Maves and Moore: What Constitutes Income for Child Support Purposes?

The New Hampshire Supreme Court issued in the Matter of Janice E. Maves and David L. Moore on August 14, 2014

The Facts

Husband and Wife divorced in 2004.  At the time of the divorce, Husband was awarded the parties’ Farm, which was initially used as a commercial campground and contained condos that were rented seasonally. The Farm was an S-type corporation, with Husband as primary shareholder.  At the time of the divorce, Husband was ordered to pay $650 per month in child support for their only child, which was increased to $950 in 2008.  The parents shared parenting time.

In 2011 Husband changed the Farm’s business model to condo sales.  As a result, the Farm’s 2011 tax return showed an income of $1,000,389 as capital gains.  Husband gave himself a line of credit from the corporation.  As a result of the increase in the Farm’s capital gains and the extended line of credit, Wife sought an upward modification of child support based on materially changed circumstances.  Husband argued that capital gains are not income for the purposes of child support, and even if they were, the Farm, not Husband, earned the capital gains.  Family court disagreed with Husband and increased his monthly child support payments to $2,411.  The Court also ordered Husband to pay $9,644 in arrears.  The Court based this finding on a conclusion that the Farm’s capital gains were irregular income that should be included in Husband’s gross income.  The Court used Husband’s adjusted gross income to calculate support.

The Appeal

Husband and Wife both appealed.  Wife argued that the line of credit should be counted as income, the capital gains should be “regular” income, and family court should have used gross income minus legitimate business expenses in determining Husband’s income, not adjusted gross income.  Husband argued that the Farm’s capital gains were not his income or personal profits, the Farm was part of the divorce settlement and therefore not able to be the basis for child support payments, that capital gains were not income for the purposes of child support calculations, and that the amount he was ordered to pay was grossly excessive.

The Holding

The Supreme Court held that capital gains are considered income for the purposes of child support calculations. The Court also held that the line of credit was not income, because “[t]he capital gains were treated as [Farm] funds, which, in turn, [Husband] drew down as a line of credit.”  The Court further held that although the Farm was awarded to Husband as part of a property settlement, it was a business, and therefore any capital gains were income for child support purposes.  Lastly, the Court held that courts should not solely rely on a payer’s adjusted gross income on tax returns to prove income.  Rather, the Court held that the “proper measure of gross income is to deduct legitimate business expenses from business profits.”

The Takeaway

There have been many cases over the years arguing about what income may be used for child support purposes. It is worth reading the definition provided in RSA 458-C:2,IV.   

"Gross income'' means all income from any source, whether earned or unearned, including, but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, alimony, business profits, pensions, bonuses, 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 income, food stamps, and general assistance received from a county or town), including, but not limited to, workers' compensation, veterans' benefits, unemployment benefits, and disability benefits; provided, however, that no income earned at an hourly rate for hours worked, on an occasional or seasonal basis, in excess of 40 hours in any week shall be considered as income for the purpose of determining gross income; and provided further that such hourly rate income is earned for actual overtime labor performed by an employee who earns wages at an hourly rate in a trade or industry which traditionally or commonly pays overtime wages, thus excluding professionals, business owners, business partners, self-employed individuals and others who may exercise sufficient control over their income so as to recharacterize payment to themselves to include overtime wages in addition to a salary. 

 

It is certainly an interesting argument to make that income derived from a business awarded to a party in a divorce is not income for the calculation of child support but rather property settlement. It was doomed to fail though, as the result would produce absurd result. Any self-employed person would avoid having their income considered for child support. A person’s investments that derive income would similarly be discounted. The intent and plain meaning of the statute is to capture all income for the purposes of child support. 

 

In re Deven O: Father rebutted presumption of abandonment in termination of parental rights

The Supreme Court issued In Re Deven O. on November 7, 2013.

The Facts

Deven was born in June 2006 and lived with his parents until they split up in December 2006. Deven lived with his mother and visited with his father a few days each month until December 2007, when father was arrested and incarcerated for armed robbery. Mother visited father in prison, but Deven visited just once. When father was released to a half-way house in June 2010, father visited with Deven multiple times per week over the next three months. In September 2010, mother told father that she did not want him visiting with Deven until he “straightened out his life.”

In October 2010, mother filed a petition to change Deven’s name. Although she knew father had been released from prison, she listed father’s address as the prison. Father found out about the name change in December 2010 after she posted about it online. Father contacted mother that month to arrange for Christmas gifts. In March 2011, father began to attempt to arrange for parenting time with Deven by calling mother. He also contacted mother’s father for help try to arrange visits. When these efforts failed, he filed a parenting petition in December 2011. Mother countered by filing a petition to terminate father’s parental rights.

Following a trial, the court terminated the father’s parental rights on the grounds of abandonment and failure to support, and made a finding that the termination was in Deven’s best interest. 

The Appeal

The father appealed the trial court’s decision, arguing that the evidence was insufficient to show, beyond a reasonable doubt, that there were grounds to terminate his parental rights. The father also asserted that he had no legal obligation to support the child because he was not listed on the birth certificate and there was no child support order. 

The Holding

The Supreme Court held that the mother failed to sustain her heavy burden and that there was insufficient evidence to support the termination of father’s parental rights. Parental rights are a fundamental liberty interest that cannot be pushed aside because a person has not been a model parent. The Court emphasized that a finding that six months passed without communication between the parent and child is only the first step in the analysis, and the trial court must consider the totality of the circumstances to determine whether the presumption of abandonment has been rebutted. The Supreme Court reminded trial courts to consider whether the parent's conduct "evidences a willingness to take on responsibility and concern for the child's physical and emotional care and well-being." Here, although there was a six month period without contact, the evidence of father’s repeated efforts to make contact with Deven prior to his filing of a parenting petition rebutted the presumption.

