In the Matter of Vivian Silva and Robert Silva

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit Court-Nashua Family Division
Nos. 2016-0478
2017-0063
IN THE MATTER OF VIVIAN SILVA AND ROBERT SILVA
Argued: October 26, 2017
Opinion Issued: June 8, 2018
Law Offices of Lydon & Richards, P.C., of Nashua (Edward W. Richards
on the brief and orally), for the petitioner.
Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief
and orally), for the respondent.
BASSETT, J. In these consolidated appeals, the petitioner, Vivian Silva,
appeals two orders of the Circuit Court (Introcaso, J.) in her divorce from the
respondent, Robert Silva. She argues that the trial court erred when it: (1)
deviated from the child support guidelines, see RSA 458-C:5 (Supp. 2017); (2)
inequitably divided the marital estate, see RSA 458:16-a, II (2004); and (3) did
not find the respondent in contempt for withdrawing funds from an education
savings account, or “529 account,” established for their daughter’s benefit,
during the pendency of the divorce, and did not consider the 529 account in its
division of the marital estate, see 26 U.S.C. § 529 (Supp. 2017); RSA 458:16-a,
III (2004). We vacate and remand.
The record supports the following facts. In July 2016, following a final
divorce hearing, the trial court granted the parties a divorce based upon
irreconcilable differences. In the final divorce decree, the trial court ordered an
equal division of the marital assets based upon a consideration of the factors
outlined in RSA 458:16-a. By agreement of the parties, the petitioner was
awarded the parties’ real estate, where the parties had resided and operated a
bed and breakfast. The trial court awarded other assets to the respondent to
equalize the award.
The parties’ final divorce decree also included an agreed-upon parenting
plan regarding the parties’ two children, which provided that the parties “shall
have equal or approximately equal residential responsibility.” At the time the
trial court entered the final divorce decree, it also entered a temporary Uniform
Support Order regarding child support. In that temporary order, it denied the
respondent’s request to deviate from the child support guidelines, and ordered
him to pay full child support to the petitioner.
Subsequently, the trial court held a final child support hearing and
issued a final order. The court ordered a downward deviation from the child
support guidelines, thereby reducing the respondent’s child support obligation
from $1,590.00 per month to $533.80 per month. See RSA 458-C:5, I. The
trial court justified the adjusted support obligation on three grounds related to
the parties’ shared parenting schedule. See RSA 458-C:5, I(h)(2). The
petitioner filed motions to reconsider the property distribution order and the
final child support order, both of which were denied. These appeals followed.
I. Child Support
The petitioner first argues that the trial court erred when it deviated from
the child support guidelines based upon the parties’ shared parenting
schedule. We agree.
We will not disturb the trial court’s rulings regarding child support
absent an unsustainable exercise of discretion or an error of law. In the Matter
of Laura & Scott, 161 N.H. 333, 335 (2010). “When we determine whether a
ruling made by a judge is a proper exercise of judicial discretion, we are really
deciding whether the record establishes an objective basis sufficient to sustain
the discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296
(2001).
New Hampshire’s child support guidelines, codified in RSA chapter
458-C (2004 & Supp. 2017), establish a uniform system to determine the
amount of child support awards. Laura, 161 N.H. at 335. 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
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relative percentage of each parent’s income. Id. There is a rebuttable
presumption that a child support award calculated under the guidelines is the
correct amount of child support. Id.; RSA 458-C:4, II (2004). This
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; Laura, 161 N.H. at
335-36. If the trial court deviates from the guidelines, it must “make a written
finding as to why a special circumstance pursuant to RSA 458-C:5 justifies an
adjustment from the child support guidelines to avoid an unjust or
inappropriate result.” In the Matter of Forcier & Mueller, 152 N.H. 463, 465
(2005); see RSA 458-C:4, II.
RSA 458-C:5, I, includes a non-exclusive list of special circumstances
that, if raised by a party or the court, the court shall consider in making an
adjustment that deviates from the child support guidelines. RSA 458-C:5, I.
Although this list is non-exclusive, 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.” In the Matter of Carr & Edmunds, 156 N.H. 498, 504 (2007).
