In the Matter of Crystal Ndyaija and Joshua Ndyaija ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit-Nashua Family Division
Nos. 2018-0086
2018-0153
2018-0398
IN THE MATTER OF CRYSTAL NDYAIJA AND JOSHUA NDYAIJA
Submitted: December 16, 2019
Opinion Issued: March 11, 2020
Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard on the brief),
for the petitioner.
Joshua Ndyaija, self-represented party, by brief.
DONOVAN, J. In this consolidated appeal, the respondent, Joshua
Ndyaija, appeals various orders issued by the Circuit Court (Quigley and
Introcaso, JJ.) following the parties’ divorce. The respondent argues that the
trial court erred by: (1) dismissing his motion for contempt against the
petitioner, Crystal Ndyaija; (2) denying his motion regarding parental
interference; (3) denying his motion to restrain; (4) modifying his child support
obligations for the parties’ minor child; (5) denying his motion to modify the
parties’ parenting plan and permanent stipulation, vacating a provision of the
parenting plan, and ordering him to pay the petitioner’s attorney’s fees; and (6)
granting the petitioner’s motion to approve daycare enrollment for the child.
The respondent also argues that the trial court lacked jurisdiction to make an
initial child custody determination under RSA chapter 458-A (2018), and
lacked jurisdiction over the divorce action under RSA 458:5 and :6 (2018). We
affirm in part, vacate in part, and remand.
I. Factual and Procedural Background
The record supports the following facts. The parties married in July
2012 and lived together in Massachusetts until July 2014, when the petitioner
moved to New Hampshire with their child. In May 2015, the petitioner filed a
petition for legal separation in the New Hampshire Circuit Court. In her
petition, she notified the trial court of an August 2014 court order on a
domestic violence-related matter from a Massachusetts district court, but did
not provide additional details. In August 2015, the petitioner filed a petition for
divorce in the New Hampshire Circuit Court. In that petition, she notified the
trial court of her involvement in two court cases relating to custody of the child:
(1) a July 2014 matter in a Massachusetts district court that resulted in the
issuance of a restraining order which awarded custody of the child to the
petitioner but which expired in July 2015; and (2) an action for custody and
visitation in a Massachusetts court filed by the respondent, which, the
petitioner indicated, was still pending at the time of her divorce petition. The
trial court issued a temporary child custody order, which provided that the
child live primarily with her mother and allowed the respondent to have
supervised visits with the child for two days a week.
In May 2016, a Marital Master (DalPra, M.) recommended, and the Trial
Court (Quigley, J.) approved, a final divorce decree, parenting plan, partial
permanent stipulation, and uniform support order. The parenting plan
required the child to reside primarily with the petitioner and provided the
respondent with parenting time during weekends, vacations, and certain
holidays. It further required, under paragraph G of the parenting plan, that
the parties meet “as often as necessary for the benefit of the child” to review
and adjust the parenting plan, and noted that the parties “agree to meet in
March, 2017 to revise this plan before [the child] goes to school.” Paragraph H
of the parenting plan set forth dispute resolution procedures in the event a
disagreement between the parties arose, stating:
Parties shall attempt to resolve any disagreement first through
email exchanges. If there has been no resolution within fourteen
(14) days, the parties shall seek the assistance of an individual(s),
[and] each party shall have the option of bringing one person to a
meeting to try to resolve the issue. That meeting shall occur within
fourteen (14) days of notice by one party that an email resolution
has not been reached. In the event the meeting does not resolve
the issue the parties may seek the assistance of the Court.
The uniform support order required the respondent to pay $50 per
month in child support and provided that the order shall be reviewed upon
either party obtaining new employment. The permanent stipulation required
both parties to obtain life insurance for the benefit of the child if available
through their employers.
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In August 2016, the respondent filed a contempt motion alleging, inter
alia, that the petitioner failed to adhere to the dispute resolution procedures set
forth in paragraph H of the parenting plan. His motion set forth several
unresolved disputes and alleged that the petitioner failed to respond to emails
or meet in person within 14 days as required by paragraph H. The petitioner
objected to the motion. The Trial Court (Introcaso, J.) approved an order
recommended by a Marital Master (DalPra, M.) dismissing the motion. The
respondent appealed to this court and we vacated and remanded the decision
because the trial court’s order addressed the petitioner’s compliance with
paragraph G, but not paragraph H.
Shortly thereafter, in September 2017, the respondent filed two motions
with the trial court — a motion “to restrain” and a motion regarding “parental
interference” — in which he requested the court to order the petitioner to stop
and retract “slanderous allegations” against him and “restrain[] her from doing
any further harm to [his] livelihood.” Following a hearing, the Marital Master
(Dalpra, M.) recommended, and the Trial Court (Quigley, J.) approved, an order
dismissing the contempt motion and denying his motion to restrain and his
motion regarding parental interference.
Thereafter, the respondent and the petitioner filed separate motions to
modify the respondent’s child support obligation after the respondent obtained
new employment. The respondent sought termination or a reduction of the
child support obligation, while the petitioner sought a modification that took
into account the respondent’s new source of income. Following a hearing, the
Trial Court (Introcaso, J.) issued a new uniform support order that increased
the respondent’s child support obligation to $274 per week. The respondent
requested the court to deviate from the child support guidelines, but the trial
court found “no justification for an adjustment.” See RSA 458-C:5 (Supp.
2019). The order also required the respondent to pay an arrearage that had
accrued since September 18, 2017, the date he filed his motion to modify his
child support obligation, which the trial court determined to be $5,149.38. The
order required the respondent to pay the weekly child support and arrearage by
immediate income assignment to the Division of Child Support Services
(DCSS). The respondent filed a motion for reconsideration, which the court
denied.
