In the Matter of Holly Doherty and William Doherty , 168 N.H. 694 ( 2016 )

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 Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. 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: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
10th Circuit Court-Brentwood Family Division
No. 2014-0812
IN THE MATTER OF HOLLY DOHERTY AND WILLIAM DOHERTY
Argued: October 21, 2015
Opinion Issued: April 1, 2016
Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
on the brief and orally), for the petitioner.
Shaheen & Gordon, P.A., of Manchester (Jared O’Connor on the brief and
orally), for the respondent.
BASSETT, J. The 10th Circuit Court–Brentwood Family Division
(Luneau, M., approved by LeFrancois, J.) issued orders after the respondent,
William Doherty (Husband), filed a petition to modify his child support and
alimony obligations. Husband and the petitioner, Holly Doherty (Wife), both
appeal. For the reasons that follow, we affirm in part, reverse in part, vacate in
part, and remand.
The relevant facts are as follows. The parties divorced in January 2010.
They had two minor children at that time. They entered into a stipulation,
which was incorporated into the divorce decree that the trial court approved; in
the stipulation, they agreed upon, among other things, the amount of monthly
alimony and child support to be paid by Husband.
In July 2014, after one of the parties’ children had reached majority,
Husband filed a petition seeking a modification of his child support and
alimony obligations. Thereafter, Wife filed a motion for contempt, in which she
asserted that Husband had significant child support and alimony arrearages.
Following a hearing in August 2014, the trial court issued the orders that are
the subject of this appeal; in the orders, the trial court modified Husband’s
child support and alimony obligations and determined the amount of
arrearages that he owed.
I. Wife’s Appeal
Wife argues that the trial court erred by: (1) including foster care
payments that she received in her gross income for the purpose of modifying
Husband’s child support and alimony obligations; (2) terminating Husband’s
ongoing alimony obligation; and (3) concluding that it, a family division court,
lacked jurisdiction to enforce the parties’ agreement to share equally in certain
litigation costs. “We will uphold an order on a motion to modify a support
obligation absent an unsustainable exercise of discretion.” In the Matter of
Canaway & Canaway, 161 N.H. 286, 289 (2010). We sustain the findings and
rulings of the trial court unless they are lacking in evidentiary support or
tainted by error of law. Id.
A. Foster Care Payments
Turning to Wife’s first argument, we provide the following background.
In their stipulation, the parties agreed that, each month, Husband would pay
Wife approximately $3,400 in child support and approximately $1,600 in
alimony, for a monthly total of $5,000. They further agreed that alimony would
continue for 15 years, and that if the child support obligation was reduced,
alimony would be increased so as to maintain a total payment of $5,000 per
month.
When deciding whether to modify Husband’s child support and alimony
obligations, the trial court found that, at the time of the parties’ divorce, Wife’s
employment income was approximately $17,500 per month. However, at the
time of the hearing in 2014, the trial court found that her monthly income
comprised approximately $3,600 in employment income and approximately
$5,700 that she received “as a care provider for [two] disabled adults who
reside[d] in her household.”
After deciding to include the foster care payments in Wife’s current
income, the trial court concluded that it would be “fair and equitable” for
Husband to pay $968 per month in child support pursuant to the child
support guidelines. The trial court further determined that, because there had
been a “substantial and unforeseen change in circumstances,” a modification
of alimony was justified. Given the change in the parties’ incomes and
2
expenses, a reduction in Wife’s monthly mortgage payment, and Husband’s
inability to pay alimony in addition to child support and arrearage payments,
the trial court decided to terminate Husband’s ongoing alimony obligation.
Both of these modifications were made retroactive to July 14, 2014 — the date
that Wife filed an objection to Husband’s petition for modification, in which she
sought enforcement of Husband’s child support and alimony obligations. See
RSA 458-C:7, II (2004) (“Any child support modification shall not be effective
prior to the date that notice of the petition for modification has been given to
the [opposing party].”).
On appeal, Wife argues that, because the foster care payments that she
received were “use[d] to clothe, feed and shelter the disabled adults in her
care,” those funds should not have been included in her gross income for the
purposes of modifying Husband’s child support obligations. In making this
argument, she relies upon the definition of “gross income” under RSA 458-C:2,
IV (2004), the definition of income under the federal tax code, and cases from
other jurisdictions. Husband counters that the foster care payments were
properly included in Wife’s income because they constituted “gross income”
under RSA 458-C:2, IV. Additionally, he asserts that the federal tax code’s
treatment of these payments has no bearing on whether they constitute “gross
income” under New Hampshire law.