Additionally, the trial court must consider any special circumstances “in light
of the best interests of the child.” RSA 458-C:5, I.
RSA 458-C:5 expressly identifies the parties’ parenting schedule as a
special circumstance. RSA 458-C:5, I(h). However, the statute provides that
“[e]qual or approximately equal parenting residential responsibilities in and of
itself shall not eliminate the need for child support and shall not by itself
constitute ground for an adjustment.” RSA 458-C:5, I(h)(1) (emphases added).
The statute further provides that, in considering requests for adjustments to
the application of the child support guidelines based upon the parenting
schedule, the court “may” consider three factors:
(A) Whether, in cases of equal or approximately equal
residential responsibility, the parties have agreed to the specific
apportionment of variable expenses for the children, including but
not limited to education, school supplies, day care, after school,
vacation and summer care, extracurricular activities, clothing,
health insurance costs and uninsured health costs, and other
child-related expenses.
(B) Whether the obligor parent has established that the equal
or approximately equal residential responsibility will result in a
reduction of any of the fixed costs of child rearing incurred by the
obligee parent.
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(C) Whether the income of the lower earning parent enables
that parent to meet the costs of child rearing in a similar or
approximately equal style to that of the other parent.
RSA 458-C:5, I(h)(2)(A)-(C).
The trial court justified the respondent’s adjusted child support
obligation on three grounds related to the factors enumerated in RSA 458-C:5,
I(h)(2). The petitioner challenges all three grounds for the trial court’s decision.
The petitioner first argues that the trial court erred because there was “no
factual basis” for its adjustment under subparagraph I(h)(2)(A). The
respondent counters that the trial court’s deviation was sustainable because it
apportioned “the majority of financial responsibility for several child-related
expenses” to the respondent, and it specified written reasons justifying the
deviation. We agree with the petitioner.
Here, the trial court justified its deviation from the guidelines not upon
the parties’ agreement to apportion variable expenses, but rather, upon its own
apportionment of expenses. Cf. RSA 458-C:5, I(h)(2)(A). Neither party asserts
that the trial court erred when it considered its own apportionment of expenses
— as opposed to an apportionment of expenses agreed to by the parties — as a
special circumstance under RSA 458-C:5, I(h)(2). Accordingly, for the purposes
of this appeal, we assume that a court-ordered apportionment of expenses is a
special circumstance that may be considered pursuant to RSA 458-C:5, I(h)(2).
Nonetheless, we conclude that the trial court’s findings were insufficient to
justify a deviation.
The court found that, during his parenting time the respondent assumed
the cost of child care, sustenance, transportation, clothing, and other variable
expenses. In addition to these costs assumed by the respondent, the court
apportioned to him two-thirds of the cost of school supplies and seventy-five
percent of the cost of health insurance deductibles and co-pays. It also
required him to pay seventy-five percent of the cost of any extracurricular
activities and summer programs for the children, subject to the condition that
both parties agree to the activity or program. The trial court further provided
that each party is responsible for all child care costs and vacation costs
incurred during their respective parenting times.
The trial court did not analyze the economic consequences of its
apportionment of variable expenses or the respondent’s assumption of
responsibility for other variable expenses, or explain how the division of
expenses made the application of the guidelines “unjust or inappropriate.”
RSA 458-C:4, II; see Forcier, 152 N.H. at 465 (holding that “the trial court’s
simple statement that the ‘remainder of child support obligation will continue
to go to the college trust fund for the children’ was not legally sufficient to
explain what ‘economic consequences’ result[ed] from this payment and why it
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[was] consequently appropriate and just” to enter a downward deviation). The
trial court’s recognition that responsibility for certain variable expenses had
been apportioned to, or assumed by, the respondent, without findings as to
why this apportionment made adherence to the guidelines unjust or
inappropriate, is insufficient, as a matter of law, to justify a deviation from the
guidelines. See Forcier, 152 N.H. at 465-66; In the Matter of Gordon and
Gordon, 147 N.H. 693, 699-700 (2002).
