Snyder v. Clifton , 139 N.H. 549 ( 1995 )

JOHNSON, J.

The plaintiff, Jean Hurley Snyder, appeals the Superior Court’s (Gray, J.) Approval of the recommendations of the Marital Master (Pamela D. Kelly, Esq.) Granting the defendant’s, Christopher B. Clifton, petition for modification of a previous decree. We affirm in part, reverse in part, vacate in part, and remand.

The plaintiff and the defendant were divorced in 1979. A November 30, 1990, decree awarded physical custody of the parties’ son, Christopher, to the defendant, and physical custody of their daughter, Sarah, to the plaintiff. The decree required neither party to pay child support. On October 26, 1992, Sarah left the plaintiffs home, Sarah was seventeen years old and a senior in high school. During the months following, the plaintiff refused to provide Sarah with any financial assistance except for health and dental insurance benefits.

In April 1993, the month of Sarah’s eighteenth birthday, the defendant petitioned the superior court to order the plaintiff to support Sarah financially until her high school graduation. He also asked for a modification of the November 1990 decree so that the plaintiff would be required to contribute toward the support of Christopher after Sarah graduated. The superior court granted the defendant’s petition and also awarded the defendant $500 in attorney’s fees. Sarah graduated from high school in January 1994.

On appeal, the plaintiff first argues that Sarah was an emancipated adult and, therefore, not entitled to child support. We hold that the superior court was empowered, in the exercise of its broad discretion, see Hillebrand v. Hillebrand, 130 N.H. 520, 522-23, 546 A.2d 1047, 1048 (1988), to order support for Sarah until her high school graduation if the evidence revealed that she was actively pursuing her diploma and was not emancipated. Cf. RSA 458:35-c (1992); Cox v. Pinkham, 80 N.H. 134, 114 A. 18, 19 (1921).

We find sufficient facts in the record to sustain a determination that Sarah was not yet emancipated. She began taking high school equivalency classes in January 1993, soon after leaving home, and at the time of the September 1993 hearing she had signed up for more. She worked only part-time, and she sought financial help from the plaintiff. In these circumstances, the plaintiffs refusal to provide Sarah with basic necessities also supports the court’s decision to order the plaintiff to pay Sarah directly. See McCrady v. Mahon, 119 N.H. 247, 248, 400 A.2d 1173, 1174 (1979).

The plaintiff next argues that the superior court abused its discretion in ordering her to contribute to the support of Christopher upon the termination of her financial obligation to Sarah. To obtain this modification of the parties’ original support obligations under the November 1990 decree, the defendant had the burden of proving a substantial change in circumstances such that the continuance of the decree would have been improper and unfair. Morrill v. Millard (Morrill), 132 N.H. 685, 688, 570 A.2d 387, 389 (1990). We reverse this part of the superior court’s order.

The defendant contends that Sarah’s departure from the plaintiffs home and the plaintiffs subsequent refusal to support her constituted the requisite substantial change in circumstances. We disagree. The November 1990 decree envisioned each parent caring for and supporting one child at home. Sarah’s departure from the plaintiffs home may well have caused the decree to become unfair with regard to Sarah’s care, such that an order directing the plaintiff to pay support to Sarah was appropriate when the plaintiff did not do so on her own. These events, however, provide no justification for the court’s order requiring the plaintiff to contribute to Christopher’s support following Sarah’s high school graduation. It was fully foreseeable at the time of the decree that Sarah would become emancipated before her younger brother. Cfi id. At 689, 570 A.2d at 389. Thus, the decree must be interpreted as requiring the plaintiff to support Sarah until her emancipation and the defendant to support Christopher until his. See RSA 458:35-c. The unfortunate circumstances involving Sarah had no bearing on the parties’ obligations to Christopher after Sarah’s emancipation and created no need to change them. To the contrary, changing them materially interfered with the design of the November 1990 decree.

The dissent contends that the trial court’s order should be affirmed because the November 1990 decree was based on each party caring for one minor child and did not extend beyond the facts as they then existed. We disagree with this analysis. The facts as they then existed included the children’s age difference, fourteen months. It could not have escaped the trial court’s notice that Sarah was older than Christopher. In Morrill, this court found it “fully foreseeable that the satisfaction of basic needs would become more expensive as the child matured and that the cost of living would increase.” Morrill, 132 N.H. at 689, 570 A.2d at 389. Accordingly, this court held that, “[a]bsent other factors, the expected growth of a child and normal increases in the cost of living are not special circumstances which justify the modification of a child support order.” Id. Sarah’s emancipation before her brother’s was just as expected, normal, and fully foreseeable as the increase in child care costs experienced by the custodial parent in Morrill. The only unanticipated aspect of Sarah’s emancipation was its temporary delay. We conclude that the trial court erred in ordering the plaintiff to contribute to Christopher’s support following Sarah’s high school graduation.

Finally, the plaintiff contests the superior court’s assessment of $500 in attorney’s fees and costs in favor of the defendant. ‘We will not overturn the trial judge’s decision to award attorney’s fees in a divorce proceeding absent a showing that the court abused its discretion.” Indorf v. Indorf, 132 N.H. 45, 47, 561 A.2d 241, 242 (1989). The court’s specific award of $500, however, was not based on any evidence of the services performed, the time involved, or the fee arrangement. In accordance with our holding in Gosselin v. Gosselin, 136 N.H. 350, 353-54, 616 A.2d 1287, 1289 (1992), we vacate the award and remand for a new hearing on this issue.

In view of Sarah’s high school graduation and our ruling as to Christopher’s support, the wage assignment issue is moot. Issues not addressed in this opinion have been examined, analyzed, and found meritless. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).

Affirmed in part; reversed in part; vacated in part; remanded.

Thayer, J., concurred in part had dissented in part; the others concurred.