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.