The petitioner also argues that the trial court erred when it made a
downward deviation because there was no “proof of [a] reduction in [her] fixed
costs of child rearing.” See RSA 458-C:5, I(h)(2)(B). The respondent counters
that the trial court’s deviation from the guidelines under subparagraph
I(h)(2)(B) was a sustainable exercise of discretion because the court gave
written reasons for the deviation, including that the respondent has assumed
full responsibility for child care, transportation, and other costs incurred
during his parenting time. We agree with the petitioner.
In its final order, the trial court found that the parties’ shared parenting
schedule “has resulted in a reduction of the fixed costs of child rearing
incurred by the [petitioner] in that the [respondent] takes full responsibility for
child care, sustenance, transportation and all other costs for the children
during his parenting time.” See RSA 458-C:5, I(h)(2)(B). It further noted that
“[b]oth parents provide living arrangements, clothing and other items for the
children.” However, the trial court did not find that any of the petitioner’s fixed
costs were reduced because of the parties’ shared residential responsibility.
Indeed, with the exception of housing, the expenses that the trial court
discussed are either explicitly referred to in the statute as “variable expenses,”
or are akin to the enumerated variable expenses. See RSA 458-C:5, I(h)(2)(A)
(referring to “variable expenses for the children” as “including but not limited to
education, school supplies, day care, after school, vacation and summer care,
extracurricular activities, clothing, health insurance costs and uninsured
health costs, and other child-related expenses” (emphases added)); see also
Webster’s Third New International Dictionary 2533 (unabridged ed. 2002)
(defining “variable cost” as a “cost that fluctuates directly with changes in
output”). The statute does not define “fixed costs” as used in RSA 458-C:5,
I(h)(2)(B). See RSA 458-C:2 (Supp. 2017) (defining terms used in RSA chapter
458-C). Accordingly, principles of statutory interpretation dictate that the term
mean something different than the term “variable expenses” as used in the
same statute. See Ettinger v. Town of Madison Planning Bd., 162 N.H. 785,
791 (2011) (“When the legislature uses different language in the same statute,
we assume that the legislature intended something different.”); see also Black’s
Law Dictionary 422-23 (10th ed. 2014) (defining “fixed cost” as “[a] cost whose
value does not fluctuate with changes in output or business activity;
esp[ecially] overhead expenses such as rent . . . .”).
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The trial court did not explain how the parties’ division of responsibility
for certain variable expenses resulted in a reduction of the petitioner’s fixed
costs. Although the trial court noted that each party provides housing for the
children, which is arguably a fixed cost, it did not explain how the parties’
shared residential responsibility reduced the cost of the petitioner’s housing or
reduced her other fixed costs. Accordingly, we conclude that the trial court did
not make sufficient findings to support its conclusion that the petitioner’s fixed
costs were reduced by the parties’ shared residential responsibility. See RSA
458-C:5, I(h)(2)(B).
The petitioner next argues that the trial court did not give proper
consideration to RSA 458-C:5, I(h)(2)(C) and “ignored its responsibility to only
deviate from the guidelines when the obligee can maintain a home and lifestyle
environment for the children during her parenting periods comparable to [the]
obligor.” The respondent counters that the trial court’s deviation from the
guidelines was a sustainable exercise of discretion because it justified the
deviation in writing, explaining that the petitioner had been awarded the
marital home. Again, we agree with the petitioner.
The trial court stated that it was “confident” that the petitioner’s income,
including self-employment wages, alimony, and rental income, “enables her to
meet the costs of child rearing in a similar or approximately equal style to that”
of the respondent. See RSA 458-C:5, I(h)(2)(C). In support of this statement,
the court observed that, as a result of her business, the petitioner “has the
privilege of a generous and comfortable living environment for the children
. . . in an upscale, safe community” and that “[h]er home combined with her
other financial resources assure that the children will reside in a style similar
to that affordable to” the respondent.