The Court also considered the mother’s refusal to allow access to the child. The Court looked to its opinion in In Re Sheena B., where the court determined that there could be no abandonment where the separation between a parent and child was caused solely by the other parent. Thus, the Court held, when considering the father's efforts to see Deven and the mother's refusal to allow the contact, that there was “insufficient evidence to support a finding of a settled purpose to abandon the child.”

The Supreme Court notes that the statute does not define, nor has the Court addressed, what it means to be “financially able” to provide a child with necessary subsistence, education or other care as RSA 170-C:5,II. However, here, the Court did not need to address this issue because it found that the evidence was insufficient to prove, beyond a reasonable doubt, that father was financially able but failed to support Deven.

The Takeaway

Deven O. was third in a string of termination of parental rights cases the New Hampshire Supreme Court issued opinions on in 2013. See In re Sophia-Marie H. & In re Faith T. All were private terminations where a parent or guardian sought termination of the rights of a parent (as opposed to DCYF initiated case). In each case, the Supreme Court emphasized that parental rights are “natural, essential, and inherent” within the meaning of the Constitution of New Hampshire and refused to terminate parental rights. Parental rights cannot be ignored because a person has not been an ideal parent.  These three cases act as a large neon caution sign for trial courts in termination proceedings.

Collecting electronic evidence: Is it Legal and/or Admissible?

Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

 

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.  

           

What to Bring to a Pretrial Hearing

Before your final trial, the court will conduct a pretrial hearing. Learn here what will happen at the hearing and what needs to be prepared and filed at the hearing. 

Parents May Agree on Enforceable Orders for Payment of College Expenses


Since 2004, the New Hampshire family courts lacked authority to order a parent to pay for college expenses, with the exception of enforcing orders and agreements made prior to 2004. As it was written then, RSA 461-A:14 (V) provided that “no child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school.” The New Hampshire Supreme Court later held in Goulart that the family court did not have subject matter jurisdiction to approve an agreement between to parents for the payment of college expenses.

 

Recent changes in the law now allow the family court to approve an agreement that provides for the payment of educational expenses beyond high school by one or both parents. Beginning on October 1, 2013, RSA 461-A:21 provides the family court with jurisdiction to approve and enforce new agreements for payment of college and educational expenses. Specifically:  

Parents may agree to contribute to their child's college expenses or other educational expenses beyond the completion of high school as part of a stipulated decree, signed by both parents and approved by the court. The agreed-on contribution may be made by one or both parents. The agreement may provide for contributions to an account to save for college, for the use of an asset, or for payment of educational expenses as incurred. Any such agreement shall specify the amount of the contribution, a percentage, or a formula to determine the amount of the contribution.

The new divorce decree court form provides sample language for an agreement in paragraph 4. However, the parenting decree court form has not been updated yet to include similar language, so parties will have to adapt their own if they want to include arrangements for college expenses. Parties must agree on whether the agreement is or is not modifiable based upon a substantial change in circumstances. The court form also requires parties to attend mediation before the court will hear a petition to modify or enforce an agreement on college expenses.  

This change is great news for New Hampshire parents. It allows parents to negotiate agreements based on their mutual shared interest in higher education for their children. Furthermore, parents can rely on their agreement and enforce when necessary. At the same time, parents who cannot agree are on equal footing with married parents and cannot be forced to pay for college for their children. 

Unbundled Legal Services

Unbundled legal services, also known as limited scope representation, allow you to hire a lawyer to do certain parts of your case, instead of the traditional soup to nuts representation. Some clients choose unbundled services because they cannot afford full representation, and some advice is better than no advice. Other clients feel capable of handling certain parts of the case, but need assistance with other portions.

Unbundled services can be customized to fit your needs, and can include

  • Representation at a specific hearing, such as a temporary hearing
  • Draft proposed orders or pleadings
  • Attending mediation
  • Assisting with discovery preparations
  • Consulting during your case to provide assistance and advice  

Payment arrangements for unbundled services can be tailored to the specific service. For example, paying a small retainer for ongoing advice, or paying for an hour at the end of a meeting to prepare documents.

Lawyers providing unbundled services will ask the client to sign a consent form that clearly spells out what services are, and are not, going to be provided, in addition to a fee agreement. 

2013 Child Support Guidelines

 The 2013 Child Support Guidelines have been released. Highlights of the new guidelines:

  • The guidelines are effective April 1, 2013
  • The self-support reserve has increased $31 from $1,070 in 2012 to $1,101 for 2013
  • For a couple with a combined gross income of $6,000, the total combined child support figure for one child increased from $1,147.90 to $1,174.51.

The Division of Child Support has a useful child support calculator that you can find here.

 

Modification of child support in New Hampshire

After a final order of child support is entered, either party may seek a modification at any time based on a substantial change in circumstances that has made the original order unfair and improper. A party may also seek a modification if more than three years has passed since the date of the final order without a need to show a substantial change in circumstances.  

Cases are always fact specific, and your situation may be different then the examples laid out here. Situations vary by income, expenses, new children and stepchildren, distance between the homes, or special needs of a child. The court hearing your case will examine the specific factual circumstances of your family to determine whether there has been a substantial change in circumstances that make the original order improper or unfair. Therefore, it is important to succinctly and accurately make your case for the modification.

Examples of situations that could warrant modification include:

  • Involuntary loss of employment.
  • Reduction or increase in income
  • Change in residential responsibility or parenting time.
  • Child graduating from high school or turning 18, while younger still children still require child support.
  • A parent returning to school. In Re Lynn.