Resolving this issue requires us to engage in statutory interpretation,
and, therefore, our review is de novo. See In the Matter of Woolsey & Woolsey,
164 N.H. 301, 303 (2012). We are the final arbiter of the legislature’s intent as
expressed in the words of the statute considered as a whole. In the Matter of
Hampers & Hampers, 166 N.H. 422, 433 (2014). We interpret legislative intent
from the statute as written, and we will not consider what the legislature might
have said or add words that the legislature did not include. Id. We interpret
statutes in the context of the overall statutory scheme and not in isolation. Id.
“Gross income” is defined, in relevant part, as:
all income from any source, . . . including, but not limited to,
wages, salary, . . . and payments from other government programs
(except public assistance programs, including aid to families with
dependent children, aid to the permanently and totally disabled,
supplemental security income, food stamps, and general
assistance received from a county or town).
RSA 458-C:2, IV (emphases added). Wife asserts that the foster care payments
that she received are excluded from the definition of “gross income” under RSA
458-C:2, IV as “aid to the permanently and totally disabled.” We disagree.
3
RSA 167:6, VI (2014) states, in pertinent part, that:
[A] person shall be eligible for aid to the permanently and totally
disabled who is between the ages of 18 and 64 years of age
inclusive; is a resident of the state; and is disabled as defined in
the federal Social Security Act, Titles II and XVI and the
regulations adopted under such act, except that the minimum
required duration of the impairment shall be 48 months, unless
and until the department adopts a 12-month standard in
accordance with RSA 167:3-j. In determining disability, the
standards for “substantial gainful activity” as used in the Social
Security Act shall apply, including all work incentive provisions
including Impairment Related Work Expenses, Plans to Achieve
Self Support, and subsidies. . . . No person shall be eligible to
receive such aid while receiving old age assistance, aid to the
needy blind, or aid to families with dependent children.
See also RSA 167:3-j (2014) (concerning minimum duration of impairment for
aid to the permanently and totally disabled); Petition of Kilton, 156 N.H. 632,
634 (2007) (noting that the aid to the permanently and totally disabled program
“is one of various public assistance programs administered by” the New
Hampshire Department of Health and Human Services).
Here, Wife has not provided us with a record concerning the origins of
the foster care payments. Thus, on the record before us, there is no evidence
that the payments that she received were actually made under the aid to the
permanently and totally disabled program; additionally, there is no evidence
that the adults in her care met all of the statutory requirements to establish
eligibility for such aid. See RSA 167:6, VI; see also RSA 167:3-j. Accordingly,
we cannot conclude that those payments can be excluded from the definition of
“gross income” under RSA 458-C:2, IV as “aid to the permanently and totally
disabled.” See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (noting
that it is the burden of the appealing party to provide this court with a record
sufficient to decide issues on appeal). Given the state of the record, we also
cannot conclude that the payments derived from a “public assistance
program[],” constituted “general assistance received from a county or town,” or
would otherwise fall within one of the other exceptions to “gross income” under
RSA 458-C:2, IV. See id.
Accordingly, given the broad statutory definition of “gross income,” see In
the Matter of LaRocque & LaRocque, 164 N.H. 148, 153 (2012), and because
Wife has not demonstrated that the foster care payments are excluded from
that definition, we conclude that the trial court properly included those
payments in her “gross income.”
4
Nevertheless, Wife asserts that, because the foster care payments are
excluded from her gross income for tax purposes under the federal tax code,
they should also be excluded from her gross income under RSA 458-C:2, IV.
See 26 U.S.C. § 131(a) (2012) (“Gross income shall not include amounts
received by a foster care provider during the taxable year as qualified foster
care payments.”). We disagree. We have repeatedly stated that how the
“federal income taxation statutes define ‘income’ is of little relevance to our
interpretation of gross income under the child support guidelines.” Hampers,
166 N.H. at 434 (quotation omitted); see also, e.g., In the Matter of Maves &
Moore, 166 N.H. 564, 569 (2014) (same); In the Matter of State & Taylor, 153
N.H. 700, 704 (2006) (same). “This is so because the objectives of the child
support guidelines differ from the objectives of the federal income taxation
statutes.” Hampers, 166 N.H. at 435 (quotation omitted).