We conclude that the trial court made insufficient findings to support its
conclusion. The record demonstrates that the petitioner’s adjusted gross
monthly income plus child support, is $2,872, which is significantly less than
the respondent’s adjusted gross monthly income minus his support obligation,
which is $6,913. Despite this disparity, the trial court reasoned that the
petitioner’s financial resources and home ownership ensure that the children
will reside with her in a style similar to that of the respondent. We realize that
the petitioner, and by extension, the children, benefit from the petitioner’s
home and business property because they provide a safe and comfortable living
environment. However, the record demonstrates that the petitioner’s adjusted
gross monthly income, plus child support, is insufficient to enable her to
continue to meet the costs of child rearing in a style that is approximately
equal to that of the respondent. See RSA 458-C:5, I(h)(2)(C).
The petitioner’s adjusted gross monthly income plus the reduced child
support payment ordered by the court — $2,872 — falls well short of her
estimated monthly expenses — $4,370. The respondent did not challenge
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these estimated monthly expenses at the final hearing. The gap between the
petitioner’s income and her expenses demonstrates that she will not be able to
afford the costs associated with home and business ownership, including
mortgage payments, property taxes, utilities, and insurance, in addition to
covering other child rearing expenses, such as food, clothing, and school
supplies. Therefore, we conclude that the trial court made insufficient findings
to justify a deviation under subparagraph I(h)(2)(C).
We now turn to the respondent’s additional arguments in support of the
trial court’s deviation. The respondent argues, relying upon In the Matter of
Lynn & Lynn, 158 N.H. 615, 618 (2009), that “[i]t was within the court’s
discretion to consider the [petitioner’s] voluntary underemployment as a special
circumstance justifying a downward deviation from the guidelines.” However,
neither the trial court in Lynn, see id., nor the trial court in this case, based its
downward deviation from the guidelines upon a finding of voluntary
underemployment. We therefore find the respondent’s reliance upon Lynn to
be misplaced.
The respondent also argues that we must presume that the trial court
made sufficient findings regarding the statutory factors to support its deviation.
We disagree. The child support statute requires that, in order to justify a
deviation from the guidelines, the trial court make a “specific finding . . . on the
record.” RSA 458-C:4, II. Although the factors enumerated in RSA 458-C:5,
I(h)(2) are neither mandatory nor exclusive, and despite the fact that the trial
court referenced the factors in its order, we conclude that, as to all three
grounds for the deviation, the court’s findings were insufficient because it did
not explain why a departure from the guidelines was necessary to avoid an
unjust or inappropriate result. See RSA 458-C:4, II; see also Forcier, 152 N.H.
at 465-66 (vacating trial court’s order deviating from guidelines because it did
not make a finding “to show why a departure from the guidelines [was]
necessary . . . to avoid an unjust or inappropriate result”). Accordingly, we
vacate the trial court’s child support determination.
II. Property Division
We next address the parties’ arguments regarding the division of the
marital estate. The trial court is afforded broad discretion in determining
matters of property distribution when fashioning a final divorce decree. In the
Matter of Geraghty & Geraghty, 169 N.H. 404, 417 (2016). We will not
overturn a trial court’s decision on these matters absent an unsustainable
exercise of discretion or an error of law. Id. If the court’s findings can
reasonably be made on the evidence presented, they will stand. In the Matter
of Martel & Martel, 157 N.H. 53, 56 (2008).
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A. Valuation of real estate
At the final divorce hearing, the parties agreed that real estate in the
marital estate would be awarded to the petitioner, that the value of the
property was $550,000, and that a mortgage of approximately $309,000 was
secured by the marital property. The parties also stipulated that the
petitioner’s parents gave the parties funds that were “an investment in the
property that added to the property’s value.” However, they disagreed as to the
legal implication of the parents’ investment. In its final order, the trial court
determined that, because the parties did not have a legal obligation to repay
the parents, it would not regard the parents’ investment as a debt chargeable
to the marital estate.
The petitioner argues that, because the trial court mischaracterized the
parents’ financial contributions as giving rise to only a moral obligation for
repayment, it erroneously overvalued the equity in the property. She argues
that, had the trial court properly deemed the parents’ contributions to be an
encumbrance, the value of the property awarded to the petitioner would have
been reduced, which, in turn, would have reduced the amount of property
awarded to the respondent. The petitioner makes numerous arguments as to
how the trial court erred; however, all of her arguments are premised upon the
notion that the trial court erred because it concluded that the parties did not
have a legal obligation to repay the parents. We conclude that the trial court
did not err in rejecting this premise.
