poor hygiene, and had lowered self-esteem. According to the defendant, the child's preschool director had noted a marked improvement in the child's attitude after the child ceased overnight weekend visitation with the plaintiff. The defendant asked that visitation be limited as provided in the court-approved stipulation and amendment.

The master recommended that the plaintiff's motions be denied. Finding no outstanding court order beyond that entered on the parties' original stipulation and the amendment thereto, the master ruled that the parties must abide by that order. The master also stated that the defendant's role as Spencer's sole legal custodian gave her the exclusive right to make decisions concerning the child's religious upbringing. The master found that because the plaintiff undermined the defendant's parental authority by denigrating and disapproving of her holiday celebrations, the defendant had "not responded in an unreasonable or unlawful manner in deciding that the child should no longer attend religious functions or meetings with [the plaintiff]." The plaintiff appealed to this court after his motions for the master to recuse herself and for reconsideration were denied.

The plaintiff first argues that the master erred by refusing to extend the time of the hearing and by denying him the opportunity to question the defendant, the only other witness, about statements she had previously made under oath. He also asserts bias on the part of the master in conducting the hearing and rendering her decision. The plaintiff contends he was thus deprived of his due process protections under the State and Federal Constitutions. Because the State Constitution is at least as protective as its federal counterpart, see Berube v. Belhumeur, 139 N.H. 562, 567, 663 A.2d 598, 601 (1995), we will not conduct a separate federal analysis but will cite federal law only as an analytical aid. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

Procedural due process requires that parties whose rights are affected have an opportunity to be heard. See Berube, 139 N.H. at 567, 663 A.2d at 601; N.H. CONST. pt. I, art. 15. The right to be heard in custody and visitation cases encompasses "the right to call and cross-examine witnesses, to be informed of all adverse evidence, and to challenge such evidence." Provencal v. Provencal, 122 N.H. 793, 797, 451 A.2d 374, 377 (1982), overruled in part by Ross v. Gadwah, 131 N.H. 391, 395, 554 A.2d 1284, 1285 (1988); see Ross, 131 N.H. at 395, 554 A.2d at 1286. The trial court, however, has wide discretion in matters involving custody and visitation. Lester v. Lester, 111 N.H. 117, 119, 277 A.2d 503, 504 (1971). This includes discretion in the conduct of the proceedings. Cf. Appeal of Morin, 140 N.H. 515, 518, 669 A.2d 207, 209 (1995). Absent an abuse of discretion, we will not overturn the master's decision. See Chasan v. Mintz, 119 N.H. 865, 867, 409 A.2d 787, 788 (1979).

Our review indicates that the master's actions did not violate due process. The plaintiff received notice of the time limitations on the hearing in advance and was offered an opportunity to reschedule the hearing if more time was necessary. Moreover, the master provided an opportunity for the plaintiff to testify at the hearing, to bring evidence to the court's attention, and to respond to the defendant's comments.

During the hearing the plaintiff requested that the defendant be called to the stand to answer questions regarding statements she made at a prior hearing. The master asked the plaintiff which statements he considered significant or objectionable and noted the relevant portions of the transcript. Although the master did not thereafter permit the defendant to be questioned regarding those statements, this decision was reasonably based on the master's determination of the relevance of the testimony to the issues at hand. We cannot say the master erred in concluding that the testimony already received and the transcript of the prior hearing provided sufficient information with which to evaluate the plaintiff's claims.

The plaintiff also alleges bias on the part of the master. He alleges that her disdain for his religion colored her conduct during the hearing and in rendering her decision. During the proceedings, the master remarked to the plaintiff that he should attend a parenting class after telling his son that he believes Halloween is the Devil's holiday. In her recommendation, the master criticized "the way in which Plaintiff has chosen to tell the child the `truth' about his own religious beliefs."

Despite these religious references, our review of the record discloses no bias on the part of the master. The master's comments were not a reaction to the expression or content of the plaintiff's religious beliefs, but rather to the manner in which he chose to impart these beliefs to his child. See Sanborn v. Sanborn, 123 N.H. 740, 748, 465 A.2d 888, 893 (1983) (religious beliefs may be considered only as they relate to "the concerns and temporal welfare" of the child); cf. Provencal, 122 N.H. at 798-99, 451 A.2d at 378 (concluding that religious references related to "the concerns and temporal welfare" of the child were proper subjects of guardian ad litem's report).

The plaintiff next argues that the master failed to make findings consistent with the facts presented and the law of this State. It is not our role to decide visitation matters, "but rather to decide whether the determination made by the trial court can be upheld." Chasan, 119 N.H. at 868, 409 A.2d at 788 (quotation omitted). We will not overturn the master's recommendation approved by the court unless "the record clearly demonstrates an abuse of discretion," id. at 867, 409 A.2d at 788, or the decree contains an error of law, see Sanborn, 123 N.H. at 741, 465 A.2d at 893-94.

The master's decree states that the parties must "follow the terms of outstanding court orders respecting visitation." The plaintiff does not dispute that there was an outstanding stipulation approved by the court and that the parties' revised visitation arrangement differed from that schedule. He contends, however, that the May 1993 stipulation permitted the parties to modify the visitation provisions in the original agreement and that the defendant should be enjoined from altering the revised schedule to which she agreed.

Child custody and visitation orders are not contractual in nature despite the fact that they may incorporate a contractual arrangement between the parties. See Dupuis v. Click, 135 N.H. 333, 337-38, 604 A.2d 576, 579 (1992). In visitation matters, the court has continuing jurisdiction to modify arrangements in the best interests of the child. See McSherry v. McSherry, 135 N.H. 451, 453, 606 A.2d 311, 313 (1992); Preston v. Mercieri, 133 N.H. 36, 46, 573 A.2d 128, 134 (1990). This authority does not preclude the parties from mutually agreeing to informal modifications of court-approved orders. Such revisions are not binding on the court, however, see 24 Am. Jur. 2d Divorce and Separation