Moreover, we are not persuaded by Wife’s reliance upon cases from other
jurisdictions that have held that foster care payments received by a foster
parent of children should be excluded from the foster parent’s income. See,
e.g., In re Marriage of Dunkle, 194 P.3d 462, 466 (Colo. App. 2008) (concluding
that foster care payments were properly excluded from parent’s gross income
because, although received by parent, payments were children’s income);
Matter of Paternity of M.L.B., 633 N.E.2d 1028, 1029 (Ind. Ct. App. 1994)
(same); Bryant v. Bryant, 218 S.W.3d 565, 569 (Mo. Ct. App. 2007) (same).
Our task here is to interpret our child support statute and determine whether,
under that statute, the foster care payments in this case should be included in
Wife’s gross income; the treatment of foster care payments under the definition
of income in other states’ statutes does not control our analysis. See Maves &
Moore, 166 N.H. at 567-68.
Finally, to the extent that Wife attempts to assert a distinct and
additional argument that “gross income” for child support purposes should be
treated differently than income for alimony purposes, see RSA 458:19, IV
(2004) (listing factors for trial courts to consider when determining alimony,
including the “amount and sources of income” of each party), we decline to
address it because it was not adequately developed for appellate review, see In
the Matter of Thayer and Thayer, 146 N.H. 342, 347 (2001).
B. Reducing Gross Income
Wife next asserts that the trial court erred by failing to: (1) account for
the reduction in the payments that she received when one of the foster adults
in her care was removed from her home; and (2) deduct expenses that she
incurred relating to the care of the foster adults. We agree with Wife on both
points.
Before the trial court issued its order on the parties’ motions for
reconsideration, Wife filed a motion in which she asserted that one of the two
5
foster adults that she cared for no longer resided in her home, and, therefore,
the foster care payments that she received each month were reduced from
approximately $5,700 to $2,400. Although Husband did not dispute the
payment reduction, the trial court never addressed the reduced payments.
Under these circumstances, we conclude that Wife’s gross income should have
been adjusted to reflect the reduction in foster care payments. Cf. Hampers,
166 N.H. at 442 (“It is undisputed that child support should be determined on
the basis of present income.” (quotation omitted)). The trial court’s failure to
account for that reduction was, therefore, error.
Moreover, we agree with Wife that the trial court should have deducted
from her monthly foster care payments, and, thus, from her gross income, the
reasonable and necessary expenditures that she incurred in providing for the
foster adult remaining in her care. As we have explained, “gross income” under
RSA 458-C:2 means the total amount available to parents for paying child
support. See id. at 434; see also Woolsey, 164 N.H. at 306 (explaining that
“calculating a parent’s ability to pay child support necessitates determining an
actual ability to pay” and concluding that the term “self-employment income”
in RSA 458-C:2, IV “presupposes the deduction of legitimate business
expenses”). Thus, any portion of the foster care payments that were not
“available” to Wife should not have been included in her gross income.
Accordingly, we vacate the trial court’s determination of Wife’s monthly
gross income, and remand for the trial court to determine the extent of the
foster care payments that remained available to Wife, after deducting from the
payments the reasonable and necessary expenses that Wife actually incurred
and paid to care for the foster adult who remained in her home. See Woolsey,
164 N.H. at 307 (holding that, to be deductible for purposes of determining
“self-employment income” under RSA 458–C:2, IV, business expenses must be
“actually incurred and paid” and “reasonable and necessary” for producing
income (quotations omitted)). Because we are vacating the trial court’s
determination of Wife’s gross income figure, and because the trial court relied,
in part, upon that figure when deciding to modify Husband’s child support
obligation, we also remand for the trial court to recalculate that obligation. See
In the Matter of Albert & McRae, 155 N.H. 259, 265 (2007) (vacating trial
court’s determination of party’s gross income and remanding for recalculation
of child support obligation).
C. Modification of Alimony
Relying primarily upon our decision in Laflamme v. Laflamme, 144 N.H.
524 (1999), Wife next argues that the trial court erred by revisiting Husband’s
alimony obligation because there was not a “substantial or unforeseen change
in circumstances.” Wife claims that the “only substantial and unforeseen
change in circumstances between the parties” has been her decrease in
6
monthly income, which, she argues, is not sufficient to justify reexamining
Husband’s alimony obligation.
As we have stated, “[t]he party requesting an alimony modification must
show that a substantial change in circumstances has arisen since the initial
award, making the current alimony amount either improper or unfair.”
