In re Silva

171 N.H. 1

188 A.3d 285

In the MATTER OF Vivian SILVA and Robert Silva

Nos. 2016–0478

2017–0063

Supreme Court of New Hampshire.

Argued: October 26, 2017

Opinion Issued: June 8, 2018

Law Offices of Lydon & Richards, P.C., of Nashua (Edward W. Richards on the brief and orally), for the petitioner.

Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief and orally), for the respondent.

BASSETT, J.

In 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 and remand.

The 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.

The 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.

Subsequently, 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.

I. Child Support

The 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.

We will 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, 13 A.3d 330 (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, 787 A.2d 175 (2001).

New 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, 13 A.3d 330. 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, 13 A.3d 330. 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, 879 A.2d 1144 (2005) ; see RSA 458–C:4, II.

RSA 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, 938 A.2d 89 (2007). Additionally, the trial court must consider any special circumstances "in light of the best interests of the child." RSA 458–C:5, I.

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 application of the child support guidelines based upon the parenting schedule, the court "may" consider three factors:

(A) Whether, in cases of equal or approximately equal residential responsibility, the parties have agreed to the specific apportionment of variable expenses for the children, including but not limited to education, school supplies, day care, after school, vacation and summer care, extracurricular activities, clothing, health insurance costs and uninsured health costs, and other child-related expenses.

(B) Whether the obligor parent has established that the equal or approximately equal residential responsibility will result in a reduction of any of the fixed costs of child rearing incurred by the obligee parent.

(C) Whether the income of the lower earning parent enables that parent to meet the costs of child rearing in a similar or approximately equal style to that of the other parent.

RSA 458–C:5, I(h)(2)(A)–(C).

The trial court justified the respondent's adjusted child support obligation on three grounds related to the factors enumerated in RSA 458–C:5, I(h)(2). The petitioner challenges all three grounds for the trial court's decision. The petitioner first argues that the trial court erred because there was "no factual basis" for its adjustment under subparagraph I(h)(2)(A). The respondent counters that the trial court's deviation was sustainable because it apportioned "the majority of financial responsibility for several child-related expenses" to the respondent, and it specified written reasons justifying the deviation. We agree with the petitioner.

Here, the trial court justified its deviation from the guidelines not upon the parties' agreement to apportion variable expenses, but rather, upon its own apportionment of expenses. Cf. RSA 458–C:5, I(h)(2)(A). Neither party asserts that the trial court erred when it considered its own apportionment of expenses—as opposed to an apportionment of expenses agreed to by the parties—as a special circumstance under RSA 458–C:5, I(h)(2). Accordingly, for the purposes of this appeal, we assume that a court-ordered apportionment of expenses is a special circumstance that may be considered pursuant to RSA 458–C:5, I(h)(2). Nonetheless, we conclude that the trial court's findings were insufficient to justify a deviation.

The court found that, during his parenting time the respondent assumed the cost of child care, sustenance, transportation, clothing, and other variable expenses. In addition to these costs assumed by the respondent, the court apportioned to him two-thirds of the cost of school supplies and seventy-five percent of the cost of health insurance deductibles and co-pays. It also required him to pay seventy-five percent of the cost of any extracurricular activities and summer programs for the children, subject to the condition that both parties agree to the activity or program. The trial court further provided that each party is responsible for all child care costs and vacation costs incurred during their respective parenting times.

The trial court did not analyze the economic consequences of its apportionment of variable expenses or the respondent's assumption of responsibility for other variable expenses, or explain how the division of expenses made the application of the guidelines "unjust or inappropriate." RSA 458–C:4, II; see Forcier, 152 N.H. at 465, 879 A.2d 1144 (holding that "the trial court's simple statement that the ‘remainder of child support obligation will continue to go to the college trust fund for the children’ was not legally sufficient to explain what ‘economic consequences’ result[ed] from this payment and why it [was] consequently appropriate and just" to enter a downward deviation). The trial court's recognition that responsibility for certain variable expenses had been apportioned to, or assumed by, the respondent, without findings as to why this apportionment made adherence to the guidelines unjust or inappropriate, is insufficient, as a matter of law, to...