In the Matter of Gabrielle Muller and William Muller

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2014-0628, In the Matter of Gabrielle Muller
and William Muller, the court on July 10, 2015, issued the
following order:
Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm in part, reverse in part, and remand.
The respondent, William Muller, appeals an order of the Circuit Court
(Sadler, J.) finding that, following our opinion in In the Matter of Muller &
Muller, 164 N.H. 512 (2013) (Muller I), his child support obligation “reverted to
the level from the final Order: $257 per week effective August 2011,” and
directing the New Hampshire Division of Child Support Services to calculate his
child support arrearage based upon that amount “from the effective date of the
final Order in August 2011.” He argues that, because he timely appealed the
August 2011 final decree, and because the trial court did not specifically order
that the final decree would take effect during any timely appeal, the final
decree did not take effect until we issued our mandate in Muller I. We agree.
Unless the trial court specifically orders that a final decree of divorce
take effect pending the resolution of any appeal, a timely-filed appeal will stay
the decree from taking effect, and any previously-issued temporary orders will
remain in effect during the appeal. Gray v. Kelly, 161 N.H. 160, 167-68 (2010);
Rollins v. Rollins, 122 N.H. 6, 10 (1982); see also Fam. Div. R. 2.29(B)
(providing that if a timely appeal is filed from a final decree, the decree will not
become final until the appeal period expires). In the absence of an order
requiring that the final decree take effect during the pendency of an appeal, a
party cannot be ordered to make support payments pursuant to the terms of
the decree during the appeal period, even if the decree is ultimately upheld on
appeal. See Nicolazzi v. Nicolazzi, 131 N.H. 694, 696-97 (1989).
At no point prior to the appeal in Muller I did the trial court order that
the provisions of the final decree, including the Uniform Support Order
incorporated in the decree, would take effect during any appeal. See Rollins,
122 N.H. at 9 (noting that the trial court specifically ordered that the child
support order contained within the final decree would “remain in force and
effect pending” an appeal). Indeed, in March 2012, while Muller I was pending,
the trial court specifically rejected a request of the petitioner, Gabrielle Muller,
to compute the respondent’s child support arrearage in accordance with the
support obligation imposed by the final decree, correctly reasoning that “upon
the filing of a timely appeal of a [final decree of divorce,] the relief granted by
[the trial court] at the parties’ Temporary Hearing controls” the obligor parent’s
continuing support obligation. To the extent that the trial court, in denying the
respondent’s motion for reconsideration, interpreted the March 2012 order as
providing that the August 2011 decree would constitute a temporary order
during the appeal, the trial court misconstrued the March 2012 order. See In
the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (the interpretation
of a trial court order is a question of law, which we review de novo).
Neither the provision of the Uniform Support Order stating that
payments “shall begin . . . immediately,” nor the standing order providing that
the first payment would be due on the date that the support order was “signed
by the Judge,” changes the analysis. The Uniform Support Order was part of
the final decree of divorce, and was necessarily subject to the appeal in Muller
I. As a matter of law, therefore, the respondent’s timely appeal in
Muller I stayed the Uniform Support Order from taking effect. Gray, 161 N.H.
at 168; Rollins, 122 N.H. at 10. Until the decree became final following our
mandate in Muller I, the respondent was obligated to pay only the amount of
support required by the temporary support order then in effect, see Gray, 161
N.H. at 167, which the trial court found to be $93 per week. We note that,
following our opinion in Muller I, the trial court found, and neither party
disputes, that the August 17, 2011 decree became final on January 29, 2013.
Accordingly, we reverse the trial court’s order to the extent that it
required the respondent to pay child support at the amount established by the
August 17, 2011 decree for any period of time prior to January 29, 2013, and
remand for further proceedings consistent with this order. All other aspects of
the trial court’s order, which neither party challenges on appeal, are affirmed.
Affirmed in part, reversed in part,
and remanded.
Dalianis, C.J., and Conboy and Bassett, JJ., concurred.
Eileen Fox,
Clerk
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