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In re Doherty

Supreme Court of New Hampshire

April 1, 2016

IN THE MATTER OF HOLLY DOHERTY AND WILLIAM DOHERTY

Argued: October 21, 2015

10th Circuit Court-Brentwood Family Division

Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor on the brief and orally), for the petitioner.

Shaheen & Gordon, P.A., of Manchester (Jared O’Connor on the brief and orally), for the respondent.

BASSETT, J.

The 10th Circuit Court–Brentwood Family Division (Luneau, M., approved by LeFrancois, J.) issued orders after the respondent, William Doherty (Husband), filed a petition to modify his child support and alimony obligations. Husband and the petitioner, Holly Doherty (Wife), both appeal. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand.

The relevant facts are as follows. The parties divorced in January 2010. They had two minor children at that time. They entered into a stipulation, which was incorporated into the divorce decree that the trial court approved; in the stipulation, they agreed upon, among other things, the amount of monthly alimony and child support to be paid by Husband.

In July 2014, after one of the parties' children had reached majority, Husband filed a petition seeking a modification of his child support and alimony obligations. Thereafter, Wife filed a motion for contempt, in which she asserted that Husband had significant child support and alimony arrearages. Following a hearing in August 2014, the trial court issued the orders that are the subject of this appeal; in the orders, the trial court modified Husband's child support and alimony obligations and determined the amount of arrearages that he owed.

I. Wife's Appeal

Wife argues that the trial court erred by: (1) including foster care payments that she received in her gross income for the purpose of modifying Husband's child support and alimony obligations; (2) terminating Husband's ongoing alimony obligation; and (3) concluding that it, a family division court, lacked jurisdiction to enforce the parties' agreement to share equally in certain litigation costs. "We will uphold an order on a motion to modify a support obligation absent an unsustainable exercise of discretion." In the Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010). We sustain the findings and rulings of the trial court unless they are lacking in evidentiary support or tainted by error of law. Id.

A. Foster Care Payments

Turning to Wife's first argument, we provide the following background. In their stipulation, the parties agreed that, each month, Husband would pay Wife approximately $3, 400 in child support and approximately $1, 600 in alimony, for a monthly total of $5, 000. They further agreed that alimony would continue for 15 years, and that if the child support obligation was reduced, alimony would be increased so as to maintain a total payment of $5, 000 per month.

When deciding whether to modify Husband's child support and alimony obligations, the trial court found that, at the time of the parties' divorce, Wife's employment income was approximately $17, 500 per month. However, at the time of the hearing in 2014, the trial court found that her monthly income comprised approximately $3, 600 in employment income and approximately $5, 700 that she received "as a care provider for [two] disabled adults who reside[d] in her household."

After deciding to include the foster care payments in Wife's current income, the trial court concluded that it would be "fair and equitable" for Husband to pay $968 per month in child support pursuant to the child support guidelines. The trial court further determined that, because there had been a "substantial and unforeseen change in circumstances, " a modification of alimony was justified. Given the change in the parties' incomes and expenses, a reduction in Wife's monthly mortgage payment, and Husband's inability to pay alimony in addition to child support and arrearage payments, the trial court decided to terminate Husband's ongoing alimony obligation. Both of these modifications were made retroactive to July 14, 2014 - the date that Wife filed an objection to Husband's petition for modification, in which she sought enforcement of Husband's child support and alimony obligations. See RSA 458-C:7, II (2004) ("Any child support modification shall not be effective prior to the date that notice of the petition for modification has been given to the [opposing party].").

On appeal, Wife argues that, because the foster care payments that she received were "use[d] to clothe, feed and shelter the disabled adults in her care, " those funds should not have been included in her gross income for the purposes of modifying Husband's child support obligations. In making this argument, she relies upon the definition of "gross income" under RSA 458-C:2, IV (2004), the definition of income under the federal tax code, and cases from other jurisdictions. Husband counters that the foster care payments were properly included in Wife's income because they constituted "gross income" under RSA 458-C:2, IV. Additionally, he asserts that the federal tax code's treatment of these payments has no bearing on whether they constitute "gross income" under New Hampshire law.

Resolving this issue requires us to engage in statutory interpretation, and, therefore, our review is de novo. See In the Matter of Woolsey & Woolsey, 164 N.H. 301, 303 (2012). We are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. In the Matter of Hampers & Hampers, 166 N.H. 422, 433 (2014). We interpret legislative intent from the statute as written, and we will not consider what the legislature might have said or add words that the legislature did not include. Id. We interpret statutes in the context of the overall statutory scheme and not in isolation. Id.

"Gross income" is defined, in relevant part, as:

all income from any source, . . . including, but not limited to, wages, salary, . . . and payments from other government programs (except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security ...

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