There are several circumstances that the New Hampshire Supreme Court has ruled that modification of child support should be denied. Some of the circumstances include:

  • A parent’s relocation itself, without more evidence, is not a substantial change in circumstances sufficient to modify child support. In Re Adams.
  • The remarriage of either party does not as a matter of law warrant a modification of child support. Peterson v. Buxton.
  • Absent other circumstances, the expected growth of a child and normal cost of living increases are not substantial chances or special circumstances that justify modification. Morrill v. Millard.

 

New Family Division Judge and Marital Master Assignments

The following are the new judge and marital master assignments for family cases in the Circuit and Superior Court for January 2013 through March 2013:

 

1st Circuit


Colebrook

Hon. Paul D. Desjardins
(most of these hearings are held in Lancaster)


Berlin

To Be Determined 


Lancaster

Hon. J. Peter Cyr

2nd Circuit


Lebanon

Hon. Lawrence A. Macleod, Jr.


Littleton

Hon. J. Peter Cyr


Haverhill

Hon. J. Peter Cyr


Plymouth

Hon. Thomas A. Rappa

3rd Circuit


Conway

Hon. Pamela D. Albee


Ossipee

Hon. James R. Patten

4th Circuit


Laconia

Michael H. Garner, Marital Master

5th Circuit


Claremont

Hon. John J. Yazinski


Newport

Hon. Bruce A. Cardello

6th Circuit


Concord          

Nancy J. Geiger, Marital Master 
Henrietta W. Luneau, Marital Master
Michael H. Garner, Marital Master


Franklin

Nancy J. Geiger, Marital Master
Hon. Edward M. Gordon


Hillsborough

Hon. Edward B. Tenney


Hooksett

Hon. Paul S. Moore

7th Circuit


Dover

Robert J. Foley, Marital Master


Rochester

Hon. Susan W. Ashley
Robert J. Foley, Marital Master 


Cheshire Superior

Hon. John Kissinger 

9th Circuit


Manchester

Hon. Susan B. Carbon
Thomas G. Cooper, Marital Master
Hon. Sharon DeVries 
Bruce F. DalPra, Marital Master

Nashua

Hon. Julie A. Introcaso
Hon. Michael J. Ryan


Merrimack

Bruce F. DalPra, Marital Master
Hon. Clifford R. Kinghorn, Jr. 


Goffstown

Hon. Paul S. Moore

10th Circuit


Brentwood

Henrietta W. Luneau, Marital Master
Hon. David G. LeFrancois


Salem

Thomas G. Cooper, Marital Master


Derry

Hon. Lucinda V. Sadler


Portsmouth

Hon. Jennifer A. Lemire

 

In Re Lister: No credit on child support for SSI benefits received from child's disability

In May 2011, the New Hampshire Supreme Court issued its opinion In the Matter of Richard Lister and Marianne Lister.

The Facts

Father and mother have a disabled adult son who resides with mother. Doctors indicate that the son will always be dependent on others for care. Due to his disability, the son receives Supplemental Security Income (SSI) of about $450 per month (this amount is reduced from the maximum benefit of $674 due to child support that he receives and/or government housing payments). Pursuant to RSA 461-A:14, IV, the son, as a disabled adult, is entitled to child support.

In 2010, the mother filed for a modification of child support, and requested an increase in child support. The father, who did not dispute that his son was eligible for child support, requested a dollar for dollar credit on his child support payments, citing In the Matter of State & Taylor and In the Matter of Angley–Cook & Cook.

The trial court modified the father’s child support obligation, refusing the grant a dollar for dollar credit, and increased the amount of child support. The trial court distinguished the SSI benefits, pointing out that the son is the source of the benefits and not the father.

The Appeal 

The father appealed the trial court’s decision, arguing that State & Taylor and Angley-Cook & Cook are controlling, and require the trial court to grant him a dollar for dollar credit, regardless of whether the benefits derive from the child or the parent.

The Holding

The trial court did not err in refusing to grant a dollar for dollar deduction in child support from son’s SSI, because the SSI benefits derive from the child and not the father. The SSI payments replace some of what the son would have earned but for his disability, instead of replacing lost income of the father.

The Takeaway

While parents may receive a credit on child support when the child receives social security benefits derived from the parent, there is no deduction for benefits based on the child’s disabilities. The Supreme Court urges the trial court to consider that increases in child support can affect the child’s eligibility for SSI, as child support is considered in calculating entitlement and need.

The temporary hearing: A critical phase of your case

Continuing the series of You Tube videos, this edition discusses a very important hearing in your case: the temporary hearing. Watch to find out why, and what you need to do to be prepared and help achieve a good result.

Here are the forms you need for a divorce temporary hearing with children:

Thanks to Jeremy Collins at Ellipsis Entertainment, you were great to work with on this series!

Tips for Completing your New Hampshire Family Division Financial Affidavit

This blog has been a great way to reach out to people who need information about divorce, parenting and family law, and it has been a great experience hearing feedback from colleagues and watching the number of readers grow throughout the years. I hadn't considered branching out into You Tube until I read a blog post on Kevin O'Keefe's Real Lawyers Have Blogs called Are Law Firms Underutilizing You Tube? The idea of a audio/visual piece to this blog appealed to me. Much like I like to hear the audio tour in an art museum instead of reading all the tags next to a painting because it is easier to absorb the information, I think that a video can help convey information in a good way.  

So without further ado, the following is my first You Tube video on the topic of completing your financial affidavit.

Click here for the Financial Affidavit form for theNew Hampshire Circuit Court, Family Division.

Thank you to Jeremy Collins at Ellipsis Entertainment for being easy to work with and producing a great product.

Contempt of Court

Throughout my years practicing law and in my role as a guardian ad litem, I often hear misconceptions about contempt. Usually I hear statements along the lines of “I don’t want a criminal record” or “if I am found in contempt I will be arrested.” This post is intended to dispel some of these misunderstandings and to set the record straight.