Canaway, 161 N.H. at 289 (quotation and brackets omitted). The trial court
“must inquire into the changed circumstances of both parties,” id. at 290, and
“must take into account all of the circumstances of the parties, including the
terms of the stipulation,” In the Matter of Arvenitis & Arvenitis, 152 N.H. 653,
655 (2005) (quotation omitted). “Changes to a party’s condition that are both
anticipated and foreseeable at the time of the decree cannot rise to the level of
a substantial change in circumstances sufficient to warrant modification of an
alimony award.” Canaway, 161 N.H. at 289 (quotation omitted).
In Laflamme, the trial court modified the defendant’s alimony obligation
based upon a finding that the defendant had sold assets and no longer had
income to pay alimony due to his retirement. Laflamme, 144 N.H. at 528. On
appeal, we reversed the trial court’s decision because the sale of assets and the
defendant’s retirement were both foreseeable and anticipated at the time of the
divorce decree. Id. at 528-29. Accordingly, although there may have been a
change in circumstances following the divorce decree, we concluded that those
changes did not “rise to the level of a substantial change in circumstances
sufficient to warrant modification of [the] alimony award.” Id.
Laflamme is readily distinguishable. First, as the trial court here
observed in its order, the parties’ incomes and expenses had changed
significantly since the divorce decree. See Canaway, 161 N.H. at 290
(observing that trial court must inquire into changed circumstances of both
parties). The trial court found that at the time of the divorce decree, Wife’s
monthly employment income was approximately $17,500, and her monthly
expenses totaled approximately $16,300; Husband’s monthly income was
approximately $7,700, and his monthly expenses were approximately $10,100.
By contrast, the trial court found that at the time of the final hearing on the
petition for modification, Wife’s monthly employment income was
approximately $3,600, and her monthly expenses were approximately $11,300;
Husband’s monthly income was approximately $7,300, and his expenses were
approximately $4,600.
Moreover, unlike Laflamme, in which the trial court found that both the
defendant’s retirement and the sale of his assets were anticipated by the
parties at the time of the divorce decree, see Laflamme, 144 N.H. at 528, here,
there is nothing in the record that suggests that the changes to the parties’
finances were anticipated or foreseeable. In fact, the trial court explicitly found
that “[t]he parties . . . could not have anticipated the changes to their incomes
and expenses at the time of the [f]inal [h]earing.”
7
Furthermore, the parties’ stipulation contemplated reconsideration of
Husband’s alimony obligation under certain circumstances. See Arvenitis, 152
N.H. at 655 (explaining that court must take into account all circumstances of
parties, including terms of stipulations). The parties agreed that, if Wife was
“successful in reducing the monthly mortgage payment” on the marital home,
“the parties [would] re-evaluate the support obligations considering the
reduction in the mortgage obligation.” Wife concedes that she modified the
terms of her mortgage, which had the effect of reducing her monthly mortgage
payments; according to the trial court, her monthly mortgage payments were
reduced from approximately $5,700 to $3,100.
Accordingly, in light of the trial court’s finding that there had been
unanticipated and unforeseeable significant changes in the parties’ finances,
the terms of the parties’ stipulation, and the reduction in Wife’s monthly
mortgage payments, we conclude that the trial court sustainably exercised its
discretion by revisiting Husband’s alimony obligation.
Nonetheless, Wife asserts that, even if the trial court had the discretion
to revisit and potentially modify the alimony award, it unsustainably exercised
that discretion by eliminating Husband’s alimony obligation. According to
Wife, the significant decrease in her income supported continuation — rather
than elimination — of alimony, and she also argues that the trial court
erroneously cited Husband’s inability to pay his child support and alimony
arrearages as a reason to terminate alimony.
We, however, need not address whether the trial court’s order eliminating
alimony is unsupportable because of either the dramatic decrease in Wife’s
income or the trial court’s reliance upon Husband’s inability to pay certain
arrearages. Because we are vacating for redetermination of Wife’s gross income
for child support purposes, and because the trial court relied, in part, upon
that gross income figure when deciding to eliminate Husband’s ongoing
alimony obligation, we also vacate the alimony award and remand for
redetermination of whether and to what extent ongoing alimony is warranted.
D. Jurisdiction of Trial Court
Wife next argues that the trial court, a family division court, erred by
concluding that it lacked jurisdiction to enforce a provision in the parties’
stipulation. The disputed provision states that the parties would be “equally
responsible for payment of any and all legal fees incurred and/or
judgments/settlements requiring them to compensate any party” in a separate
and ongoing boundary lawsuit. Although the trial court acknowledged the
parties’ agreement to divide such legal fees, it concluded that it could enforce
only “the part of the debt that was incurred as of the date of the Divorce
Decree,” and that no part of the debt existed at that time. The trial court
stated that “[a]ny post-Decree debt to the firm the parties hired in the
8
[boundary] lawsuit needs to be addressed in the context of the lawsuit, or in
another forum.”