Subsequently, the respondent moved to modify the parenting plan and
permanent stipulation. He requested that the court modify the parenting plan
to, in part, award him additional parenting time with the child, “hold [the]
Petitioner accountable for dishonoring” the requirement in paragraph G to meet
to review and adjust the parenting plan, and remove the life insurance
requirement in the permanent stipulation because it violated his religious
beliefs. The petitioner objected, and thereafter filed a motion to allow her to
enroll the child in private daycare and kindergarten in New Hampshire, to be
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paid for solely by her. Following a hearing on these matters, the Trial Court
(Introcaso, J.) denied the respondent’s requests, sua sponte vacated paragraph
G of the parenting plan, and, finding the respondent’s motion to be frivolous,
awarded attorney’s fees to the petitioner. The trial court also granted the
petitioner’s request allowing her to enroll the child in private daycare and
kindergarten. The respondent filed a motion for reconsideration, which the
court denied.
The respondent filed three separate appeals of these orders, which we
consolidated, setting forth numerous challenges to the merits of the trial
court’s decisions. The respondent also makes several arguments challenging,
for the first time on appeal, the trial court’s jurisdiction to rule on these issues,
including the court’s jurisdiction over the child custody proceeding under the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See RSA
ch. 458-A.
Pursuant to the UCCJEA, a court in New Hampshire “may not exercise
its jurisdiction” over a child custody case “if, at the time of the commencement
of the proceeding,” a child custody proceeding “has been commenced in a court
of another state having jurisdiction substantially in conformity with this
chapter, unless the proceeding has been terminated or is stayed by the court of
the other state because a court of this state is a more convenient forum.” RSA
458-A:17, I. Because the petitioner’s divorce petition alerted the trial court to a
pending child custody proceeding commenced in a Massachusetts court, and
nothing in the appellate record showed that Massachusetts had terminated the
proceeding or ruled that New Hampshire was a more appropriate forum, we
remanded the issue of jurisdiction under the UCCJEA to the trial court to
make findings and rulings as to whether it had jurisdiction when the petitioner
commenced the child custody proceeding in New Hampshire. See RSA 458-
A:17, II. We noted that, even though the respondent raises this issue for the
first time on appeal, the UCCJEA governs the court’s subject matter
jurisdiction to make or modify a child custody determination, and, therefore,
jurisdiction under the UCCJEA may be challenged at any time during the
proceeding. See In re Guardianship of K.B., 172 N.H. ___, ___ (decided October
25, 2019) (slip op. at 2). We retained jurisdiction of the remaining issues on
appeal.
On remand, the trial court issued an order finding that the
Massachusetts court dismissed the child custody proceeding on October 21,
2015, and, therefore, New Hampshire “had subject matter jurisdiction.” The
respondent filed a motion to reconsider. His motion did not dispute the trial
court’s factual finding on the dismissal of the Massachusetts action. Instead,
he disputed the trial court’s conclusion that New Hampshire had jurisdiction,
citing the active status of the Massachusetts restraining order at the time the
petitioner filed her original petition for legal separation in New Hampshire. The
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trial court denied his motion. We now address all issues on appeal, beginning
with jurisdiction.
II. Analysis
A. Jurisdiction
To resolve the respondent’s jurisdictional challenges, we must interpret
the relevant statutes. See In the Matter of Gray & Gray, 160 N.H. 62, 65
(2010). When examining the language of a statute, we ascribe the plain and
ordinary meaning to the words used. In the Matter of Yaman & Yaman, 167
N.H. 82, 86 (2014). When a statute’s language is plain and unambiguous, we
need not look beyond it for further indications of legislative intent. Gray, 160
N.H. at 65. Courts can neither ignore the plain language of the legislation nor
add words that the lawmakers did not see fit to include. Id. We interpret
statutes not in isolation, but in the context of the overall statutory scheme. Id.
We first address the respondent’s arguments regarding the court’s
jurisdiction over the child custody proceeding under the UCCJEA. Under RSA
458-A:12, I, “a court of this state has jurisdiction to make an initial child
custody determination” if “[t]his state is the home state of the child on the date
of the commencement of the proceeding.” A child’s “home state” is “the state in
which a child lived with a parent . . . for at least 6 consecutive months
immediately before the commencement of a child-custody proceeding.” RSA
458-A:1, VII. The child custody proceeding here commenced in May 2015
when the petitioner filed her petition for legal separation. See RSA 458-A:1, IV
(defining “child-custody proceeding” as “a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an issue,” including a
proceeding for divorce or separation), RSA 458-A:1, V (defining
“commencement” as the “filing of the first pleading in a proceeding”). At that
time, the petitioner and the child had been living in New Hampshire for over six
months. Therefore, New Hampshire was the child’s home state on the date the
petitioner commenced the proceeding. See RSA 458-A:1, VII.
Nevertheless, the respondent contends that the trial court lacked
jurisdiction because other child custody proceedings had commenced in
Massachusetts at the time the petitioner filed the petition for legal separation
in New Hampshire. See RSA 458-A:17, I. Specifically, he contends that, at the
time the petitioner filed her petition for legal separation: (1) the Massachusetts
restraining order against the respondent was still active, see RSA 458-A:1, IV
(defining “child-custody proceeding” to include a proceeding for “protection
from domestic violence”); and (2) the respondent’s Massachusetts action for
custody and visitation was pending.
The petitioner’s initial petition for legal separation notified the trial court
of a Massachusetts case relating to domestic violence but provided no further
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information describing the nature of the case. The petitioner’s subsequent
divorce petition provided additional details about the Massachusetts case —
specifically, that the case involved a restraining order issued in July 2014,
which awarded custody of the child to the petitioner. The divorce petition also
notes, however, that the restraining order expired one year after it was issued,
which the respondent does not dispute. Thus, the Massachusetts child
custody determination under the restraining order had terminated prior to any
child custody determination made by the trial court here, and, therefore, did
not deprive the trial court of jurisdiction to make such a determination under
the UCCJEA. See RSA 458-A:17, I (permitting a court of this state to exercise
jurisdiction where the proceeding in another state “has been terminated or is
stayed by the court of the other state”).
The petitioner’s divorce petition also notified the trial court of the
pending Massachusetts action for custody and visitation filed by the
respondent in March 2015. She explained that a motion to dismiss the case
had “been drafted and will be marked up for Hearing in September.” Although
the Massachusetts court dismissed the action on October 21, 2015, the
dismissal occurred after the trial court here made its initial child custody
determination in August.
