In re Giacomini , 151 N.H. 775 ( 2005 )

GALWAY, J.

The petitioner, B arbara M. Giacomini, appeals an order of the Superior Court (Houran, J.) denying interest on child support arrearages from the time each child support payment became due. We reverse and remand.

A thorough history of this divorce case can be found in In the Matter of Giacomini & Giacomini, 150 N.H. 498 (2004). Relevant to this appeal, the pertinent facts follow. The petitioner and the respondent, Patrick A. Giacomini, received a final decree of divorce in September 1988. Post-divorce proceedings were commenced in 2000, resulting in a judgment being entered against the respondent for unpaid child support. The petitioner appealed, arguing that the trial court erred by failing to award interest on her judgment for back child support. The respondent cross-appealed, arguing, among other things, that the trial court incorrectly calculated his child support arrearages. We determined that the trial court utilized the -wrong date in modifying the respondent’s child support obligations, and accordingly vacated the judgment and remanded the matter to the trial court. In the Matter of Giacomini & Giacomini, 150 N.H. at 504.

On remand, the trial court found the respondent to be in arrears on his child support through the date of the final hearing in the amount of $204,596, and established a payment schedule allowing the respondent to pay the arrearage over seven years. The court further denied the petitioner’s request that interest be added to the child support arrearages from the time each child support payment became due. This appeal followed.

The sole issue on appeal is whether the trial court erred in denying interest on the judgment against the respondent for his child support arrearages. We hold that it did.

In denying the petitioner’s request for interest, the trial court reasoned that RSA 336:1, II establishes a statutory rate of judgment interest, and that “[a]t no time ... has the Legislature added a provision providing the obligee with the right to collect interest on child support arrearages from the time the payment was due.” We review the trial court’s statutory interpretation de novo. Blackthorne Group v. Pines of Newmarket, 150 N.H. 804, 806 (2004).

We are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. Id. When a statute’s language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. Id.

We previously dealt with the issue of interest on child support arrearages in Griffin v. Avery, 120 N.H. 783 (1980). In Griffin, the plaintiff brought an action in superior court to recover the unpaid installments of child support from the defendant. Griffin, 120 N.H. at 785. We held that each installment of child support did not become a judgment when it fell due, because child support arrearages were not “judgments” within the meaning of RSA 508:5. Id. at 786. Accordingly, we found that the plaintiff was not automatically entitled to interest on arrearages. Id.

In 1988, the legislature enacted the child support guidelines set forth in RSA 458:17. See RSA 458:17 (2004). RSA 458:17, VII states: “All support payments ordered or administered by the court under this chapter shall be deemed judgments when due and payable. Such judgments shall be given full faith and credit by all jurisdictions of this state.” RSA 458:17, VII (2004). RSA 336:1, II states: “The annual simple rate of interest on judgments ... shall be a rate determined by the state treasurer----” RSA 336:1, II (Supp. 2004). The plain language of these two statutes, when read together, provides that child support payments that are due and payable are judgments, and as such, accrue interest.

We disagree, therefore, with the respondent’s contention that New Hampshire law does not give a child support obligee the right to collect judgment interest on child support arrearages. The respondent argues that we have held that a lienholder in a workers’ compensation claim is not entitled to interest because the statute does not provide for it. He argues, accordingly, that there should be no interest entitlement here, because the statute does not provide for it. See Lakin v. Daniel Marr & Son Co., 126 N.H. 730, 732-33 (1985). This analysis fails, however, because a lien is not a judgment; rather, a lien is a legal right or interest that a creditor has in another’s property, usually lasting until a debt or duty that it secures is satisfied. Black’s Law Dictionary 933 (7th ed. 1999).

Likewise, the respondent’s reliance on In the Matter of Nyhan and Nyhan, 147 N.H. 768 (2002), is misplaced. In Nyhan, we held that statutory interest is not applicable in the context of a division of marital property, and stated, in pertinent part: “This is wholly different from a post-judgment award of interest to a prevailing party in a civil proceeding, which is statutorily imposed [interest] without regard to the equities of the particular circumstances.” Nyhan, 147 N.H. at 772. Where Nyhan regards a marital property division, and this case involves a judgment, the two are readily distinguishable.

The dissent states that because RSA 161-C:23 makes the collection of interest by the commissioner of the department of health and human services discretionary, we should similarly construe RSA 458:17, VII as making an award of interest discretionary, since both statutes deal with child support. See RSA 161-C:23 (2002); RSA 458:17, VII. RSA 161-C:23 states: “Interest at the rate specified in RSA 336:1 on any support debt due and owing to the department... may be collected by the commissioner ----[S]aid interest may be waived by the commissioner, if said waiver would facilitate collection of the debt.” According to its plain language, the statute presumes that interest at a rate specified in the judgment statute will be paid on outstanding support payments. The statute simply allows the commissioner, who is a party, to waive that right, not the court.

The dissent also cites Nault v. N & L Development Co., 146 N.H. 35, 36 (2001), for the proposition that an award of post-judgment interest should be discretionary. In Nault, the trial court ruled that it did not have the authority to award post-judgment interest. Id. On appeal the sole issue before this court was whether the plaintiff could be granted post-judgment interest, not whether the award of post-judgment interest was mandatory. Id. We answered the narrow question before us by holding that the trial court may award post-judgment interest. Id. at 37-39. In answering that narrow question, we noted that legislative history suggested that RSA 524:1-a, which provides for interest in any action on a debt or account stated or where liquidated damages are sought, and RSA 524:1-b, which provides for interest in other civil proceedings, were intended to provide the same protection to prevailing parties. Id. at 39. We have previously held that a plaintiff who prevails in an action covered by RSA 524:1-a is entitled to post-judgment interest. Thus Nault is not inconsistent with our holding in this case — its holding was simply limited to the narrow issue before it, while its analysis fully supports our conclusion that child support payments that are deemed judgments accrue post-judgment interest.

In addition to concluding that an award of interest here is grounded in statute, we also believe that this decision is sound in its policy implications. Contrary to the respondent’s contention that there is a “punishment component” to “interest damages,” an award of interest on a judgment already rendered respects first and foremost the time value of money. The time value of money is based upon the premise that its present value will increase over time due to inflation or market forces. Cf. John A. Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 361-62 (2001). Where the petitioner did not have access to the payments when they became due, she did not have the opportunity to use or invest the money that was adjudged to be hers.

By determining that child support payments are judgments, the legislature has expressly authorized the imposition of statutory interest on such judgments that are in arrears. To the extent that the trial court failed to apply RSA 336:1, II, it erred as a matter of law.

Reversed and remanded.

Broderick, C.J., and Nadeau and Dalianis, JJ., concurred; Duggan, J., dissented.