Contempt can be civil or criminal, direct or indirect. The difference between civil or criminal lies in the purpose of the punishment. Direct or indirect contempt contrasts between acts committed either in the presence or outside of the presence of the court.

Civil Contempt

A finding of civil contempt results in an order that is remedial, coercive and for the benefit of the other party. The punishment is intended to force the contemnor’s compliance with court orders. Examples of the consequences of a contempt finding include money fines, orders directing compliance with the court orders, or even an indefinite jail sentence until the contempt is cured. It is often said that the contemnor “holds the key to the jail in his pocket” because curing the contempt will set him free. In family matters, motions for contempt are often brought for failure to pay child support, failure to abide by the parenting schedule, or selling or encumbering property in violation of a non-hypothecation order. Jail is a remedy of last resort, and one that usually only follows repeated, intentional refusals to abide by court orders or extreme behavior. The court will usually exhaust other remedies, such as payment of the other parties’ attorney’s fees, before sending a person to jail for civil contempt. A civil finding of contempt does not appear on a person’s criminal record.

Criminal Contempt

In contrast, a person who has been found in criminal contempt does not hold the keys to the jailhouse, and remedying the contempt will not set him free. The punishment is punitive, and intended to protect and preserve the dignity and authority of the court. Indirect criminal contempt proceedings must generally follow to procedural formalities of criminal proceedings. The defendant is entitled to reasonable notice, providing a date and time for the proceeding and warning that the contempt is considered criminal. The prosecutor must prove the elements of contempt beyond a reasonable doubt, and the contemnor is entitled to counsel and holds the right against self-incrimination. If the court intends to impose a sentence of greater than six months, the defendant has the right to a jury trial.

An example of criminal contempt, and the confusion that can result between criminal and civil contempt, is the New Hampshire case of Mortgage Specialists v. Davey. Mortgage Specialists sued the defendants for violation of trade secrets. Following a preliminary injunction, the defendants destroyed documents in violation of the court order. The court found the defendants in contempt, believing that they had thumbed their noses at the trial court’s authority and thwarted the dignity of the process, and issued penalties including attorney’s fees, fines and a penalty of three times the amount of profits unjustly reaped from the violation of trade secrets. The Supreme Court vacated the finding because the defendants were not provided notice that the contempt proceedings would be criminal.

Indirect Contempt

Indirect contempt is conduct that takes place outside of the presence of the court. The court does not have first-hand knowledge. Instead, the acts of contempt must be proved through evidence. An interesting case that distinguishes direct contempt versus indirect contempt is Kristen McGuire v. Suzanne Collins. In McGuire, a litigant in a custody matter arrived at the courthouse smelling of alcohol. The court security officer approached the litigant, and a state trooper performed a preliminary breath test. The results were not provided to the litigant, or her attorney. However, when she appeared before the court for the hearing, the judge informed her that she had blown a .20, well above the legal limit. However, the litigant displayed no disorderly behavior in the courtroom. The judge sentenced to litigant to 30 days in jail for direct, criminal contempt for appearing before the court in an inebriated state. However, the sentence was overturned by the Superior Court following a filing for a writ of habeus corpus because the family division judge had not personally observed the elements of contempt. Instead, the court had to rely on the observations of the court staff and the preliminary breath test conducted by the state trooper to prove the elements of contempt. Therefore, the court did not have direct knowledge and could not conduct summary proceedings resulting in the immediate incarceration.

Direct Contempt

Direct contempt takes place in the presence of the court where the judge personally observes all of the elements of contempt. The following is a perfect example of direct contempt from Maryland in the case of Patrick Smith v. State of Maryland:

THE DEFENDANT: What is the maximum on contempt, sir?

THE COURT: What is the maxim um on contempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is that correct . . . ?

[STATE’S ATTORNEY]: Yes.

THE COURT: Mr. Smith, I am not going to give you in excess of six months.

THE DEFENDANT: Let me tell you something.

THE COURT: What?

THE DEFENDANT: You say you won’t give me in excess of six months.

THE COURT: Yes.

THE DEFENDANT: You know what? You have been sitting up there in the trial in every hearing I have had for this far, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify --

THE COURT: I asked you if you had anything you want to say as to what sentence the Court should impose --

THE DEFENDANT: Yeah. You know what? You can give me six more months, motherfucker, for sucking my dick, you punk ass b itch. You should have a white robe on, motherfucker, instead of a black. Fuck you.

THE COURT: I find you in contempt again.

THE DEFENDANT: Fuck you in contempt again.

THE COURT: I find you three times in contempt --

THE DEFENDANT: Fuck you. And fuck.

THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve.

THE DEFENDANT: Yeah. You better leave now, you, Ku Klux Klan.

Other examples of direct contempt include assaulting another person in the courtroom or refusing to testify when ordered to do so. When direct contempt occurs, the court may skirt procedural formalities required of indirect contempt in light of the court’s direct knowledge of the contempt. The word “summarily” does not refer to the swiftness of the punishment, but rather the dispensing with the formalities that accompany a conventional trial such as service of process, notice of hearing, and submission of evidence. Instead, the court must give the contemnor oral notice of the contempt observed, an opportunity to speak in his defense, where after the court may issue a finding of guilty and pronounce sentence.  

Post Divorce To-Do List

The divorce is finally over, and it is time to move on. There are still some loose ends to tie up though, even after the divorce decree has issued. Not every item may apply to your case, but here are the most common things that should be on a newly single person's to-do list.