To avoid jurisdictional conflicts in child custody proceedings, RSA 458-
A:17, II requires courts of this state to “examine the court documents and other
information supplied by the parties.” Then, “[i]f the court determines that a
child-custody proceeding has been commenced in a court in another state
having jurisdiction substantially in accordance with this chapter,” the trial
court “shall stay its proceedings and communicate with the court of the other
state.” Id. If the court of the other state “does not determine that the court of
this state is a more appropriate forum,” RSA 458-A:17, II requires a New
Hampshire court to dismiss the proceeding.
Because the petitioner’s divorce pleading alerted the trial court to a
simultaneous child custody proceeding in Massachusetts, which constitutes a
“state having jurisdiction substantially in accordance” with New Hampshire’s
UCCJEA, RSA 458-A:17, II; compare RSA 458-A:12 with Mass. Gen. Laws ch.
209B, § 2 (2016), the trial court was required to stay the New Hampshire
proceeding and communicate with the Massachusetts court. See RSA 458-
A:17, II. Nevertheless, the Massachusetts proceeding was dismissed in October
2015, during the pendency of the divorce proceeding in New Hampshire and
prior to the court’s approval of the final divorce decree in May 2016. Thus, at
the time the trial court rendered its child custody determination as part of the
final divorce decree, no simultaneous child custody proceeding was pending in
another state. Moreover, the petitioner and her child have continued to reside
in New Hampshire since they moved here in July 2014. See RSA 458-A:12, I.
Accordingly, while we urge New Hampshire courts to follow the directives set
forth in RSA 458-A:17 when alerted to a child custody proceeding in another
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state, we conclude that the trial court had jurisdiction to render its child
custody determination following the dismissal of the Massachusetts action.
The respondent, however, further argues that New Hampshire does not
have jurisdiction over the child custody proceeding because the petitioner
sought to conceal their child from him by moving to New Hampshire after
obtaining the restraining order in Massachusetts. To the extent the respondent
argues that RSA 458-A:19, I, required the trial court to decline jurisdiction due
to the petitioner’s “unjustifiable conduct,” we disagree. RSA 458-A:19, I,
requires a court to “decline to exercise its jurisdiction” in a child custody
proceeding where “a person seeking to invoke its jurisdiction has engaged in
unjustifiable conduct.” However, the statute permits the court to exercise
jurisdiction where “[t]he parents and all persons acting as parents have
acquiesced in the exercise of jurisdiction.” RSA 458-A:19, I(a).
We acknowledge that the petitioner’s filing of the petition for separation
in New Hampshire shortly after the respondent filed his Massachusetts
complaint for child custody and visitation undermines one of the purposes of
the UCCJEA: to “‘[d]iscourage the use of the interstate system for continuing
controversies over child custody.’” Yaman, 167 N.H. at 87 (quoting Unif. Child
Custody Jurisdiction and Enforcement Act § 101, cmt., 9-1A U.L.A. 657
(1999)). However, even assuming that the petitioner’s actions were
“unjustifiable,” both parents acquiesced to the trial court’s exercise of
jurisdiction. See RSA 458-A:19, I. The parenting plan was approved by the
court in May 2016 and, based upon the record before us, the respondent
participated in the litigation before the parenting plan was issued without ever
challenging the court’s jurisdiction. Furthermore, nothing in the record reflects
that the respondent challenged the court’s jurisdiction prior to this appeal.
Accordingly, the trial court was not required to decline jurisdiction under RSA
458-A:19, I.
The respondent next argues that the trial court lacked jurisdiction over
the parties to the divorce matter, under RSA 458:5, and the cause of the
divorce, under RSA 458:6. Pursuant to RSA 458:5, a court’s jurisdiction over
parties to a divorce case exists only where: (1) “both parties were domiciled in
the state when the action was commenced”; (2) the plaintiff was domiciled in
the state and “the defendant was personally served with process within the
state”; or (3) “the plaintiff was domiciled in the state for one year next preceding
the time when the action was commenced.” Pursuant to RSA 458:6,
“[j]urisdiction over the cause for divorce exists when it wholly arose or accrued
while the plaintiff was domiciled in the state, and not otherwise.”
As the petitioner notes, the respondent raises these arguments for the
first time on appeal. The petitioner argues that, because the respondent
appeared in the trial court proceedings without raising any objection to the
trial court’s jurisdiction, he agreed to the court’s exercise of jurisdiction in this
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case and should not be permitted to raise these arguments for the first time on
appeal. However, “[t]he court’s authority in matters of marriage and divorce is
strictly statutory.” Daine v. Daine, 157 N.H. 426, 427 (2008) (quotation
omitted). Therefore, “the court has only such power in that field as is granted
by statute.” Id. Here, RSA 458:4 (2018) expressly limits “[t]he jurisdiction of
the court to grant divorce . . . to cases where there is jurisdiction over the
parties and of the alleged cause as defined in RSA 458:5 and 458:6.”
Accordingly, the court’s jurisdiction to grant a divorce is limited to the
circumstances described in RSA 458:5 and :6. Therefore, the respondent’s
participation in the proceedings below without objection cannot confer
jurisdiction if the statutory requirements are not met. See Porter v. Porter, 112
N.H. 403, 405 (1972) (holding that the “domicile requirements” under RSA
458:5 “cannot be conferred by consent”); see also Daine, 157 N.H. at 428
(“Consent cannot confer jurisdiction where none exists.” (quotation omitted)).
Nevertheless, we conclude that, based upon the record before us, the
trial court had jurisdiction over the parties and the cause of the divorce. As to
jurisdiction over the parties to the divorce, the record demonstrates that the
petitioner has been domiciled in New Hampshire since July 2014, over one year
before she commenced the divorce action in August 2015. Therefore, the
domicile requirement under RSA 458:5 was met. See RSA 458:5, III.
