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In re Katsoulis

Supreme Court of New Hampshire

December 13, 2013

In the Matter of George Katsoulis and Mavrone Katsoulis

Issued the following order:

The respondent, Mavrone Katsoulis (Mother), now Mavrone Alt, appeals an order of the trial court that modified the parties' child support obligations. She argues that the trial court erred in: (1) "failing to make provisions for the child's support during the year between the ex-parte and the final child support hearing"; (2) calculating the amount of income to be imputed to the petitioner, George Katsoulis (Father); and (3) denying her motion to compel. The Father has filed a cross-appeal. He argues that the trial court erred by: (1) imputing income to him; and (2) denying his request for statutory interest on the child support arrearage owed by the Mother, retroactive to the date each support payment became due. We vacate and remand.

The parties were divorced in 2000; they had two minor children at that time. In 2001, the Father was awarded primary residential responsibility for the parties' son. In February 2011, the Father was charged with assault after an altercation with the parties' son. The Mother filed an emergency ex-parte petition to modify, requesting inter alia that: (1) she be awarded residential responsibility for the parties' son; (2) her child support obligation be vacated; and (3) the Father be ordered to pay child support to her. The court issued a temporary order awarding her primary residential responsibility. No ruling was made on her request for child support. In April 2011, the Mother filed a "motion for orders on child support, " in which she requested that her support obligation be vacated and that the Father be ordered to pay child support. In response, the court issued the following order: "[Mother's] support obligation is suspended, not vacated, pending further hearing." After a hearing on the merits on February 14, 2012, the trial court issued an order in April 2012 that set the Father's child support obligation at $300 per week, commencing February 14, 2012. The Mother filed a motion to reconsider, which was denied by the trial court. This appeal and cross-appeal followed.

Trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of Lister & Lister, 162 N.H. 48, 50 (2011). Because the trial court is in the best position to determine the parties' respective needs and their respective abilities to meet them, we will affirm child support modification orders absent an unsustainable exercise of discretion. Id.

We turn first to the Mother's argument that the trial court erred in "failing to make provisions for the child's support during the year between the ex-parte and the final child support hearing." We agree. The record before us indicates that the Mother first requested a modification of the parties' respective child support obligations in her February 2011 motion. The Father filed a response in which he asked the court to deny the Mother's request that she be awarded sole residential responsibility for their son. Although the trial court issued an order dated February 23, 2011, that allowed the Mother to return to her home in Texas with her son, the order made no provision for child support. It is undisputed that the Father was employed during the year between the time when primary residential responsibility was awarded to the Mother and the February 2012 final hearing. We note that the proffer made by counsel for the Father at the February 2012 hearing included the following: "And we calculated that during that time frame if you were inclined to award retroactive child support [to the Mother] it would be $15, 496, slightly higher because of the health insurance issue but nonetheless $15, 496 on our calculation." Based on the record before us, we conclude that the trial court unsustainably assigned no child support obligation to the Father during the first year when the parties' son resided with the Mother.

We turn next to the parties' respective arguments about the trial court's imputation of income to the Father. See RSA 458-C:2, IV (Supp. 2013). The Father argues that because the court did not find that he was "voluntarily unemployed, " it erred in imputing income to him. Whether a party is voluntarily unemployed is a question for the fact finder, whose decision will not be disturbed on appeal if supported by evidence in the record. In the Matter of Muller & Muller, 164 N.H. 512, 521 (2013). In support of its child support award, the trial court found: "The reliable evidence disclosed that [the Father] is employed sporadically as a contract employee. He is seldom without employment for significant periods. At the time of the [February 14, 2012] hearing, his employment contract ended February 1, 2012. When he is working, he has substantial earnings. The court has imputed income of $60, 000 annually to the Petitioner."

Although the record supports both the trial court's finding that the Father has a history of sporadic but reliable employment and its consequent imputation of income to him, the trial court's order does not provide an explanation for its decision to set the amount of imputed income at $60, 000. Nor are we able to discern from the record the basis for its decision. Accordingly, we vacate that portion of the trial court's order that established the amount of $60, 000 as the income to be imputed to the Father.

The Father also argues that the trial court erred in denying his request for statutory interest on the child support arrearage owed by the Mother, retroactive to the date each support payment became due. In his request for findings and rulings submitted at the 2012 hearing, the Father sought interest on child support arrearages that dated back to 2005.

The record before us reflects that, in January 2010, the parties filed a "joint motion to bring forward and modify child support order currently in effect" that stated: "The current arrearage [owed by the Mother] totals $41, 974.00." The motion made no reference to any claimed interest. In response to this motion, the court issued an order in February 2010 that modified the parties' child support order in accordance with the relief requested in the parties' joint motion. The order provided in relevant part that the Mother "will pay $400 per month in total child support . . .; $200 per month will be credited toward the current arrearage of $41, 974.00 and $200 per month will be attributable to current child support."

We have held that child support payments that are due and payable are judgments, and as such, accrue interest. In the Matter of Giacomini & Giacomini, 151 N.H. 775, 777 (2005). Although we agree that, in this case, the trial court erred in not determining and awarding the interest that had accrued on the child support arrearage, we disagree with the Father's assertion that interest is due retroactive to a date preceding the parties' 2010 agreement. The parties were free to address their respective obligations as part of their joint motion in 2010. Accordingly, upon remand, interest due on child support arrearage should be calculated from the date of the February 2010 order.

For all of the foregoing reasons, we vacate the order of the trial court and remand this case for such further proceedings as it deems necessary to address the issues raised in this order. We note that the parties' child is now nineteen years of age. Given the circumstances of this case, we encourage the parties to attempt to resolve the issues addressed herein without further judicial intervention.

Vacated and remanded.

DALIANIS, C.J. and CONBOY and LYNN, JJ, ...


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