1. Update your life insurance and retirement account beneficiaries
2. Prepare a new will
3. Execute a quitclaim deed and record it at the registry of deeds to transfer the title of the house
4. Draft a QDRO, submit it to the court for approval and provide the order to the plan administrator
5. Resume your maiden name, and obtain a new social security card, driver’s license and debit and credit cards
6. Complete required paperwork to implement child support orders
7. Change your vehicle titles
8. Close all joint bank and credit card accounts
9. Make sure that COBRA benefits are in place and the necessary paperwork has been completed
10. Exchange personal property awarded to you or your former spouse

New Mandatory Self-Disclosure Rule takes effect December 1st in Family Division

A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

 

Family Division Rule 1.25-A applies to all new actions in the family division for:

 

·         divorce

·         legal separation

·         annulment

·         civil union dissolution

 

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

 

·         parenting petitions

·         child support petitions

·         petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

 

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

 

The rule obligates each party to provide the following documents to the other party:

 

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

 

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

 

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

 

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

 

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

 

i. The party,

ii. The party's spouse, and

iii. The party's dependent child(ren).

 

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

 

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

 

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).

 

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

 

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

 

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

 

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

 

Concord, we have a problem!

Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.  

Pending Legislation

 

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

  • HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.
  • HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.
  •  HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.  

 

Impeachment of Master Cross

 

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

 

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration."  The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

 

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

 

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

 

State Budget

 

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

 

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

 

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

 

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

 

Please write to Governor Lynch, and tell him how his proposed budget affects your family.

New Year, New Child Support Guidelines

On January 1, 2011, two pieces of legislation will go into effect modifying some aspects of the child support guidelines.

Allowable daycare expenses

 

The child support guidelines allow for a credit to a parent who pays daycare expenses that are “work-related”. Currently, allowable daycare expenses are capped at up to no more than an annual total of $5,000 for one child, $9,000 for 2 children, and $12,000 for 3 or more children. For one child, the cap translates to about $416 per month. HB 1993 expands the definition of “work-related” to include daycare required for a parent’s education and training. In addition, the new law will remove the cap on allowable expenses, allowing a parent to claim all work-related daycare in the guidelines calculations.

 

Self-support reserve

 

Child support orders require that the obligor be left with a self-support reserve, i.e. a sum of money that the obligor will have to support him or her before paying out child support. Currently, the self-support reserve is $903 per month. On January 1, 2010, HB 1216 increases the self-support reserve to $1,038 per month.

Shared parenting? No child support? Not so fast...

In New Hampshire, more and more parents share joint residential responsibility for children, sharing equally in the parenting time. Many people may assume that if parents share equally in the time with the children, then they will have equal expenses and therefore neither party would pay child support to the other. However, the general philosophy of the court system says not so fast. The law holds that equal parenting time in and of itself will not negate the obligation for child support. If two parents earn substantially different incomes, then the parent with the higher income is often ordered to pay child support to the other parent.

For example, John and Jane are divorcing. They have two children, and will share time with the children in a week on/week off schedule. John is a mechanic who earns $50,000 per year. Jane is a teacher’s aide, and earns $25,000 per year. The New Hampshire Child Support Guidelines, if John were the obligor (person paying the child support) would require child support in the amount of $1,051 per month. If Jane were the obligor, the guidelines would require her to pay $571 in child support per month. Often, a court will look at the difference between those to figures, in this case $480, and order the parent with the higher salary to pay that figure as child support to the other parent. Here, John’s child support liability is probably between $450 and $750 per month, depending on other factors like property division, debt, expenses for the children and alimony.

The statutory frame work for the child support guidelines, and adjustments to those guidelines, can be found at RSA 458-C. The court will consider the following specific factors in making an order for child support:

·         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.

·         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.

·         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.

If you are involved in a child support case, it is important to get the facts and information that you need for your case. Often, that means hiring an experienced and knowledgeable attorney to represent you in court. Please consider contacting Crusco Law Office, PLLC to explore your options for representation.

 

I/M/O Lynn: Returning to school may be a substantial change in circumstances to modify child support

Once a child support order has been approved by the court the modification statute, NH RSA 458- C:7, allows for a petition to modify the child support order after three (3) years have passed. If one party petitions for a modification before the three year mark they must show a substantial change in circumstances that makes continuing the original order improper and unfair.

The NH supreme court released an opinion on In the Matter of Lynn and Lynn on April 24, 2009 which deals with the substantial change in circumstances standard. In this case, when the Mother and Father got divorced, two children began residing with Father and one child with Mother. Mother became obligated to pay child support at a rate that deviated from the guidelines due to her limited income. Less than 3 years later, Mother petitioned to modify her child support obligation because she had been accepted to nursing school and was going to have to work part-time. The court granted the modification and ceased all obligations to pay child support.

The trial court specifically found that the Mother’s income while in school was a substantial change in circumstances and that even though the Mother is voluntarily underemployed it is only one factor to consider whether or not modification is warranted.

The Father appealed the decision to discontinue child support. The Father argued that by choosing to go to nursing school the Mother was voluntarily underemployed and therefore she should still be required to pay the child support. The NH Supreme Court held that the trial court followed the statute and therefore the trial court did not err in modifying the child support.

However, the court warned that this particular case is not meant to imply that a parent is entitled to reduced child support obligation whenever the parent has voluntarily reduced his/her income to attend school. The court mused that there could be circumstances when a parent goes back to school voluntarily and even with decreased income they must still pay the initial child support amount.

Marisa L. Ulloa, Crusco Law Office, PLLC Law Clerk, contributed to this post.