As to the court’s jurisdiction over the cause of the divorce, the
respondent identifies a series of incidents that occurred in Massachusetts in or
around July 2014 as the “origin and point of separation” — an alleged inquiry
by the petitioner to a Massachusetts police department regarding child
custody, the Massachusetts restraining order, and a neglect investigation with
the Massachusetts Department of Family and Children. However, he makes no
representation about the cause for divorce or where it occurred. According to
the trial court’s final divorce decree and the parties’ partial permanent
stipulation, approved by the trial court in May 2016, the cause of the parties’
divorce was “[i]rreconcilable differences which have caused the irremediable
breakdown of the marriage.”
We have held that “causes involving a specific event such as a conviction
of a crime [or] adultery” which have occurred while the petitioner is domiciled
elsewhere may not meet the jurisdictional requirement under RSA 458:6.
Woodruff v. Woodruff, 114 N.H. 365, 367 (1974). However, “other causes that
are of a continuing nature . . . which began while [the petitioner] was domiciled
elsewhere” may meet the requirement “if continued for the required time after
the [petitioner] becomes domiciled here.” Id. Irreconcilable differences may be
one such cause, because “[i]f the differences are not reconciled they constitute
a continuing condition in the marriage relationship which may persist after one
of the parties becomes domiciled here.” Id.; see RSA 458:7-a (2018).
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In this case, the petitioner left the respondent in July 2014 and lived in
New Hampshire for over one year before she commenced the divorce action.
Accordingly, the differences between the parties were not reconciled for at least
the period between July 2014 and August 2015. Thus, cause of the divorce
continued after the petitioner became domiciled in New Hampshire. See
Woodruff, 114 N.H. at 367 (explaining that RSA 458:7-a “does not require that
the irreconcilable differences accrue over any specified period of time before
they may form the basis for a cause for divorce”); RSA 458:7-a. Although “[n]o
divorce can be decreed under this cause . . . unless the irreconcilable
differences have caused an irremediable breakdown of the marriage,” Woodruff,
114 N.H. at 367 (citing RSA 458:7-a (Supp. 1973)), we have held that, as a
matter of law, the breakdown of the marriage cannot occur prior to the court’s
judicial determination that “the possibilities of reconciliation have been
explored and have failed.” Id. at 368; see RSA 458:7-a, :7-b (2018). Therefore,
the breakdown of the marriage could not have occurred until after the
petitioner filed her divorce petition, because that was the earliest that the court
could find the marriage to be beyond reconciliation. Woodruff, 114 N.H. at
368. Accordingly, we conclude that the trial court had jurisdiction over the
cause for divorce under RSA 458:6.
B. Order on Contempt, Restraint, and Parental Interference Motions
1. Contempt
Next, the respondent argues that the trial court unsustainably exercised
its discretion by denying his motion to hold the petitioner in contempt for
failure to comply with paragraph H in the parenting plan, which requires the
parties to communicate through email and, if necessary, in person, to resolve
parenting disputes within specific time limits. Contempt power is discretionary
and the proper inquiry is not whether we would have found the petitioner in
contempt, but whether the trial court unsustainably exercised its discretion in
refusing to do so. In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500
(2004).
The respondent’s contempt motion described several disagreements
between the parties and alleged that the petitioner failed to “honor[] the 14-day
period for email resolution [and] the 14-day period for a meeting” in paragraph
H to resolve those disputes. Based upon the testimony of the parties at the
contempt hearing and a review of the parties’ emails and pleadings, the trial
court found that “it is clear that Petitioner attempted to answer Respondent’s
inquiries” and was “not in contempt of any of the parenting time provisions.”
The trial court further found that the petitioner “did not act willfully or with
malice by not agreeing to meet” with the respondent, and “was under the
reasonable belief that there were no issues that needed resolution.” In
rendering this decision, the trial court did not consider some of the disputes
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asserted by the respondent because they predated or fell outside of the scope of
the parenting plan.
A review of the record provides support for these findings. We conclude
that the trial court was not compelled to find the petitioner in contempt and
did not unsustainably exercise its discretion by refusing to do so. See id. at
501.
2. Restraint and Parental Interference
The respondent next argues that the trial court unsustainably exercised
its discretion by denying his motion to restrain and his motion regarding
parental interference. We review a trial court’s rulings on the denial of these
motions under an unsustainable exercise of discretion standard. See In the
Matter of Peirano & Larsen, 155 N.H. 738, 752 (2007) (reviewing the trial
court’s continuance of a restraining order for an unsustainable exercise of
discretion).
In his motion to restrain, the respondent alleged that the petitioner
provided “malicious and untruthful information about [him]” to law
enforcement, DCSS, and their child’s doctor, including a “very recent[]” false
accusation to DCSS that he failed to pay child support in May 2016. His
motion regarding parental interference alleges that the petitioner “continues to
interfere with [his] rights as a father” by telling the child’s doctor that the
respondent was trying to kidnap their child. In her objections to these
motions, the petitioner denied the allegations and stated that the respondent
was attempting to “revisit issues that have long-since been concluded” and
“have no relevance on issues between the parties today.” At the hearing, the
respondent discussed a timeline of the allegations, contending that the events
set forth in his motions occurred between July 2014 and November 2016,
when the petitioner made the complaint to DCSS.
The trial court denied both motions upon finding that “[a]ll the alleged
incidents occurred two years prior to the parties’ agreed Parenting Plan.” The
respondent points to the allegation relating to DCSS to argue that this finding
was erroneous. However, the parties’ pleadings and the respondent’s proffers
at the contempt hearing demonstrate that all allegations, including the
allegation relating to DCSS, occurred at least 10 months before the respondent
filed his motions. We conclude that these events are too distant in time to
support motions of this nature. Accordingly, we uphold the trial court’s denial
of these motions.1
1 The respondent also argues on appeal that the motion to restrain is supported by RSA 458:16,
I(a)-(b) (2018). However, because he did not raise this argument to the trial court, we decline to
review it. See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018).
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C. Amended Uniform Support Order
The respondent argues that the trial court erred in several ways in its
calculation of the amended uniform support order issued in February 2018.
