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In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-northern judicial district No. 2004-288 IN THE MATTER OF TATJANA A. DONOVAN AND ROBERT F. DONOVAN, JR. Argued: December 9, 2004 Opinion Issued: April 1, 2005 Bronwyn Asplund-Walsh, of Franklin, by brief and orally, for the petitioner. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the respondent. Duggan, J. The petitioner, Tatjana A. Donovan (the mother), appeals an order of the Superior Court (Barry, J.) reducing the amount of her former spouse's child support obligation based upon income imputed to her. The respondent, Robert F. Donovan (the father), cross-appeals, arguing that the trial court erred in refusing to modify the parties' permanent stipulation in their divorce decree. We affirm in part, reverse in part, vacate in part and remand. The parties divorced in May 2000 and received joint legal custody of their two minor children. The mother was awarded primary physical custody, while the father obtained residual custodial rights. The parties' permanent stipulation incorporated a uniform support order that required the father to pay $1,599 per month in child support to the mother, subject to annual adjustment for inflation using the Consumer Price Index (CPI). The father was required to pay an additional $150 per month for the children's extracurricular expenses. The parties also agreed to contribute to the children's educational expenses through college in an amount proportionate to their respective incomes at such time. On October 23, 2003, the father filed a petition to bring forward and modify the divorce decree under the three-year review provision of RSA 458-C:7 (2004). He sought to reduce his child support obligation based upon his diminished earnings and his former spouse's ability to earn an income. He also asked the trial court to strike portions of the parties' permanent stipulation relating to child support. The father is employed as a certified public accountant (CPA) at Ellacoya Networks in Merrimack. His monthly pay decreased by approximately $62 between 2000 and 2003. The mother home-schooled their children for four years prior to the parties' divorce and has continued to do so since, pursuant to the parties' agreement. Because of her homeschooling responsibilities, the mother has not engaged in full-time employment. The trial court granted the father's request to modify his child support obligation, thereby reducing his monthly payment to $1,590. The trial court denied his requests to terminate his monthly payment of $150 for the children's extracurricular activities and to eliminate the parties' obligation to make proportionate contributions to their children's college expenses. The court also upheld the provision of the uniform support order that annually adjusts the father's child support obligation for inflation as reflected by the CPI.
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In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr.

On appeal, the mother argues that the trial court erred by modifying the father's child support obligation based upon income imputed to her without making a specific finding that she was voluntarily unemployed or underemployed. See RSA 458-C:2, IV(a) (2004). In his cross-appeal, the father argues that the trial court erred by ordering him to continue to pay for his children's extracurricular activities because these expenses are included in his total support obligation under the child support guidelines. See In the Matter of Coderre & Coderre, 148 N.H. 401, 406 (2002). He also argues that under RSA 458:17, XI-a (2004), the trial court erred in upholding the parties' stipulation that they would contribute to their children's college expenses. Finally, he argues that the court erred in refusing to strike the CPI provision because that provision is contrary to the statutory formula for computing child support. See RSA 458-C:3, II(a) (2004). We address each issue in turn. I. Underemployment The mother argues that the trial court erred by imputing income to her without making an express finding that she was voluntarily unemployed or underemployed under RSA 458-C:2, IV(a). Furthermore, she argues that even if an express finding is not required, the evidence does not support an implied finding of voluntary underemployment. In matters of statutory interpretation, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. In the Matter of Watterworth & Watterworth, 149 N.H. 442, 445 (2003). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written, and, therefore, we will not consider what the legislature might have said or add words that the legislature did not include. Coderre, 148 N.H. at 403. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Watterworth, 149 N.H. at 445. RSA 458-C:2, IV(a) provides that "[t]he 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." The plain language of the statute does not mandate an express finding that the parent is voluntarily unemployed or underemployed. In contrast, other sections of RSA chapter 458-C explicitly require the trial court to make an express written finding. For example, RSA 458-C:5 (2004) provides that the trial court "shall make written findings" relative to the applicability of special circumstances that warrant a deviation from the child support guidelines. See, e.g., In the Matter of Barrett & Coyne, 150 N.H. 520, 524-25 (2004). When the legislature has failed to include such provisions in a statute, we presume that it did not intend the law to have that effect and will not judicially engraft those terms. Appeal of Concord Natural Gas Corp., 121 N.H. 685, 691 (1981); see also State v. Rothe, 142 N.H. 483, 485 (1997). Therefore, we hold that RSA 458-C:2, IV(a) does not require an express finding of voluntary unemployment or underemployment. Although an express finding is not required, we must determine whether the evidence supports the trial court's implied finding that the mother is underemployed in this case. Whether a party is underemployed is a question for the fact finder, whose decision will not be disturbed on appeal if supported by evidence in the record. West v. Turchioe, 144 N.H. 509, 513 (1999). Trial courts have broad discretion to review and modify child support awards. Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 (1989). They are in the best position to determine the parties' respective needs and their respective abilities to meet them. See id. Accordingly, we will set aside a modification order only if it clearly appears on the evidence that the court's exercise of discretion was unsustainable. In the Matter of Jerome & Jerome, 150 N.H. 626, 628 (2004). In computing the father's child support obligation, the trial court relied upon his calculations on the child support guidelines worksheet. On the worksheet, the father attributed $952.60 to the mother as monthly gross income. The father based this figure on his belief that "although [the mother] is not currently working as a CPA, she has the ability to do so if she were to take the required courses to get up to speed." The father acknowledged that currently the mother is not certified to work as a CPA, but his attorney stated that, "as a CPA himself[,] [he] believes his former wife could at least obtain a job as a bookkeeper and earn at least $952 a month." The trial court's adoption of this figure in computing the father's child support obligation implies a finding that the mother is voluntarily underemployed.