Tax considerations for divorcing couples

During a divorce, the tax consquences of a settlement often take a backseat to heated issues such as parenting rights and asset division. However, tax consquences can have a very big impact on the outcome of a case and are an important factor to consider.  Attorney Jason C. Brown of Brown Law Offices, P.A. posted an informative piece on his Minnesota Divorce and Family Law Blog with tax tips for divorcing couples. Attorney Brown suggested the following issues to consider during a divorce:

  1. Child Support. Child support is not income to the recipient and is not deductible for the payer. Keep this in mind if your spouse is seeking alimony. Child support payments that they receive are not taxable and, as a result, increase their net income each month dollar for dollar. As a result, the "need" of your spouse will be diminished and you may be able to argue that their imputed gross income exceeds their gross pay coupled with untaxed child support.
  2. Alimony. Alimony is income to the recipient and is deductible for the payer. High income earners can reduce their taxable income by paying alimony. If your spouse's tax bracket is low, the government winds up picking up the tab for a good share of the alimony obligation.
  3. Sale of Homestead. The sale of the marital homestead usually does not involve a taxable event. Capital gains (up to $500,000) from the sale of your marital homestead are not taxable if you've lived there for two of the last five years. Nor is a transfer of title to the residence, allowing your spouse to keep some or all of the equity. Many couples opt to forego alimony payments in, instead, pay a disproportionate property settlement to their spouse. In other words, they "buy off" alimony by giving a larger share of home sale proceeds, or equity, to their spouse. The result? No tax implications for either. Ideal for alimony recipients in a high tax bracket.
  4. Filing Status. The status of your marriage on December 31 of the relevant year determines whether you file as single or married. If you are divorced by that date, you file as single for the entire year. If your case appears to be coming to a close near the end of the year, best to speak with a tax preparer about the consequence of holding up at bit or expediting matters. We find that courts are usually willing to facilitate bringing matters to a close by the end of the year if tax implications in doing so are substantial.
  5. Dependents. While the law provides that the custodial parent is entitled to claim the relevant dependency exemptions, most couples agree to share them. Offering a non-custodial parent the right to claim the dependency exemption under the condition that their child support is current at the end of the relevant tax year provides them with incentive to keep current with payments.
  6. Child Care Credit. Custodial parents who incur work-related child care costs can deduct up to 30% of the cost. It is for that reason that the child support guidelines usually require a custodial parent to assume responsibility for a greater share of daycare expense.
  7. Liabilities and Refunds. Taxes owed, or refunds received, are usually treated as "marital" and are, therefore, split equally among the parties. In the heat of the moment, some spouses will intercept a tax refund and cash it without the other's knowledge. All funds must be accounted for and it is likely that if they do so their share of the final property settlement will be reduced proportionately. Because income is "marital," a tax liability is a shared responsibility.
  8. Attorney Fees. Any fees paid to a lawyer for tax advice are deductible. Ask your attorney for to break out all billable time devoted to tax issues and you can save big.

A good family law attorney will point out these and other issues to consider during your divorce. It is also important to discuss your divorce and the tax consquences of any settlement with a knowledgeable accountant.

Child support as an election issue?

Until today, I had never considered child support enforcement as an election issue, especially with all the hot topics in this year's presidential election. Usually issues such as the economy and the war in Iraq get all the press. However, I read a very interesting blog post from Attorney Stephen Worrall on his Georgia Family Law Blog titled Presidential Election 2008: About Child Support that discusses child support and enforcement issues in the election. Although family law matters are usually dealt with on a state level, there are family issues such as child support enforcement or abuse and neglect of a child that the federal government addresses on a national level.  Knowing where each candidate stands on these kind of issues can be an important part of the decision making process.

John McCain does not have child support issues listed on his campaign or Senate website, nor has he introduced legislation regarding it. However, Senator McCain does have a lenghty voting history compiled by Attorney Worrall.

In 1988 he voted in favor of the 1988 Family Support Act, which required each state to build a single, automated system for child support collection and distribution. Eight years later he supported further changes to the child support infrastructure, which were folded into the 1996 bill that overhauled welfare. The bill pressed automation requirements further, expanded states’ authority to establish paternity and toughened enforcement measures.      

McCain also was in the Senate when it passed the 1998 Child Support Performance Incentive Act with unanimous consent. It established five benchmarks for good performance on child support enforcement that states needed to meet to qualify for additional federal funding.

Barack Obama has included child support enforcement in his campaign platform and has directly spoken about issues such as responsible fatherhood. Attorney Worrall discusses a recent bill introduced by Senator Obama regarding child support enforcement:

The Responsible Fatherhood and Healthy Family Act, is sponsored by Obama and Democratic Sen. Evan Bayh of Indiana. In addition to restoring funding, it includes provisions to promote fatherhood and healthy parenting and bars states from treating imprisonment as “voluntary unemployment.” It also ensures all collections go to families, rather than to reimburse the state for money spent on welfare payments to the custodial parent and child.

 

 

 

Fontaine & Dunn: A parent who is incapacitated cannot be found to be voluntarily unemployed or underemployed

The NH Supreme Court released an opinion on August 21, 2008 In the Matter of Joanne Fontaine and Calvin Dunn holding that a parent who is physically or mentally incapacitated cannot be found to be voluntarily unemployed or underemployed and have income imputed to them for the purposes of child support.

The parties, who never married, are the parents of twin daughters. In 2001, the father suffered from a self-inflicted gunshot wound in the face which caused significant injury and several surgeries over the course of many years. In 2005, the mother filed a parenting and child support petition.

The trial court found that the father was physically incapacitated and was therefore limited as to the income he could earn. However, the court decided that his incapacity was caused by his own voluntary act and therefore ordered him to pay child support in an amount reflective of his past earnings. The father appealed, arguing that the ruling was contrary to the plain language of NH RSA 458-C:2, IV(a)

 

RSA 458-C:2, IV(a) states:   

 

The court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

 

Usually, this statute is applied in situations where a child support obligor is voluntarily unemployed or has taken a lower paying job for the purposes of lowering his or her child support obligation. For example, the nurse who takes a job delivering pizzas instead of a nursing position is not employing herself consistent with her earning capacity. The court would likely order the nurse to pay child support based upon her former earnings as a nurse, instead of her income delivering pizza.  