The trial court’s amended uniform support order is governed by New
Hampshire’s child support guidelines, which are codified in RSA chapter 458-C
(2018 & Supp. 2019) and establish a uniform system to determine the amount
of child support awards. In the Matter of Silva & Silva, 171 N.H. 1, 4 (2018);
see RSA 458-C:4, I (2018) (applying the guidelines to “all child support cases,”
including orders modifying an existing support order). The purpose of RSA
chapter 458-C is not only to ensure uniformity in determining the amount of
child support, but also to ensure that both the custodial and non-custodial
parents share in the support responsibility for their children, according to the
relative percentage of each parent’s income. Silva, 171 N.H. at 4.
Trial courts have broad discretion in reviewing and modifying child
support orders. In the Matter of Hampers & Hampers, 166 N.H. 422, 442
(2014). We will not disturb the trial court’s rulings regarding child support
absent an unsustainable exercise of discretion or an error of law. Silva, 171
N.H. at 4.
The respondent first argues that the trial court erred because it based
the amended support order of $274 per week on income figures proposed by
the petitioner in her child support guidelines worksheet. See RSA 458-C:3-a
(2018). He argues that these figures were inaccurate because: (1) the
petitioner’s calculation of the respondent’s gross monthly income was not
supported by the paystubs he provided; (2) the petitioner’s monthly income
provided in her child support guidelines worksheet failed to include her gross
monthly income from her second, part-time employment; and (3) the petitioner
failed to provide in her financial affidavit documentation of her income required
by Family Division Rule 1.25-A(B)(1)(c).
Child support should be determined on the basis of present income.
Hampers, 166 N.H. at 442. When calculating a parent’s child support
obligation, the court must first determine each parent’s present income. In the
Matter of Feddersen & Cannon, 149 N.H. 194, 196 (2003). It is up to the trial
court to decide which income figures should be used based upon the facts
presented at the hearing. Id.As for the respondent’s monthly gross income, he contends that the trial
court accepted the petitioner’s calculation of his income, which was based
upon a weekly income of $1,800, despite the inconsistent income shown on his
paystubs and his representation that he does not receive steady pay due to the
contractual nature of his employment. The respondent provided four weekly
paystubs with his financial affidavit, with one paystub showing earnings of
$1,440 for 32 hours of work, and three subsequent paystubs showing weekly
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earnings of $1,800 for 40 hours per week. Nevertheless, the respondent listed
$7,200 as his gross monthly income in his financial affidavit and child support
guidelines worksheet, and informed the court at the hearing that he reached
this figure by multiplying $1,800 by four weeks. Thus, the respondent himself
represented that his income is $1,800 per week. Although the trial court
determined that the petitioner provided the accurate calculation of his monthly
gross income — she multiplied the weekly income of $1,800 by 4.33 weeks in a
month, rather than four weeks — the respondent does not challenge this
determination. Accordingly, the trial court did not commit an unsustainable
exercise of discretion in accepting the petitioner’s calculation of the
respondent’s monthly gross income based upon a weekly income of $1,800.
However, as for the petitioner’s monthly income, we agree with the
respondent that the petitioner’s child support guidelines worksheet, upon
which the trial court relied in calculating the respondent’s amended child
support obligation, omitted income from one of her jobs. The petitioner
disclosed monthly wages from two jobs in her financial affidavit and provided a
paystub reflecting this additional employment. However, her child support
guidelines worksheet included her monthly income from only one job.
Accordingly, the trial court committed an unsustainable exercise of discretion
when it based its calculation of the support order on the gross monthly income
set forth in the petitioner’s guidelines worksheet. Therefore, we vacate the
support order and remand to the trial court to recalculate the respondent’s
child support obligation.
The respondent further argues that the petitioner failed to provide the
requisite documentation under Rule 1.25-A(B)(1)(c) to support her asserted
income set forth in her financial affidavit and child support guidelines
worksheet. Rule 1.25-A(B)(1)(c) requires the parties, as part of the mandatory
initial self-disclosure, to provide the “four (4) most recent pay stubs (or
equivalent documentation) from each current employer.” Fam. Div. R. 1.25-
A(B)(1)(c). Rule 2.16, which governs financial affidavits, further requires each
party to “file with the court and with the other party a . . . financial affidavit
which contains the information requested on the family division financial
affidavit.” Fam. Div. R. 2.16. The petitioner’s notarized financial affidavit
certifies that she has “complied with Rule 1.25-A regarding mandatory
disclosure.” The record before us, however, indicates that she provided only
one pay stub for each job.
While Rule 1.2 permits the court, “[a]s good cause appears and as justice
may require,” to “waive the application of any rule, except where prohibited by
law,” Fam. Div. R. 1.2, the record does not demonstrate that the trial court
found good cause to waive the paystub requirement under Rule 1.25-A(B)(1)(c).
Accordingly, we remand this issue to the trial court to require the petitioner to
either submit additional pay stubs or show good cause as to why this rule
should be waived.
12
The respondent next contends that the trial court committed an
unsustainable exercise of discretion when it failed to consider his request to
deviate from the child support guidelines. He argues that the court failed to
consider his financial obligations that he raised during the hearing — in
particular, the amount of rent he pays — in determining his child support
obligation.
There is a rebuttable presumption that a child support award calculated
under the guidelines is the correct amount of child support. See Silva, 171
N.H. at 4; RSA 458-C:4, II (2018). The presumption may be overcome, and the
trial court may deviate from the guidelines, when a party shows by a
preponderance of the evidence that the application of the guidelines would be
“unjust or inappropriate,” RSA 458-C:4, II, because of “[s]pecial
circumstances,” RSA 458-C:5, I; Silva, 171 N.H. at 4.
RSA 458-C:5, I, includes a list of special circumstances that, if raised by
a party or the court, the court must consider in making an adjustment that
deviates from the child support guidelines. Silva, 171 N.H. at 4. Although this
list is non-exhaustive, we have interpreted “special circumstances” as including
only circumstances that are “economic in nature and relate to the impact of a
parent’s financial condition upon his or her ability to meet a child’s needs.” Id.
(quotation omitted). Additionally, the trial court must consider any special
circumstances “in light of the best interests of the child.” RSA 458-C:5, I.