We have recognized that a “moral” obligation for repayment — as
opposed to a legal obligation — cannot properly be characterized as a debt
chargeable to the marital estate. In the Matter of Harvey & Harvey, 153 N.H.
425, 437 (2006), overruled on other grounds by In the Matter of Chamberlin &
Chamberlin, 155 N.H. 13, 16 (2007); see also Azzi v. Azzi, 118 N.H. 653, 656-
57 (1978) (upholding trial court’s exclusion of purported debt from marital
estate where there was evidence upon which trial court could conclude that
repayment of debt would represent satisfaction of a moral, not legal,
obligation). Here, the trial court did not consider the purported debt in its
division of the marital estate because it concluded that the parents’ financial
contributions “were not ‘loans’ which would constitute a debt chargeable to the
marital estate as neither party ha[d] ‘an enforceable legal obligation’ to repay
the [parents].” The trial court reached its conclusion after making the following
factual findings: “[t]here was no documentation of these [alleged] loans
indicating the identity of the borrower(s), the terms of the loan, the purpose of
the loan, etc.”; “there was no specific documentation provided indicating that
the banking institution which provided a mortgage on the parties[’] property
[was] informed of a ‘loan’ by a third party”; neither party “document[ed] the
existence of this alleged ‘loan’ in their initial financial affidavits”; and “there
[was] no evidence of repayment of these loans; rather the [parents] have taken
occupancy of the property.” Because these findings are supported by the
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record, we cannot conclude that the trial court unsustainably exercised its
discretion. See Harvey, 153 N.H. at 437; Azzi, 118 N.H. at 656-57.
B. Equal distribution of marital estate
The petitioner also argues that the trial court erred when it made an
equal distribution of the marital estate. Specifically, she contends that the
distribution was not equitable because: (1) the respondent’s earnings and
employer-provided benefits “have always been and will likely continue to be
twice what [the petitioner’s] are or will be”; (2) her earnings are insufficient to
cover her living expenses or to allow her to acquire capital assets in the future;
(3) the petitioner’s “career was interrupted and then terminated due to child
care demands and the parties’ decision to start a bed and breakfast home
business”; and (4) at the time of the divorce, the respondent had significantly
more in retirement savings. See RSA 458:16-a, II(b)-(c), (g), (i). The respondent
counters that the petitioner’s argument is waived because it was not included
in the petitioner’s notice of appeal. On the merits, the respondent argues that
the trial court sustainably exercised its discretion when it equally divided the
marital property because the trial court considered each of the RSA 458:16-a,
II factors, and, under the statute, an equal distribution is presumptively
equitable.
Assuming, without deciding, that the petitioner’s argument is not waived,
we agree with the respondent that the trial court sustainably exercised its
discretion. Under RSA 458:16-a, II, “an equal division of property is presumed
equitable unless the trial court decides otherwise after considering one or more
of the factors designated in the statute.” Geraghty, 169 N.H. at 417 (quotation
omitted). The statute lists factors that the court may consider, see RSA
458:16-a, II, and also permits the court to consider any other factor it deems
relevant, see RSA 458:16-a, II(o); see also In the Matter of Sarvela & Sarvela,
154 N.H. 426, 431 (2006). The court need not consider all of the enumerated
factors or give them equal weight. See Geraghty, 169 N.H. at 417.
In its order, the trial court stated that it “look[ed] at each of the factors to
be considered under RSA 458:16-a” and found “no articulable reason to order
anything other than an equal division of assets to the extent . . . possible.” The
record supports this determination. Further, in its order, the trial court
specifically discussed the length of the marriage; the parties’ respective
contributions to the growth of common assets, including their real estate and
business; the parties’ education, health, and ability to support themselves; and
their abilities to secure additional assets in the future. See RSA 458:16-a, II
(a)-(c), (f); see also RSA 458:16-a, IV (2004) (requiring the court to “specify
written reasons for the division of property which it orders”). We cannot say
that the trial court unsustainably exercised its discretion. See Geraghty, 169
N.H. at 417-18; In the Matter of Watterworth & Watterworth, 149 N.H. 442,
453 (2003).