 

Here, the Court held that the plain language of the statute requires the trial court to find that a parent is not incapacitated before reaching the issue of voluntary underemployment. Therefore, the trial court erred in making a finding that the father was incapacitated and then ordering him to pay child support consistent with his earnings prior to his incapacity. Pursuant to the plain language of the statute and this Court’s holding in this case, once a court finds that a party is incapacitated, the analysis stops there and the court cannot find voluntary unemployment or underemployment.

 

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

Caveat Emptor: Buyer beware of do-it-yourself divorce kits

I read an interesting blog post today from Attorney Shannon Cavers of the Houston Texas Divorce & Family Law Attorney Blog. The blog reviews the buyer beware issues of do-it-yourself divorce kits. Attorney Cavers warns: "If you received a medical diagnosis requiring surgical intervention, you would not opt to operate on yourself. The same holds true in law."

Just this morning in the 311th District Court of Harris County, I personally witnessed a pro se litigant present a final decree of divorce. The source of the litigant’s forms were RapidLaw, an internet site offering divorce, adoption, and bankruptcy services across the U.S. 

The family law judges and court staff in Harris County bend over backwards to assist pro se litigants. However, they may not give legal advice to pro se parties. The forms were not prepared to properly dispense with the parties’ 401-K and retirement benefits. Apparently, the documents were insufficient enough to spur the judge urge the litigant to reconsider presentation of the decree as-is. The Judge asked the pro se party where she received the forms. Her response was Rapid Law. The Judge next asked the party if she paid for the forms, and she answered yes. Finally, the Judge directed the bailiff to photocopy the instructions from RapidLaw – presumably to present the information to the State Bar of Texas.

Whether you are downloading forms from one of the myriad of websites offering divorce documents or buying a kit from Barnes & Noble, the consumer should beware that a generic form usually cannot adequately address your unique situation within the confines of your state's specific rules and laws.

If you cannot afford an attorney, consider the following alternatives: 1) Hire an attorney for unbundled services to review or prepare documents for your case; 2) Utilize the New Hampshire Judicial Branch's self-help center for forms and information; or, 3) Call the New Hampshire Bar Association's law line held on the second Wednesday of each month from 6:00 p.m. to 8:00 p.m. at 800-868-1212.

 

Are uninsured medical expenses and extracurricular activities included in child support guildelines?

Clients often ask about including in their parenting plan a provision requiring both parents to contribute to a child’s extracurricular activity expenses and uninsured medical expenses. These issues were brought before the New Hampshire Supreme Court In the Matter of Cheryl Anne Coderre and Paul A. Coderre on September 30, 2002. The father appealed an by the trial court that ordered him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to the child support ordered under the child support guidelines.

First, the Court determined that uninsured medical expenses are extraordinary expenses that are not included in child support guidelines. The Court looked at the statute regulating child support RSA 458-C and determined that the calculations under the guidelines are presumed to be correct but that the court may adjust the guidelines either upward or downward if it deems this deviation is warranted. More specifically looking at RSA 458-C:5, I(a) which states that the trial court “may deviate from the guideline support amount if it finds that a child will incur ongoing extraordinary medical expenses.” Therefore, the Court upheld the trial court’s order for payment of uninsured health insurance.

Additionally, the Court held that “extracurricular activity expenses are part of basic guidelines support” because they fall into the same category of such basic support as food, shelter and recreation. Because there is no language to the contrary in the guidelines the Court concluded that extracurricular activity expenses are included in the parties’ total support obligation. Therefore, the Court reversed the trial court’s decision on this matter.

In sum, a court has discretion to award uninsured medical expenses that are separate from the child support award determined by the guidelines. On the other hand, extracurricular activity expenses are considered to be included in the child support guidelines and may not be awarded separately.

Blog credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

Donovan: Enforcing orders for contribution to a child's college expenses

On this blog, we review new domestic relations cases that are issued by the New Hampshire Supreme Court such as the recent Lemieux and Gendron and Plaistek opinions. However, there are many older opinions which are worth reviewing periodically. Here, we will review the case In the Matter of Tatjana A. Donovan and Robert F. Donovan which was issued on April 1, 2005.

The major crux of the case deals with a section of the stipulation which required both parties to contribute to their children’s educational expenses through college in an amount proportionate to their respective incomes. Robert asked the trial court to strike this portion of the parties divorce decree in light of the passage of House Bill 299, which provided: "No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school." RSA 461-A-14, V. The trial court refused, and Robert appealed the order.

The New Hampshire Supreme Court determined that as general rule statutes apply prospectively rather than retroactively. In other words, orders made prior to February 2, 2004, the day that the new statute became effective, that required a parent to contribute to a child’s college expenses were enforceable. Therefore, although no new orders may require contribution by a parent to a child’s college expenses, orders made prior to February 2, 2004 remain effective.

Blog Credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

New Hampshire child support formula

Child support in New Hampshire is calculated according to a formula set forth in RSA 458-C:3. The percentage of the parties’ income that will be the root of the calculation is based on how many children are receiving support.

Number of Children Percentage of Net Income 
1 = 25 percent
2 = 33 percent
3 = 40 percent
4+ = 45 percent

·           The total support obligation is calculated by multiplying the parents’ total net income by the percentage allocated for each child. You can find the definition of “net income” under RSA 458-C:2 VI.

·           Once the total support obligation is determined that amount will be divided between the parents in proportion to their incomes.

·           Parents’ income is adjusted in the formula for certain expenses that are allowed under the statute, such as child support obligations for other children, health insurance paid for the child(ren), state income taxes, and daycare expenses.  