Here, the record demonstrates that the trial court considered, and
rejected, the respondent’s basis for his requested adjustment in determining
his child support obligation. The trial court explained at the hearing that
expenses such as rent, bills, and loan repayments are common expenses that
are not “extraordinary, unusual expenses” to the respondent, and did not
provide a basis to “treat [the respondent] differently than . . . any other parent.”
In reaching this determination, the trial court did not unsustainably
exercise its discretion. Although living expenses are “economic in nature,” the
respondent has not demonstrated that they “relate to the impact of [his]
financial condition upon his . . . ability to meet [his] child’s needs.” Silva, 171
N.H. at 4. The respondent did not argue or otherwise offer an explanation to
the trial court that his expenses prohibit him from meeting the child’s needs, or
that he could not make necessary changes to reduce his expenses. Further,
there is nothing in the record to indicate that the respondent’s expenses affect
his financial situation such that the amount suggested by the guidelines is
confiscatory. See RSA 458-C:5, I(j). Finally, to the extent that the respondent
argues that the trial court was required to compare his expenses with the
petitioner’s when calculating his child support obligation, the respondent
identifies no provision in RSA chapter 458-C that required the trial court to do
so. See RSA 458-C:3 (2018), :5.
13
Next, the respondent argues that the trial court erred when it ordered
him to pay an arrearage. The respondent asserts that, because he remained in
compliance with the court’s uniform support order in effect at the time, it
would be “unfair to hold [him] responsible” for paying an amount that had not
yet been ordered by the court. RSA 458-C:7 (2018) allows a party to apply “at
any time for a modification” of a child support order “based on substantial
change of circumstances.” RSA 458-C:7, I(a). The statute also allows the trial
court to modify a child support obligation from “the date that notice of the
petition for modification has been given to the [opposing party].” RSA 458-C:7,
II. Thus, the trial court had the discretion to apply its child support
modification retroactively. Given that the respondent himself first notified the
trial court and the petitioner of the change in circumstances that led to the
trial court’s child support modification — his new employment — it was neither
unfair, nor an unsustainable exercise of discretion, for the trial court to order
that modification to apply retroactively.
The respondent further contends that the trial court erred in its
calculation of the arrearage amount. Specifically, he argues that the trial court
failed to deduct the $50 monthly child support payments that, according to the
respondent, he paid during the accrual period — September 18, 2017, to
February 12, 2018.
The record demonstrates that the trial court deducted from the total
arrearage the amount of attorney’s fees the petitioner owed to the respondent
from prior litigation. The record is silent, however, as to whether the trial court
considered any child support payments the respondent made during the
accrual period. Although the respondent raised this issue to the trial court in a
motion for reconsideration, the trial court did not modify or clarify its
calculation. Further, we note that, although the petitioner does not address
this argument on appeal, she acknowledged in her objection to his motion for
reconsideration that the respondent “continued to pay $50.00 per month as
child support” after he obtained full employment. Because the record does not
demonstrate whether the trial court considered any child support payments
that the respondent paid during the accrual period in calculating the arrearage
amount, we vacate the judgment and remand this issue to the trial court.
Finally, the respondent argues that the trial court erred by ordering that
he pay child support directly to DCSS by immediate income assignment. He
contends that, because his previous payments were timely, the court should
have found good cause not to require immediate income assignment. RSA 458-
B:2, I(c) (2018) provides that immediate income assignment “shall be
suspended by the court” when the court “finds that there is good cause not to
require immediate income assignment.” However, a finding of “good cause” to
suspend immediate income assignment must be based on “[p]roof of the
obligor’s timely payment” of previously ordered support and a “written
14
determination and explanation . . . as to why implementing immediate income
assignment would not be in the best interests of the child.” RSA 458-B:2,
I(c)(1)-(2). There is nothing in the record demonstrating that the trial court
made such a determination. To the extent that the respondent seeks to
challenge the trial court’s requirement that he pay child support directly to
DCSS, he fails to develop this argument for our review. See Halifax-American
Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (“In the realm of
appellate review, a mere laundry list of complaints regarding adverse rulings by
the trial court, without developed legal argument, is insufficient to warrant
judicial review.” (quotation and brackets omitted)). Accordingly, we conclude
that the trial court did not unsustainably exercise its discretion in ordering the
respondent to pay his child support obligation to DCSS by an immediate
income assignment.
D. Order Modifying Parenting Plan and Permanent Stipulation
The respondent next makes several arguments challenging the trial
court’s order on his motion to modify the parenting plan and permanent
stipulation, in which the trial court: (1) denied his request to remove, on
religious grounds, the requirement to obtain life insurance for the benefit of the
child; (2) vacated, sua sponte, paragraph G of the parenting plan, thereby
implicitly denying his request to hold the petitioner “accountable” for refusing
to meet with him pursuant to that paragraph; (3) denied his requests to modify
the parenting plan to give him more parenting time and two consecutive, rather
than non-consecutive, weeks of vacation with the child; and (4) awarded
attorney’s fees to the petitioner. We address each argument in turn.
The respondent first contends that the trial court committed reversible
error because it attributed the respondent’s requested prayers of relief to the
petitioner in its order. However, there is nothing in the record to suggest that
this discrepancy was prejudicial to the respondent. See Giles v. Giles, 136
N.H. 540, 545 (1992) (“For an error to require reversal on appeal, it must [have
been] prejudicial to the party claiming it.” (quotation omitted)). Although the
trial court’s order refers to “the Petitioner” when discussing the respondent’s
individual prayers for relief, the trial court was clearly aware that the
respondent made the requests. The trial court held a hearing on the motion in
which it heard argument directly from the respondent. Furthermore, the trial
court’s order states that it would “address the Respondent’s requests in the
order in which they appear . . . in his motion” and later refers to “the
Respondent’s Motion” as the basis for the award of attorney’s fees to the
petitioner. Accordingly, this misattribution does not constitute reversible error.