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C. Evidentiary rulings
The petitioner next argues that the trial court erred when it prohibited
introduction of certain evidence related to the parents’ contribution to the
parties’ real estate. The petitioner merely asserts that the court erred when it
“refused to allow” her to introduce certain evidence, but she does not develop
an argument as to why those rulings were in error or point to any authority in
support of her position. Because we confine our review to only those issues
that the petitioner has fully briefed, we deem these arguments waived. See
State v. Blackmer, 149 N.H. 47, 49 (2003).
III. 529 Account
Finally, we address the parties’ arguments regarding the 529 account
that was established for the parties’ daughter’s benefit and held in the
respondent’s name. Prior to the final divorce hearing, the petitioner filed a
motion for contempt, claiming that, by withdrawing funds from the 529
account, the respondent had violated a court order. Cf. RSA 458:16, I(g) (2004)
(providing that, after the filing of a divorce, trial court may, within its
discretion, issue a temporary restraining order “[e]njoining any party from
transferring, encumbering, hypothecating, concealing or in any way disposing
of any property, real or personal, except in the usual course of business or for
the necessities of life”). After the final divorce hearing, at which the respondent
testified about his withdrawal of funds, the trial court found that, because “he
was unable to meet his ongoing financial expenses,” the respondent had
removed one half of the funds from the 529 account during the pendency of the
divorce. Although the court ruled that the respondent was “responsible for any
tax, fees or penalties associated with the withdrawals he made from the
account,” it did not award the balance of the 529 account to the petitioner.
There is no evidence in the record that the court found the respondent in
contempt.
The petitioner argues that the trial court erred by “fail[ing] to take any
action on [her] motion,” and by failing to find him in contempt. The respondent
counters that we should reject the petitioner’s argument because she has not
provided us a sufficient record to decide the issue. We agree with the
respondent.
“It is the burden of the appealing party, here the [petitioner], to provide
this court with a record sufficient to decide her issues on appeal . . . .” Bean v.
Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 13(2).
The petitioner has not provided us with a copy of her motion for contempt, or a
copy of the trial court’s order that she claims the respondent violated by
withdrawing funds from the account. Nor does the record on appeal include a
copy of the trial court’s order on the petitioner’s motion for contempt.
Although the petitioner argues, in part, that the trial court failed to rule upon
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her motion, the trial court referenced a previous order on the contempt motion
when ruling upon the parties’ requests for findings of fact and rulings of law,
and we have not been provided with a copy of the order itself. Absent a
complete record, we cannot conclude that the trial court committed error. See
In the Matter of Rokowski & Rokowski, 168 N.H. 57, 62 (2015) (concluding
that, because the respondent failed to provide a sufficient record for our review,
he had not demonstrated that the trial court erred).
The petitioner also argues that the trial court erred in that it either did
not consider the 529 account when making its property distribution, or if it
did, its property distribution did not comply with RSA 458:16-a, III. RSA
458:16-a, III provides that if either or both parties retain an ownership interest
in a 529 account, “the court may, in its discretion, preserve the account for its
original purpose or may treat the account as property of the marriage subject
to equitable division.” RSA 458:16-a, III. The petitioner argues that the trial
court erred when it did not treat all of the account funds in the same manner
— either as a marital asset subject to equitable distribution, or as preserved for
its original purpose. In other words, the petitioner asserts that it was error for
the trial court to allow the respondent to retain the withdrawn funds, while
also requiring that the remainder of the funds be preserved for their original
purpose in the account.
Given the record before us, it is unclear whether the trial court
considered the 529 account funds in its property distribution, and if it did, how
it disposed of the balance of those funds. In the absence of a clear finding by
the trial court as to these matters, we decline to address the parties’ arguments
on this issue. See Carr, 156 N.H. at 506 (remanding to trial court for further
clarification or consideration where it was unclear whether trial court had
ruled upon party’s request for dental insurance coverage and payment of
certain expenses). Accordingly, we vacate the property distribution in its
entirety and remand to the trial court to clarify its disposition of the 529
account and, as necessary, to adjust the division of marital property.
Vacated and remanded.
LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred.
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