In the Matter of Jeffrey Oligny and Paula Oligny , 169 N.H. 533 ( 2016 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
10th Circuit Court-Brentwood Family Division
No. 2015-0672
IN THE MATTER OF JEFFREY OLIGNY AND PAULA OLIGNY
Submitted: September 21, 2016
Opinion Issued: December 23, 2016
Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
and Matthew J. Delude on the brief), for the petitioner.
Fitzgerald-Boyd Law, PLLC, of Plaistow (Jacqueline C. Fitzgerald-Boyd on
the brief), for the respondent.
HICKS, J. The petitioner, Jeffrey Oligny, appeals an order recommended
by a Hearing Officer (Sheri E. Colligan, Esq.) and approved by the Circuit Court
(Weaver, J.) enforcing the college contribution provision contained in the
parties’ 2003 divorce decree, based upon a finding that the petitioner’s offer to
co-sign loans with his children did not meet his obligation under the decree to
equally contribute to their college expenses. We affirm.
The relevant facts follow. The parties were married in 1993. They
divorced in 2003, when their son and daughter were minors. Included in the
decree were several provisions that required the parents to share expenses
equally on behalf of their children. For example, the decree required the
parents to: “equally divide any camp, daycare and extracurricular activity fees”;
“equally be responsible for the [guardian ad litem] fees”; and “each be
responsible for 50% of any and all uninsured medical, dental . . . and other
health care expenses.” The decree also required the parties to “equally
contribute to any private and post[-]secondary educational expenses of their
children, after the child has exhausted all forms of scholarships, loans, grants,
etc.”
Before entering college, the children applied for scholarships through
their high schools and for financial aid through their colleges’ financial aid
process. Both children accepted the loans and grants for which they qualified.
At the time of the trial court’s order, the respondent, Paula Oligny, had
taken out $28,075.52 in parent loans for the daughter’s freshman year and
first half of her sophomore year, and $8,450.00 for the first half of the son’s
freshman year of college. Meanwhile, the petitioner had made no financial
contributions to the children’s college tuition.
In lieu of making payments, or taking out a loan on his own, the
petitioner offered to co-sign loans for his children for the balance due for their
college educations, apparently concluding that such offers fulfilled his
obligation under the college contribution provision of the divorce decree. In
response, the respondent moved that the trial court find the petitioner in
contempt for refusing to pay his share of the college expenses pursuant to the
provision.
In August 2015, a child support hearing was held to address, among
other things, the college contribution provision. At the hearing, the petitioner
asserted that, under his interpretation of the provision, the children were
required to first seek subsidized or unsubsidized federal loans on their own,
and then seek co-signed loans with a parent. Only after the children
exhausted the first two sources of loans, did the petitioner believe that the
parents were required to either contribute “direct[ly] through cash” or through
some “other type[ ] of borrowing.”
After the hearing, the hearing officer issued a recommended order that
was approved by the trial court. In the order, the court found the college
contribution provision to be “valid and enforceable.” See In the Matter of
Donovan & Donovan, 152 N.H. 55, 63-64 (2005) (holding that support orders
issued prior to February 2, 2004, may require parents to contribute to their
children’s college education). The trial court determined that the children had
“availed themselves of the available scholarships, grants and loans” and had
“taken out loans and grants consistent with what they qualified for under
federal financial aid guidelines.” Consequently, the court concluded that “the
balance due is the responsibility of the parents.”
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The court rejected the petitioner’s argument that his offer to co-sign
loans satisfied his obligation under the decree. The court stated that “[t]o
accept this argument would have the effect of abrogating his responsibility
under the [college contribution provision] and lead to an unjust result.”
Accordingly, the court determined that the petitioner is responsible for 50% of
the amount of loans, costs, interest, and fees that the respondent has incurred.
The petitioner filed a motion to reconsider, which the court denied. This appeal
followed.
On appeal, the sole issue for our review is whether the trial court
correctly interpreted the college contribution provision in the parties’ divorce
decree. As a threshold matter, the parties dispute the applicable standard of
review. According to the petitioner, we should review this matter de novo. By
contrast, the respondent claims that we should review this matter under our
unsustainable exercise of discretion standard. We agree with the petitioner.