See id.The respondent next challenges the trial court’s ruling on his request to
remove the life insurance requirement. The respondent, however, does not
argue that the trial court erred in denying the request. Instead, he argues that
15
the trial court mischaracterized the intent and effect of the life insurance
requirement when it noted in its order that the court, in ordering the
requirement, had “imposed an obligation on both parties to secure their child
support obligation with a life insurance policy.” Not only did the respondent
fail to raise this argument to the trial court, see Halifax, 170 N.H. at 574, he
provides no basis to support his assertion that the trial court’s characterization
of the requirement was incorrect or that it prejudiced him in any way, see
Giles, 136 N.H. at 545. Accordingly, we uphold the trial court’s denial of this
request.
The respondent next argues that the trial court did not have the
statutory authority necessary to vacate, sua sponte, paragraph G in the
parenting plan. See RSA 461-A:11 (2018). Generally, we will not overturn a
trial court’s modification of an order regarding parenting rights and
responsibilities unless it clearly appears that the trial court unsustainably
exercised its discretion. In the Matter of Kelly & Fernandes-Prabhu, 170 N.H.
42, 47 (2017). To the extent that resolution of the modification issue requires
us to engage in statutory interpretation, our review is de novo. Id.Paragraph G of the parenting plan required the parties to meet “as often
as necessary” to review and adjust the parenting plan, and specifically required
them to meet in March 2017 to revise the plan before the child began school.
The respondent alleged that he and the petitioner met in March 2017 to
discuss changes to the plan before the child began school, and agreed to meet
again in January 2018 for that purpose. However, the petitioner thereafter
refused to meet and rejected his proposed changes to the parenting plan. The
petitioner did not dispute these facts, but contended that meetings with the
respondent had not produced any agreements between the parties and made
her feel uncomfortable. She further noted that the respondent did not agree to
her proposals and would only agree to his own. The trial court, in vacating
paragraph G, reasoned that it was “not only unnecessary . . . , but also
unlikely to produce any meaningful agreements of the parties.” The trial court
noted that it was “more a source of conflict than a means by which conflict can
be avoided” and “not statutorily based.”
RSA 461-A:11, I, grants a court authority to modify a permanent order
concerning parental rights and responsibilities if it finds one of the predicate
circumstances specified in the statute. See Kelly, 170 N.H. at 47. The trial
court here did not specifically identify which of the predicate circumstances
authorized it to modify the parenting plan. The respondent argues that,
because neither party requested this modification, RSA 461-A:11, II provides
the only authority by which the court could have vacated this provision. That
provision requires that the modification be “based on the best interest of the
child.” RSA 461-A:11, II (“Except as provided in RSA 461-A:11, I(b)-(i) for
parenting schedules and RSA 461-A:12 for a request to relocate the residence
of a child, the court may issue an order modifying any section of a permanent
16
parenting plan based on the best interest of the child.”). He argues that the
court’s basis for vacating paragraph G does not fall within this provision.
The petitioner argues that this modification was justified under RSA 461-
A:11, I(f). Under RSA 461-A:11, I(f), a court may issue an order modifying a
permanent order concerning parental rights and responsibilities where “[t]he
modification makes either a minimal change or no change in the allocation of
parenting time between the parents, and the court determines that such
change would be in the best interests of the child.” The petitioner argues that
the trial court’s modification falls within this provision because the
modification had no impact on the allocation of parenting time and was in the
best interests of the child.
We agree with the petitioner that the trial court’s modification did not
affect the allocation of parenting time under the parenting plan. However,
under either statutory provision identified by the parties, the trial court was
required to find that removal of paragraph G was in the best interests of the
child. See RSA 461-A:11, I(f), II. Although the trial court did not make an
express finding in its order as to whether the modification was in the child’s
best interests, we construe the trial court’s reasoning for vacating paragraph G
as an implied finding that this modification was in the best interests of the
child, and find that it is supported by the record. See In the Matter of Kosek &
Kosek, 151 N.H. 722, 724-25 (2005) (assuming the trial court found, and
concluding that the record supports, that its modification to a visitation
schedule was not contrary to the best interests of the children).
RSA 461-A:6, I (Supp. 2019) codifies the “best interests of the child”
criteria, setting forth a list of non-exhaustive factors the court must consider,
including “[t]he ability and disposition of each parent to foster a positive
relationship and frequent and continuing . . . contact with the other parent,
including whether contact is likely to result in harm to the child or to a
parent.” RSA 461-A:6, I(e); see In the Matter of Miller & Todd, 161 N.H. 630,
640-41 (2011). Here, the trial court heard testimony from both parties that
they could not reach an agreement when they met regarding changes to the
parenting plan. Furthermore, their representations provide an inference that
the meetings failed to foster negotiations between the parties to reach an
agreement and instead caused at least one party to feel uncomfortable. These
facts, viewed in light of the extensive litigation that has resulted from
disagreements between the parties, support a determination that the parties
lack the ability to foster a positive relationship with each other, and that
requiring continued contact between the parties would not be in the best
interests of the child. See RSA 461-A:6, I(e). Accordingly, the trial court’s
decision to vacate paragraph G of the parenting plan was not an unsustainable
exercise of discretion.
17
The respondent next contends that the trial court erred in denying his
request to modify the parenting plan to allow him to have additional parenting
time and two consecutive weeks of vacation with the child. He argues, for the
first time on appeal, that his request falls within RSA 461-A:11, I(h), which
allows the court to modify an order concerning parental rights and
responsibilities where “one parent’s allocation . . . of parenting time was based
in whole or in part on his or her work schedule and there has been a
substantial change in that work schedule such that the existing order is not in
the child’s best interest.” However, as the petitioner notes, the respondent
failed to cite a statutory basis or provide evidence to the trial court to support
this significant modification. Although the respondent asserted in his motion
to reconsider that he was a full-time student at the time the parenting plan
was executed, nothing in the record demonstrates that the allocation of
parenting time in the plan was based, in whole or in part, on his status as a
student, or that the existing parenting time is not in the child’s best interest.
See RSA 461-A:11, I(h). Thus, the trial court’s decision to deny his request was
not an unsustainable exercise of discretion.
