Argued: October 26, 2017
Circuit Court-Nashua Family Division
Offices of Lydon & Richards, P.C., of Nashua (Edward W.
Richards on the brief and orally), for the petitioner.
White & Fontaine, P.C., of Nashua (Israel F. Piedra on
the brief and orally), for the respondent.
these consolidated appeals, the petitioner, Vivian Silva,
appeals two orders of the Circuit Court (Introcaso,
J.) in her divorce from the respondent, Robert Silva. She
argues that the trial court erred when it: (1) deviated from
the child support guidelines, see RSA 458-C:5 (Supp.
2017); (2) inequitably divided the marital estate,
see RSA 458:16-a, II (2004); and (3) did not find
the respondent in contempt for withdrawing funds from an
education savings account, or "529 account, "
established for their daughter's benefit, during the
pendency of the divorce, and did not consider the 529 account
in its division of the marital estate, see 26 U.S.C.
§ 529 (Supp. 2017); RSA 458:16-a, III (2004). We vacate
record supports the following facts. In July 2016, following
a final divorce hearing, the trial court granted the parties
a divorce based upon irreconcilable differences. In the final
divorce decree, the trial court ordered an equal division of
the marital assets based upon a consideration of the factors
outlined in RSA 458:16-a. By agreement of the parties, the
petitioner was awarded the parties' real estate, where
the parties had resided and operated a bed and breakfast. The
trial court awarded other assets to the respondent to
equalize the award.
parties' final divorce decree also included an
agreed-upon parenting plan regarding the parties' two
children, which provided that the parties "shall have
equal or approximately equal residential
responsibility." At the time the trial court entered the
final divorce decree, it also entered a temporary Uniform
Support Order regarding child support. In that temporary
order, it denied the respondent's request to deviate from
the child support guidelines, and ordered him to pay full
child support to the petitioner.
the trial court held a final child support hearing and issued
a final order. The court ordered a downward deviation from
the child support guidelines, thereby reducing the
respondent's child support obligation from $1, 590.00 per
month to $533.80 per month. See RSA 458-C:5, I. The
trial court justified the adjusted support obligation on
three grounds related to the parties' shared parenting
schedule. See RSA 458-C:5, I(h)(2). The petitioner
filed motions to reconsider the property distribution order
and the final child support order, both of which were denied.
These appeals followed.
petitioner first argues that the trial court erred when it
deviated from the child support guidelines based upon the
parties' shared parenting schedule. We agree.
not disturb the trial court's rulings regarding child
support absent an unsustainable exercise of discretion or an
error of law. In the Matter of Laura & Scott,
161 N.H. 333, 335 (2010). "When we determine whether a
ruling made by a judge is a proper exercise of judicial
discretion, we are really deciding whether the record
establishes an objective basis sufficient to sustain the
discretionary judgment made." State v. Lambert,
147 N.H. 295, 296 (2001).
Hampshire's child support guidelines, codified in RSA
chapter 458-C (2004 & Supp. 2017), establish a uniform
system to determine the amount of child support awards.
Laura, 161 N.H. at 335. The purpose of RSA chapter
458-C is not only to ensure uniformity in determining the
amount of child support, but also to ensure that both the
custodial and non-custodial parents share in the support
responsibility for their children, according to the relative
percentage of each parent's income. Id. There is
a rebuttable presumption that a child support award
calculated under the guidelines is the correct amount of
child support. Id.; RSA 458-C:4, II (2004). This
presumption may be overcome, and the trial court may deviate
from the guidelines, when a party shows by a preponderance of
the evidence that the application of the guidelines would be
"unjust or inappropriate, " RSA 458-C:4, II,
because of "[s]pecial circumstances, " RSA 458-C:5,
I; Laura, 161 N.H. at 335-36. If the trial court
deviates from the guidelines, it must "make a written
finding as to why a special circumstance pursuant to RSA
458-C:5 justifies an adjustment from the child support
guidelines to avoid an unjust or inappropriate result."
In the Matter of Forcier & Mueller, 152 N.H.
463, 465 (2005); see RSA 458-C:4, II.
458-C:5, I, includes a non-exclusive list of special
circumstances that, if raised by a party or the court, the
court shall consider in making an adjustment that deviates
from the child support guidelines. RSA 458-C:5, I. Although
this list is non-exclusive, we have interpreted "special
circumstances" as including only circumstances that are
"economic in nature and relate to the impact of a
parent's financial condition upon his or her ability to
meet a child's needs." In the Matter of Carr
& Edmunds, 156 N.H. 498, 504 (2007). Additionally,
the trial court must consider any special circumstances
"in light of the best interests of the child." RSA
458-C:5 expressly identifies the parties' parenting
schedule as a special circumstance. RSA 458-C:5, I(h).
However, the statute provides that "[e]qual or
approximately equal parenting residential responsibilities
in and of itself shall not eliminate the need for
child support and shall not by itself constitute ground
for an adjustment." RSA 458-C:5, I(h)(1) (emphases
added). The statute further provides that, in considering
requests for adjustments to the ...