Wife asserts that the trial court had jurisdiction to enforce the parties’
agreement to share the legal fees associated with the ongoing boundary lawsuit
because such litigation costs were part of the marital debt that it could
properly consider when distributing the marital estate. Husband counters that
the trial court “correctly held that its jurisdiction extends only as far as
dividing the assets and debts of the parties as of the date of divorce, but not
afterward,” because it has no “legal authority to assign post-divorce debt.” We
agree with Wife.
Our decision in Maldini v. Maldini, 168 N.H. 191 (2015), is instructive.
In Maldini, the parties entered into a “side agreement” during their divorce
mediation that allocated certain “yet-to-be-assessed tax liabilities.” Maldini,
168 N.H. at 193 (quotation omitted). On appeal, we concluded that the family
division had jurisdiction to interpret and enforce that side agreement. Id. at
194-96. We explained that “such unpaid tax liability falls within the broad
category of marital debt that the family division can properly consider when
distributing the marital estate.” Id. at 195. We further explained that “[g]iven
that the side agreement at issue concerned marital property, over which the
family division has exclusive jurisdiction, that court — and not the superior
court — remains the proper forum for addressing issues arising from the
agreement.” Id. at 196.
Like the side agreement in Maldini that addressed yet-to-be-assessed tax
liability, here, the parties’ agreement encompassed yet-to-be-assessed expenses
associated with the ongoing boundary suit. Thus, as in Maldini, we conclude
that these anticipated litigation expenses fall “within the broad category of
marital debt that the family division can properly consider when distributing
the marital estate.” Id. at 195. Because the trial court, a family division court,
concluded otherwise, we reverse this aspect of the trial court’s order and
remand.
II. Husband’s Cross-Appeal
A. Retroactive Alimony Modification
Husband first argues that the trial court erred by failing to retroactively
modify his alimony obligation to a date earlier than July 14, 2014. Although
we have vacated the trial court’s decision to eliminate his ongoing alimony
obligation, we will address this issue because it is likely to arise upon remand.
See Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 622 (2005).
In determining July 14 to be the effective date of the alimony
modification, the trial court explained that, because it did not receive a return
9
of service of Husband’s petition for modification of child support and alimony,
the earliest date to which it could retroactively modify the obligations was July
14 — the date that Wife filed an objection to the petition, thus evidencing
receipt of Husband’s petition. See RSA 458-C:7, II (“Any child support
modification shall not be effective prior to the date that notice of the petition for
modification has been given to the [opposing party].”). Husband concedes that,
pursuant to RSA 458-C:7, II, the trial court cannot retroactively modify his
child support obligation prior to July 14 — the date that notice of the petition
for modification was provided to Wife. However, he argues that, because
alimony differs from child support and each is governed by different statutes,
the same limitation does not apply to alimony modifications. Thus, he argues,
the trial court had the ability to modify his alimony to a date prior to July 14.
We disagree.
Our decision in In the Matter of Birmingham & Birmingham, 154 N.H. 51
(2006), is controlling. In Birmingham, the respondent argued that the trial
court erroneously denied his request to modify child support and alimony
retroactive to a date before the petitioner received notice of the respondent’s
modification petition. Birmingham, 154 N.H. at 57. We, however, concluded
that the trial court did not err. Id. at 57-58. We explained that, after our
review of case law and statutes concerning child support and alimony, “the
trial court correctly ruled that, pursuant to RSA 458-C:7, II, it had no
discretion to modify any child support order beyond the date of notice to the
petitioner.” Id. at 58 (quotations and brackets omitted). Although we observed
that “[t]here is no analogous statute that expressly limits the trial court’s
authority to grant a retroactive modification of alimony beyond the date of
notice to the adverse party,” we determined that “our case law and our
interpretation of the statutes governing the modification of alimony lead us to
conclude that the trial court’s authority to grant a retroactive modification of
alimony beyond the date of notice to the adverse party is similarly limited.” Id.
(emphasis added).
