The opinion of the court was delivered by: Hicks, J.
9th Circuit - Goffstown Family Division
The appellant, Rose Marie Wall (Mother), appeals a ruling of the 9th Circuit - Goffstown Family Division (DeVries, J.) dismissing her petition requesting the court to find the appellee, Christian A. Poulin (Father), in contempt of a court order. We reverse and remand.
The record supports the following. The parties divorced in October 1996 and entered into a permanent stipulation, which was incorporated, by reference, into the divorce decree. The stipulation included the following provision, in which the parties agreed to contribute to their two children's college expenses:
The parties agree to contribute to their children's college education to the extent each party is financially able. The actual contributions shall be determined when each child is near college age. A child, entering college, in the first instance, however, shall apply for financial aid or use her own savings for said expense. Both parties shall cooperate in completing any financial aid application.
Their younger daughter was accepted at Southern New Hampshire University. She received a scholarship, as well as a loan covering a portion of the cost for tuition and room and board for the 2011-2012 academic year. The Mother requested that the Father contribute 75% of the remaining costs. The Father responded by offering to pay some amount, but the parties could not agree on the amount and the Father has not yet contributed to the younger daughter's college expenses at all.
The Mother then filed a "Petition to Bring Forward and for Contempt," requesting the court to find the Father in contempt of the college expense provision of the divorce decree, and apparently asking the court to enforce the provision from the parties' stipulation. The Father objected and moved to dismiss, arguing that the petition should be dismissed because "there is no Court order or decree that orders [the Father] to contribute a set percentage or specific dollar amount to" their younger daughter's college expenses. After a hearing on July 18, 2011, the trial court dismissed the Mother's petition because "[t]he provision at issue in the parties' divorce decree lacks specificity." In support of its ruling, the trial court cited In the Matter of Scott & Pierce, 160
N.H. 354 (2010). This appeal followed.
"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 Johnson & Johnson, 158 N.H. 555, 558 (2009) (quotation omitted). We afford broad discretion to the trial court in divorce matters, and will not disturb the trial court's rulings regarding child support absent an unsustainable exercise of discretion or an error of law. Id.
On appeal, the Mother argues that the trial court erred in ruling "that it did not have the authority to enforce the [college expense] provision in the parties' [divorce decree]" because the provision "clearly provide[s] that each parent [will] contribute to the children's college expenses to the extent each party is financially able after financial aid, scholarships and any children's savings are considered." The Father asserts that our decision in Scott, 160
N.H. at 365-66, set forth a bright line rule of law that "absent a set percentage or specific dollar amount, trial courts cannot issue new orders regarding college expenses."
At the time the parties divorced, the trial court had "'broad discretionary' powers to order divorced parents to contribute to their children's college expenses under RSA 458:17, I (Supp. 2003) and RSA 458:20 (1992)." In the Matter of Donovan & Donovan, 152 N.H. 55, 61 (2005). However, in 2004, the legislature amended RSA 458:17 to provide that "[n]o child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school." RSA 458:17, XI-a (2004) (recodified as RSA 461-A:14, V (Supp. 2011)); see also Donovan, 152 N.H. at 61. Shortly after the 2004 amendment was enacted, we decided that it does not apply retroactively and, therefore, "does not mandate the trial court to vacate [a] provision in [a pre-existing] divorce decree that requires [parents] to contribute to their children's college education." Donovan, 152 N.H. at 62-64. Since then, we have consistently reaffirmed that the amendment does not apply retroactively. See, e.g., Scott, 160 N.H. at 365; In ...