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In re Khaja

Supreme Court of New Hampshire

January 8, 2014

In the Matter of Humera Khaja and Syed Mohammed Rafi

ORDER

The respondent, Syed Mohammed Rafi, appeals the circuit court's order on his motion to modify the child support order issued in his divorce from the petitioner, Humera Khaja. The respondent argues that the trial court erred when it failed: (1) to find that the petitioner was voluntarily unemployed and to impute income to her as a result, see RSA 458-C:2, IV(a) (2004); and (2) to make findings as to the petitioner's current marital status and to impute a portion of her current spouse's income to her, see RSA 458-C:2, IV(b) (2004). We affirm.

Trial courts have broad discretion to review and modify child support awards. In the Matter of Donovan & Donovan, 152 N.H. 55, 59 (2005). They are in the best position to determine the parties' respective needs and their respective abilities to meet them. Id. Accordingly, we will set aside a modification order only if it clearly appears on the evidence that the court's exercise of discretion was unsustainable. Id.

RSA 458-C:2, IV(a) allows a trial court to impute income to a parent only if that parent is voluntarily unemployed or underemployed. However, the plain language of the statute does not mandate an express finding whether the parent is voluntarily unemployed. Donovan, 152 N.H. at 58. Whether a party is voluntarily unemployed is a question for the fact finder, whose decision will not be disturbed on appeal if it is supported by evidence in the record. Id. at 58-59.

In this case, the trial court's implicit determination that the petitioner was not voluntarily unemployed is amply supported by the record. The petitioner submitted an offer of proof that, when she relocated to California, her employer allowed her to work remotely for a three-month trial period. It did not go well, so she resigned her job because of pressure and problems at work. She had been unemployed for only two weeks at the time of the hearing and was actively hunting for a job. In fact, she had an interview scheduled later on the day of the hearing. There was no indication that she was attempting to avoid her child support obligations. See In the Matter of Bazemore & Jack, 153 N.H. 351, 356 (2006). Therefore we are satisfied that the trial court's implicit finding that the petitioner was not voluntarily unemployed was a sustainable exercise of its discretion.

The respondent argues that because the petitioner's "relocation . . . caused her to resign from her employment . . . the evidence does not support an implied finding by the trial court that the petitioner was not voluntarily unemployed." However, the respondent cites no authority, nor are we aware of any, that supports the proposition that the loss of a job as a result of a voluntary relocation constitutes voluntary unemployment. Cf. In the Matter of Sarvela & Sarvela, 154 N.H. 426, 436 (2006) (holding trial court erred to the extent it found parent voluntarily unemployed because he involuntarily resigned his job due to his own wrongdoing).

RSA 458-C:2, IV(b) directs the imputation of a current spouse's income to a parent who "resigns from or refuses employment or is voluntarily unemployed or underemployed." The statute does not mandate an express finding regarding a parent's marital status. In this case, the trial court's implicit determination that the petitioner was not remarried at the time of the hearing is supported by the record. The petitioner submitted an offer of proof that she "didn't go through with the wedding" and that "her potential wedding is on indefinite hold." The respondent's offer of proof was "[w]e're not sure of whether [the petitioner] is married or not. . . . we don't know [her] marital status." Based on this record, we cannot say that the trial court's implicit finding that the petitioner was not remarried was an unsustainable exercise of its discretion.

Affirmed.

HICKS, LYNN and BASSETT, JJ., ...


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