Thus, based upon Birmingham, we conclude that the trial court in this
case had no authority to grant a retroactive modification of alimony to a date
earlier than the date Wife received notice of Husband’s petition for
modification. See id. Nonetheless, because we used the phrase “similarly
limited” in Birmingham instead of “identically” limited, Husband contends that
notice in the context of retroactive alimony modification is “broader” than
notice in the context of retroactive child support modification. Therefore,
Husband asserts, the trial court had the authority to grant a retroactive
modification of alimony to the date of the parties’ stipulation in 2010, which,
he claims, provided Wife with actual notice that his alimony obligation would
change once the monthly mortgage payments were reduced. We disagree.
Regardless of any ambiguity in the phrase “similarly limited,” our
decision in Birmingham effectively imported into retroactive alimony
10
modifications the same notice requirements that are applicable to retroactive
child support modifications. See id. We also observe that, although in
Birmingham we invited the legislature to clarify the statutes governing the trial
court’s authority to grant a retroactive modification of alimony, id., the
legislature has not amended those statutes, see RSA 458:14, :32 (2004). Thus,
we assume that our holding in Birmingham conforms to legislative intent. See
Ichiban Japanese Steakhouse v. Rocheleau, 167 N.H. 138, 143 (2014).
Accordingly, we conclude that the trial court properly ruled that it could not
retroactively modify Husband’s alimony obligation to a date prior to the date
that Wife received notice of Husband’s petition for modification — July 14,
2014.
B. Child Support Arrearages
Husband next argues that the evidence presented to the trial court did
not support the trial court’s determination of the amount of his child support
arrearages. At the hearing on the petition to modify, each party submitted
records purporting to demonstrate the amount of child support that Husband
had paid and still owed between the date of the parties’ stipulation — in which
Husband agreed to pay approximately $3,400 per month in child support —
and July 2014. According to Wife’s records, Husband’s child support
arrearages amounted to approximately $73,100. Husband’s documents,
however, purported to demonstrate an arrearage of approximately $47,400.
After reviewing the documents provided by the parties, the trial court
concluded that Wife’s documents were “credible,” and that Husband owed
approximately $73,100 in child support arrearages.
On appeal, Husband argues that the trial court’s decision is not
supported by the documentary evidence presented at the hearing. According to
Husband, when the trial court adopted Wife’s arrearage amount, it erroneously
“ignored” the allegedly more accurate records that he submitted, which
included bank deposit receipts. In response, Wife contends that we should
affirm the trial court’s determination of child support arrearages because the
trial court found the records that she submitted to be “credible.” She argues
that our task is not to reweigh the evidence presented to the trial court, and
she asserts that, because the trial court’s finding is supported by the
documentary evidence that she submitted, we should defer to the trial court’s
finding. See In re Guardianship of E.L., 154 N.H. 292, 296 (2006) (explaining
that “we do not reweigh the evidence to determine whether we would have
ruled differently,” and recognizing that the trier of fact “is in the best position to
measure the persuasiveness and credibility of evidence” and that it “lies within
the province of the trial court to accept or reject, in whole or in part, whatever
evidence was presented” (quotations omitted)).
As a threshold matter, the parties dispute the applicable standard of
review. According to Wife, we should review this matter under our
11
unsustainable exercise of discretion standard. By contrast, Husband claims
that, because the trial court decided this issue solely based upon documentary
evidence, we should give less deference to the trial court’s determination. See
Lawrence v. Philip Morris USA, 164 N.H. 93, 96-97 (2012) (concluding that,
because trial court “relied only upon a paper record and all of the documents
from below are available for our perusal, we give less than ordinary deference
to the trial court’s factual findings” (quotation and ellipsis omitted)). We
assume, without deciding, that Husband is correct that a less deferential
standard applies.
Nonetheless, even under a less deferential standard, we cannot conclude
that the trial court erred by ruling that Husband owes approximately $73,100
in child support arrearages. First, many of the bank deposit receipts that
Husband has submitted on appeal — which he claims provide “incontrovertible
proof” that his child support arrearages total approximately $47,400 — are
illegible. See Bean, 151 N.H. at 250 (explaining that appealing party has
burden of providing this court with a record sufficient to decide issues on
appeal). Moreover, none of the bank deposit receipts that are legible indicates
on its face that the money was actually paid for child support. Accordingly,
under these circumstances, we disagree with Husband that the trial court was
bound to use his records “as the sole credible source of information for
purposes of determining the child support arrearage” and that the trial court
erred by relying, instead, upon Wife’s records. We, therefore, affirm the trial
court’s determination that Husband’s child support arrearage amounted to
approximately $73,100.
Affirmed in part; reversed in
part; vacated in part; and
remanded.
DALIANIS, C.J., and CONBOY, J., concurred.
12