Over the years, I have had several clients come to me with issues regarding the retroactivity of a child support modification. These situations have included circumstances such as informal modifications of child support which were never filed with the court to demands from the other parent to make a modification retroactive to the date of a substantial change, such as a child turning 18 or graduating from high school, without any pending petition to modify. There is an easy answer, which often results in a difficult situation.

A child support order cannot be modified prior to the date that the party receives notice of the petition for modification. RSA 458-C:7 defines “notice” as either service as specified in the civil account or acceptance of a copy of the petition by certified mail receipt. The trial court may, however, order modification prospectively from the date of service forward. If it takes months, or even a year, to conduct a hearing and issue an order, either party runs the risk of the modification dating back to the time of service.

There is however a small narrow exception contained in the case law. In the case of In Re Nicholson the New Hampshire Supreme Court held that due to specific language in the parties divorce decree and uniform support order the child support could be modified retroactively to the time of the substantial change in circumstances (in this case a child becoming ineligible). In this case, the child support order had specific language as follows:

Unless the court … specifies differently, the amount of a child support obligation stated in the order for support shall remain as stated in the order until all dependent children for whom support is provided in the order shall terminate their high school education or reach the age of 18 years, whichever is later, or become married, or become a member of the armed forces, at which time the child support obligation terminates without further legal action. This amount shall remain as specified unless a legal order expressly allocates the payments on a per child basis.

This language is no longer in the standard uniform support order. Now, the SO -3C reads:

The effective date of any modification shall be no earlier than the date of notice to the other party. “Notice” means either of the following: 1) service as specified in civil actions or 2) the respondent’s acceptance of a copy of the petition, as long as the petition is filed no later than 30 days following the respondent’s acceptance.

Notwithstanding the narrow exception contained in Nicholson, it is very important that any agreements to modify child support be signed and filed with the court for approval. It is likewise critical that when a substantial change occurs, the petition must be filed immediately to preserve the ability to modify child support. Without taking these steps, a party could end up owing a substantial debt in child support when the other party seeks enforcement of the order rather than the informal agreement or the obligor has sat on their right to modify and must continue to pay at the higher rate of support. 
 

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. 

 

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.

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.  

           

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. 

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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, 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. 

 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.

 

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.

 

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