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In re Simano

Supreme Court of New Hampshire

July 12, 2011

In the Matter of Suzanne Simano and Jeffrey Simano

UNPUBLISHED OPINION

The respondent, Jeffrey Simano, appeals an order of the trial court finding him in contempt for failing to pay one-half of the daycare expenses incurred for the parties' children following approval of the parties' proposed divorce decree and requiring that he reimburse the petitioner, Suzanne Simano, for those expenses. He argues that the trial court erred because no order existed that imposed this obligation upon him. We affirm in part, reverse in part, vacate in part, and remand.

The contempt power is discretionary; the proper inquiry is not whether we would have found the respondent in contempt but whether the trial court unsustainably exercised its discretion. In the Matter of Stall & Stall, 153 N.H. 163, 168 (2005). Therefore, we turn first to whether the trial court erred in finding that the respondent had an obligation to pay one-half of the children's day care expenses under the parties' divorce decree.

The court's powers in custody, maintenance and education of children in divorce and separation cases are conferred entirely by statute. In the Matter of Scott & Pierce, 160 N.H. 354, 358 (2010). Trial courts have broad discretion in divorce cases; we will affirm the trial court's rulings absent an unsustainable exercise of discretion or error of law. Id. The party challenging the court's order has the burden of showing that the order was improper and unfair. Id.

In this case, the trial court's finding that the respondent was in contempt was based upon its subsidiary finding that he failed to pay one-half of the day care expenses despite knowing of his obligation to do so. The trial court specifically found that the respondent knew at the time of his divorce that his child support obligation was being reduced based upon his contribution toward the day care expenses. The trial court also found that the parties' divorce decree, parenting plan and uniform support order "fail[ed] to make any reference to the obligation to pay for day care for the children." The trial court went on to find, however, that the child support guidelines worksheet "clearly indicates that Mr. Simano was given credit for paying monthly day care of $500.00."

The question before us, then, is whether the trial court erred in considering the child support guidelines worksheet. We conclude, based upon the record before us, that it did not. The Uniform Support Order, which was executed by both parties, specifically provided that the order "complies with the child support guidelines." The child support guidelines worksheet gave the respondent a $500 credit for day care expenses. While it might have been the better practice to have specifically referenced this credit in Paragraph 21 of the Uniform Support Order ("Variation to standing order (specify paragraph #), additional agreement or order of the Court:"), the trial court did not err in concluding that its omission was not fatal to the petitioner's claim. After implicitly finding that the uniform support order would not comply with child support guidelines absent this day care credit, the trial court considered the actual child support worksheet. See In the Matter of Salesky & Salesky, 157 N.H. 698, 703 (2008) (construing several subsidiary documents to interpret court order).

The respondent also argues that the trial court erred in finding him in contempt because no order required him to pay day care expenses. We have previously held that "[i]t is a prerequisite to the exercise of the civil contempt power that the underlying order clearly describe what the alleged contemnor must do to avoid the sanction." Dover Veterans Council v. City of Dover, 119 N.H. 738, 740 (1979). Although the trial court found that the respondent was aware that his child support was being reduced based on his contribution toward the day care expenses, and there is evidence in the record to support this finding, given the absence of an order that specifically required such payment, we cannot conclude that the trial court's exercise of discretion in finding him in contempt was sustainable.

Because we are unable to determine whether the trial court's award of attorney's fees to the petitioner was based solely on this contempt finding, we vacate the award and remand to allow the court to take such further action as it deems necessary.

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


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