The issue before us is a matter of the interpretation of a divorce decree. “The
interpretation of the language of a divorce decree, like the interpretation of
other written documents, is a question of law, reviewed by this court de novo.”
Estate of Frederick v. Frederick, 141 N.H. 530, 531 (1996).
In ascertaining the meaning of a divorce decree, we look to the plain
meaning of the language viewed in the context of the entire decree. Bonneville
v. Bonneville, 142 N.H. 435, 438 (1997). “Subsidiary clauses are construed so
as not to conflict with the primary purpose of the decree.” Id.
The college contribution provision provides that “the parties shall equally
contribute to any private and post[-]secondary educational expenses of their
children, after the child has exhausted all forms of scholarships, loans, grants,
etc.” By its plain language, the college contribution provision requires that the
children first “exhaust[ ] all forms of . . . loans,” and that the parents thereafter
“equally contribute” to the remaining educational expenses. This is a condition
precedent to the parents’ contribution. Therefore, the parental obligation is
only triggered once the child’s obligation is met.
The petitioner argues that the plain meaning of the phrase “all forms of
. . . loans” includes co-signed loans, and that, consequently, the children are
required to apply for co-signed loans before his direct contribution obligation
arises. Although we agree with the petitioner that a co-signed loan is a form of
loan, we disagree with his contention that it is a form of loan that the child can
exhaust. The parents and children have different responsibilities under the
college contribution provision, independent of each other. The provision
plainly requires that the child “exhaust[ ] all forms of . . . loans.” It does not
require, as the petitioner suggests, that the child and the parent exhaust
additional options available to them. Co-signed loans cannot be acquired by a
child alone; they require the involvement of another. To the extent that the
petitioner argues that our interpretation of the college contribution provision is
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limited by the arguments that the respondent raised in the trial court, he is
mistaken.
The petitioner next argues that the phrase “all forms of . . . loans” should
be interpreted as applying to a broader range of loans because the provision
includes the abbreviation “etc.” We agree with the petitioner that the use of the
abbreviation “etc.” signals that the college contribution provision’s enumerated
list of financial resources is not exclusive. Nonetheless, viewing the provision
as a whole, we disagree with the petitioner that co-signed loans fall within the
provision’s parameters.
The college contribution provision is one of several provisions in the
decree requiring the parents to share equally in their children’s expenses. For
example, the decree also requires the parties to “equally divide any camp,
daycare and extracurricular activity fees,” “equally be responsible for [guardian
ad litem] fees,” and “be responsible for 50% of any and all uninsured medical,
dental, . . . and other health care expenses.” Viewed in the context of the
decree as a whole, we conclude that the purpose of the college contribution
provision was to ensure that both parents share equally in their children’s
college expenses, not to shift the burden of additional debt onto the child.
Therefore, we agree with the trial court that co-signing is “inconsistent with the
language of the provision” because it “put[s] the full burden of payment on the
children while alleviating [the parents’] responsibility to contribute.”
The petitioner also asserts that the college contribution provision does
not require the parents to cover all remaining expenses after the children’s
obligations are fulfilled. We disagree. The college contribution provision states
that “the parties shall equally contribute to any . . . expenses.” The word
“shall” specifies that the parties’ equal contribution to the children’s college
expenses is mandatory. See McCarthy v. Wheeler, 152 N.H. 643, 645 (2005)
(“The use of the word ‘shall’ is generally regarded as a command; although not
controlling, it is significant as indicating the intent that the statute is
mandatory.”). The use of the term “any” suggests that the parents must
equally contribute to all remaining expenses.
The petitioner also argues that the trial court improperly relied upon a
“policy rationale” that the legislature rejected in 2004 when it repealed the
authority of trial courts to require divorcing parents to contribute to their
children’s college expenses. See In the Matter of Donovan & Donovan, 152
N.H. at 61. We need not address the merits of this argument because we have
reviewed the trial court’s interpretation de novo. See Estate of Frederick, 141
N.H. at 531.
Affirmed.
DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
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