·           There is a “self-support reserve” when calculating child support. The “self-support reserve” means the poverty level standard of need as established by the department of health and human services for a single individual living alone. If the paying parent's gross income is less than the self-support reserve and the court has determined that the parent is not voluntarily unemployed or underemployed, the court will order the minimum support order, which is $50.00. Additionally, if the paying parent’s gross income is greater than the self-support reserve, but the calculated support payment reduces the paying parent’s income below the reserve, the paying parent’s share is presumed to be the difference between the self-support reserve and the adjusted gross income but no less than the minimum $50.00 support order.

Where to get legal advice: An experienced attorney

I recently did a google search to see what came up for answers for "child support and college in New Hampshire." I came across a yahoo answers page in which somebody asked "do I have to pay child support when my child goes to college if I live in New Hampshire." It is a question that comes up often in family law, and a good question to ask.

However, answers at yahoo is not the place to get legal advice. There were a wide variety of "answers," many of which were completely wrong. One responder said "yeah you do because my sisters dad is going to have to pay for college when she goes" while another stated "you have to pay child support until they are done college. This uasually [sic] is standard. I am pretty sure that you only have to pay for only 4 years of college or university."

Generally, the law in New Hampshire is that child support ends when the child turns 18 or graduates from high school, whichever is later.  Yet, the answer to the question is not that simple. Sometimes, there may be a circumstance which can extend child support, for example if your child is disabled. Additionally, did the person asking the question mean to include college expenses as part of support, a question that depends on several things and that  was briefly reviewed in a prior post on this blog.

The correct answer for the yahoo forum, which a few of the responders did advise, is to call an experienced attorney who knows the law and can apply them to the facts in your case.  Do not seek legal advice from anonymous Internet users or your co-worker who recently went through a divorce. You might just get what you pay for.

Child support arrearages and the federal stimulus check

Attorney Robert L. Mues posted a great blog this morning about the economic stimulus check and child support arrearage. The IRS is treating the stimulus check like a tax refund. If you owe child support, the IRS is seizing or reducing the funds to apply to your arrearage.

Attorney Mues writes:

So what do you do if you and your spouse have filed a joint return and your spouse owes back child support if you want to avoid having the IRS seize your share? Well, you may fall in the category of what the IRS calls an “injured spouse”. To get your share of the stimulus payment, you can file Form 8379, Injured Spouse Allocation. You will then get your share of these payments, and your spouse’s share will be applied to his or her past-due federal or state income taxes or non-tax federal debt such as student loans and child support.

Child Support and Social Security Benefits

When a parent paying child support receives social security benefits, whether disability or retirement, those benefits are considered income for the purposes of determining child support. A dependent child of a recipient of social security receives dependent benefits, and the benefits are paid to the custodial parent. These benefits are an integral part of the parent's social security benefits, as they derive from the parents eligibility for the program and his past contributions into the program.

How are these dependency benefits treated for the purposes of child support? The New Hampshire Supreme Court ruled In the Matter of Denise Angley-Cook and John W. Cook that a parent with a child support responsibility is entitled to a dollar for dollar credit for any social security dependency benefits the other parent receives that are derived from their benefits.

Therefore, the Supreme Court held that the support should be calculated as follows:

"the amount of the . . . dependency benefits should be included in the income of the noncustodial parent and the guidelines should then be applied to that amount." Rosenberg, 697 N.E.2d at 991; see also Miller, 890 P.2d at 578. The noncustodial parent is then allowed a credit equal to the amount of the dependency benefits, and the net amount of the noncustodial parent's support obligation is the difference between the support amount determined by the court to be correct under the guidelines minus the amount of the credit. See Rosenberg, 697 N.E.2d at 991. An exception exists if the support amount determined by the court to be correct under the guidelines is less than the dependency benefits. See id. at 991 n.7 "In such case, the total support obligation is simply equal to the amount of the . . . dependency benefits, and the noncustodial parent would not owe any additional amount." Id.

Basically, the calculation boils down to everyone's income goes into the pot, and if the child support amount is less then the dependency benefits, there is no child support due from the obligor parent.

 

Prior voluntary acknowledgement of paternity precludes future genetic marker testing

The New Hampshire Supreme Court released an opinion today In the Matter of Kevin Gendron and Jody Plaistek that held that a voluntary acknowledgement of paternity executed in Massachusetts must be given full faith and credit and that the trial court erred in ordering genetic marker testing. The voluntary acknowledgement of paternity signed by both parents had all ready established the father as the legal father to the child, and therefore there was no need for further proof of paternity to establish parenting rights and responsibilities.

The court noted that it had made similar rulings in Watts v. Watts, which held that a father was precluded from seeking blood tests to disprove his paternity fifteen years after the children's births. In Watts, the court found that to allow the father to escape liability for support by blood tests would ignore his lengthy, voluntary acknowledgement of paternity. Here, the court noted that although the mother was seeking to disprove paternity, the result should not be any different than that in Watts.

Today's opinion should serve as a warning to anyone who voluntarily signs an acknowledgement of paternity. If there are any doubts or questions regarding paternity, seek legal counsel prior to signing the acknowledgment  because it may preclude the ability to reopen the issue of paternity in the future.

College expenses

Besides baseball and daffodils, spring is also the time for college financial aid applications. A recent post from Jennifer Weisberg Millner on the NJ Family Legal Blog regarding the responsibility of parents for their children's college expenses highlighted how different laws are from state to state. Although parents in New Jersey may be ordered to pay for their children's college tuition and expenses, in New Hampshire, no court order shall require a parent to pay for educational expenses beyond high school. However, under the NH Supreme Court's decision in Donovan, a court may enforce orders made prior to February 2, 2004 (the date that the law went into effect) that required a parent to to pay for college.