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In re Rossino

Supreme Court of New Hampshire

December 19, 2007

In the Matter of Lucille J. Rossino and Joseph A. Rossino

UNPUBLISHED OPINION

The respondent, Joseph A. Rossino, appeals an order of the trial court addressing the modification of his child support obligation. He argues that the trial court erred in: (1) assigning an effective date of October 2006 to the modification of his child support obligation; (2) ordering him to pay $7000 from his workers' compensation settlement; and (3) ruling that he had failed to establish fraud. We affirm.

Trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of State & Taylor, 153 N.H. 700, 702 (2006). Because the trial court is in the best position to determine the parties' respective needs and abilities to meet them, we will not overturn a modification order absent an unsustainable exercise of discretion. Id.

The respondent first argues that the trial court erred in assigning an effective date of October 2006 to the modification of his child support obligation. He argues that a pleading entitled "Motion to Amend Objection to Motion for Contempt" (Motion to Amend), dated April 2005 and apparently filed with the trial court in May 2005, provided sufficient notice to the petitioner that the respondent sought modification; therefore any modification based upon the injury cited in that pleading should have been retroactive to April 2005. A review of the limited record provided on appeal, however, indicates that the injury cited in his April 2005 pleading was considered by the trial court at a hearing on the motion for contempt and that no modification was made. The respondent's motion for reconsideration, which set forth the same information as that contained in his Motion to Amend, was denied in August 2005. There is no indication that the August 2005 order was appealed. As the respondent concedes, he next filed a motion for modification in October 2006. Accordingly, we find no error in the trial court's assignment of the effective date of modification.

The respondent next argues that the trial court erred in awarding $7000 to the petitioner as child support. He argues that the award was error "pursuant to In the Matter of State and Taylor, 153 N.H. 700 (2006)." In Taylor, we held that nothing in RSA chapter 458-C prohibited a trial court from allocating the proceeds of a substantial lump sum settlement award over time. We specifically held that it would "be unwise to define one rule to be applied, and that the appropriate treatment of such awards depends upon the circumstances of each case, with the best interests of the child as the paramount focus." Id. at 709.

In this case, the trial court noted that the respondent was disabled at the time of its order, was able to drive a motor vehicle without restrictions, was attending classes at night and planned to pursue either an electrician's or plumber's license. The court also found the lump sum payment to be one-time or irregular income. The court further found, however, that although RSA 458-C:2, IV (c) would entitle the petitioner to 40% of the respondent's lump sum settlement as child support, a strict application of the guidelines would be unjust to the respondent given his unemployed status at that time; it therefore reduced the award to $7000. Based upon the record before us, we find no error.

The respondent also argues that the trial court erred in ruling that he failed to establish that the petitioner had misrepresented her financial status during the parties' divorce proceedings. The divorce decree was the subject of an earlier appeal to this court. In the Matter of Rossino & Rossino, 153 N.H. 282 (2006). The respondent did not raise the petitioner's alleged failure to comply with discovery orders at that time. Accordingly, he has waived that issue. See Meier v. Town of Littleton, 154 N.H. 340, 342-43 (2006) (discussion of principles of res judicata); DePalantino v. DePalantino, 139 N.H. 522, 524-25 (1995).

Affirmed.

DALIANIS, DUGGAN and GALWAY, JJ., ...


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