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In re Brack

Supreme Court of New Hampshire

November 3, 2008

In the Matter of Janet Brack and Frederick Brack

UNPUBLISHED OPINION

The respondent, Frederick Brack, appeals an order of the trial court addressing cross-motions for contempt filed in this post-divorce proceeding. He argues that the trial court erred in: (1) modifying a child support order to a date prior to the filing of the petition for contempt; and (2) interpreting the parties' 1998 stipulation to require his 50% contribution to private school expenses. We affirm in part, vacate in part, and remand.

On appeal, we will affirm the findings and rulings of the trial court unless they are unsupported by the evidence or legally erroneous. In the Matter of Cole & Ford, 156 N.H. 609, 610 (2007). We defer to a trial court's judgment on such issues as measuring the credibility of witnesses and determining the weight to be given testimony, recognizing that it is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented. In the Matter of Costa & Costa, 156 N.H. 323, 332 (2007).

The respondent first argues that the trial court erred in finding that the petitioner's child support obligation established in a 1998 permanent stipulation was modified by a 2000 oral agreement reached by the parties while engaged in counseling/mediation. RSA 461-A:14, VIII (Supp. 2008) provides: "No modification of a child support order shall alter any arrearages due prior to the date of filing the motion for modification, " see also RSA 458:17, VIII (2004) (repealed October 1, 2005). We have previously held that "[w]hen a court is modifying a support order, no arrearage due prior to the date of filing shall be altered." In the Matter of Glaude & Fogg, 151 N.H. 273, 275 (2004). Although the petitioner argues that strict application of the statute in this case is inequitable, the words of the statute are clear and leave no discretion to the trial court. Accordingly, we vacate that portion of the trial court's order that denied the respondent's request for payment of child support allegedly due under the parties' 1998 permanent stipulation.

Citing the parties' 1998 stipulation, the respondent also argues that the trial court erred in finding him liable for one-half of the private secondary school tuition debt incurred by the parties' son when he attended a private high school for nine months. The 1998 stipulation provided: "Prior decrees in this matter shall remain in full force and effect, except as modified herein, " and further, "The parties shall contribute to [their son's] post secondary educational expenses to the best of their ability." The respondent has cited no provision of the 1998 stipulation that addresses secondary school expenses. The permanent stipulation executed by the parties in 1990 provided: "The [respondent] further agrees that he shall pay 50% of any and all educational expenses for the benefit of the parties' minor child." In the absence of language in the 1998 stipulation specifically addressing the payment of private secondary school expenses, we find no error in the trial court's ruling. See In the Matter of Larue & Bedard, 156 N.H. 378, 381 (2007) (permanent stipulation reflects contractual agreement between the parties to which principles of contract law apply).

Affirmed in part; vacated in part; and ...


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