Next, the respondent argues that the trial court unsustainably exercised
its discretion by awarding the petitioner attorney’s fees. We will not overturn
the trial court’s decision concerning attorney’s fees absent an unsustainable
exercise of discretion. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 30
(2017). To warrant reversal, the discretion must have been exercised for
reasons clearly untenable or to an extent clearly unreasonable to the prejudice
of the objecting party. Id. In evaluating the trial court’s ruling on this issue,
we acknowledge the deference given a trial court’s decision regarding attorney’s
fees. Id. If there is some support in the record for the trial court’s
determination, we will uphold it. Id.While the general rule in New Hampshire is that parties pay their own
attorney’s fees, we have recognized various exceptions. Glick v. Naess, 143
N.H. 172, 175 (1998). A prevailing party may be awarded attorney’s fees when
that recovery is authorized by statute, an agreement between the parties, or an
established judicial exception to the general rule that precludes recovery of
such fees. Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016). One
judicially-created exception exists when a party must litigate against an
opponent whose position is patently unreasonable. Glick, 143 N.H. at 175. A
claim is patently unreasonable when it is commenced, prolonged, required, or
defended without any reasonable basis in the facts provable by evidence, or
any reasonable claim in the law as it is, or as it might arguably be held to be.
Id.; see Kukene v. Genualdo, 145 N.H. 1, 3 (2000). A party’s unreasonableness
is treated on an objective basis as a variety of bad faith, and made just as
amenable to redress through an award of attorney’s fees as would be the
commencement of litigation for the sole and specific purpose of causing injury
to an opponent. Glick, 143 N.H. at 175. When attorney’s fees are awarded
against a private party who has acted in bad faith, the purpose is to do justice
18
and vindicate rights, as well as to discourage frivolous lawsuits. See Fat
Bullies Farm, 170 N.H. at 30.
The trial court awarded attorney’s fees based upon a finding that the
respondent’s motion to modify the parenting plan and permanent stipulation
was “frivolous . . . and without any established legal basis.” The respondent
argues that there was a legal basis for his motion — paragraph G of the
parenting plan and the parenting plan generally. He argues that he
“approached the court for assistance regarding the enforcement” of provisions
in the parenting plan “put in place for dealing with parenting disagreements,”
which the petitioner “appear[ed] to be flouting.”
As an initial matter, it was not unreasonable for the trial court to
conclude that certain requests in his motion lacked a legal basis. As discussed
above, the respondent provided no legal or factual basis to support his requests
to modify the parenting time provisions of the parenting plan. Moreover,
although his motion asserted that the life insurance provision of the permanent
stipulation violated his religious beliefs, he made no such representation to the
trial court at the hearing and ignored the trial court when it specifically asked
him whether he had recently become a member of a particular faith.
Nonetheless, while it was reasonable for the trial court to deny the
respondent’s request to enforce paragraph G of the parenting plan, this request
did not lack a legal basis. At the time the respondent filed his motion,
paragraph G was an enforceable provision of the parenting plan. Although the
parties met in March 2017, they failed to reach an agreement, and the
petitioner did not dispute that she thereafter refused to meet with the
respondent. While it may have been reasonable for the petitioner to make this
decision, given the parties’ inability to reach an agreement, at the time the
respondent filed his motion paragraph G remained an enforceable provision
that required the parties to meet to review and adjust the parenting plan “as
often as necessary for the benefit of the child.” The parties’ pleadings —
including the petitioner’s motion to approve daycare and kindergarten
enrollment — demonstrate that an ongoing disagreement existed between the
parties with respect to specific provisions of the parenting plan. Therefore, the
respondent’s request to enforce paragraph G, in an effort to resolve the parties’
dispute, had a legal foundation and does not provide a basis to support the
award of attorney’s fees. Nevertheless, because the respondent’s motion also
set forth requests that lacked a legal basis, we vacate and remand the trial
court’s award to determine, in light of our decision, whether to award
attorney’s fees pertaining to those particular claims.
E. Order Approving Daycare and Kindergarten Enrollment
Finally, the respondent argues that the trial court erred when it
19
considered and approved the petitioner’s motion to enroll their child in private
daycare and kindergarten. Specifically, the respondent contends that the trial
court committed an unsustainable exercise of discretion when it ruled on this
motion because paragraph G requires both parties to work together to make
changes to the parenting plan before the child begins school. In light of the
trial court’s proper decision to vacate paragraph G, the parties’ inability to
reach an agreement, and the parenting plan’s provisions providing that the
child primarily reside with the petitioner and attend school where the parent
with primary residential responsibility resides, we conclude that the trial
court’s decision to grant the petitioner’s motion was not an unsustainable
exercise of discretion.
III. Conclusion
We conclude that the trial court properly exercised jurisdiction over the
child custody proceeding under RSA chapter 458-A and the divorce action
under RSA 458:5 and :6. Furthermore, we conclude that the trial court did not
commit an unsustainable exercise of discretion in denying the respondent’s
motion for contempt, motion to restrain, and motion regarding parental
interference.
As for the trial court’s amended uniform support order, the trial court did
not unsustainably exercise its discretion by applying the petitioner’s
calculation of the respondent’s income in determining his amended child
support obligation, declining to adjust the child support obligation, ordering
the respondent to pay an arrearage, and ordering him to pay his child support
obligation to DCSS by immediate income assignment. However, we vacate and
remand the amended uniform support order for the trial court to: (1) consider
income from the petitioner’s second job; (2) require the petitioner to comply
with Family Division Rules 1.25-A(B)(1)(c) and 2.16 by providing four pay stubs
per employer or to establish good cause to waive this requirement; and (3)
consider the amount of child support the respondent paid during the arrearage
period in its arrearage calculation.
Finally, we conclude that the trial court did not unsustainably exercise
its discretion by denying the respondent’s requests to modify the parties’
parenting plan and permanent stipulation and vacating paragraph G of the
parenting plan. We vacate the award of attorney’s fees to the petitioner and
remand the issue to the trial court.
Affirmed in part; vacated in part;
and remanded.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
20