vIn the Matter of Michelle Chirco and Anthony Chirco ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0604, In the Matter of Michelle Chirco
and Anthony Chirco, the court on September 14, 2018, issued
the following order:
Having considered the respondent’s brief and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). We affirm in part and vacate in part.
The respondent, Anthony Chirco, appeals an order of the Circuit Court
(Cross, Referee, approved by Stephen, J.) denying a petition for contempt filed
by the petitioner, Michelle Chirco, but modifying, sua sponte, his child support
obligation. He challenges the trial court’s decision to modify child support,
arguing, in part, that absent prior notice that the court might modify support,
the modification violated due process under the State Constitution. We agree.
“The core of due process is the right to notice and a meaningful
opportunity to be heard.” Lachance v. Erickson, 522 U.S. 262, 266 (1998); see
Petition of Bagley, 128 N.H. 275, 286 (1986) (“Due process requires notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.”). Here, the petitioner did not request modification of child
support, and at no point prior to issuing its order did the trial court put the
respondent on notice that it might modify his child support obligation. Thus,
the respondent had no reason to anticipate that the court would modify his
child support obligation so that he might present relevant evidence and
argument on the matter. See Blagbrough v. Town of Wilton, 145 N.H. 118, 125
(2000); Morphy v. Morphy, 112 N.H. 507, 510 (1972). Accordingly, we vacate
the trial court’s order to the extent that it modified the respondent’s child
support obligation under the October 27, 2016 uniform support order, and to
the extent that it modified the parties’ rights and obligations with respect to
their children’s extracurricular activities. In all other respects, the trial court’s
order is affirmed.
Affirmed in part; and
vacated in part.
Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Eileen Fox,
Clerk