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In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr.

This finding is not supported by the evidence in the record. The father's claim that the mother could obtain employment as a bookkeeper is speculation unsupported by any concrete evidence. Indeed, it is not clear from the father's allegations that the mother is currently qualified for such employment. Moreover, pursuant to the parties' agreement, the mother has been home-schooling their children for at least eight years, which prevents her from pursuing full-time employment. Furthermore, she "has been required to seek part-time employment, simply to make ends meet," and "has been working to the extent of her ability around the home schooling [of] her children." There is no evidence in the record concerning whether the mother could continue to home-school the children and earn the amount of income that the trial court imputed to her. We therefore vacate that part of the trial court's order modifying the father's monthly child support obligation based on income imputed to the mother. II. Extracurricular activities Next, the father argues that the trial court erred by requiring him to continue paying $150 per month for the children's extracurricular activities because such expenses are included in his child support obligation. See In the Matter of Coderre & Coderre, 148 N.H. at 406. The mother argues that Coderre should not apply because she is home-schooling the children and must incur the cost of all of their extracurricular activities. Alternatively, she argues that her significantly low income and ongoing educational expenses on behalf of the children constitute special circumstances that warrant deviation from the guidelines. See RSA 458-C:5. We agree with the father. The father argues that the trial court should have applied our holding in Coderre, 148 N.H. at 406, even though he agreed to pay $150 per month for the children's extracurricular activities in the parties' permanent stipulation and did not appeal this issue after the divorce decree was finalized. Under the child support guidelines, either parent may apply to the trial court for modification of the child support order every three years. RSA 458-C:7, I. At that time, the trial court must use the formula provided under RSA 458-C:3 to recalculate the parents' total support obligation based upon their current incomes. In Coderre, we held that extracurricular activity expenses fall into the same category of basic support as food, shelter and recreation, and as such are included in the parties' total support obligation under the guidelines. Coderre, 148 N.H. at 406; see also In the Matter of Arabian & Squillante, 151 N.H. 109, 111 (2004). Because extracurricular expenses are part of basic guidelines support, they are included in the trial court's recalculation of the child support obligation at the three-year review. See RSA 458-C:3. Accordingly, the trial court erred in not applying our holding in Coderre when it recalculated the father's support obligation under the guidelines and required him to continue paying an additional $150 per month for extracurricular activities. See Coderre, 148 N.H. at 406. The mother argues that this case should be distinguished from Coderre because she is home-schooling the children and the public school system does not subsidize the cost of their extracurricular activities. Our holding in Coderre, however, was not based upon the facts underlying the party's request for extracurricular expenses. See id. Rather, we examined the structure and purpose of RSA chapter 458-C to determine what expenses are part of general support under the guidelines. See id. at 403-06. Although extracurricular activities are included in basic guidelines support, ongoing extraordinary education expenses may constitute special circumstances that justify deviation from the guidelines. Arabian, 151 N.H. at 112. We agree with the mother that, on remand, the trial court may consider whether special circumstances exist in this case in making adjustments to application of the guidelines. See RSA 458-C:5. Thus, we vacate the trial court's decision requiring the father to continue paying $150 per month for extracurricular activity expenses in addition to his child support obligation under the guidelines. See Coderre, 148 N.H. at 406. III. College expenses Next, we address the father's argument that the trial court erred in refusing to strike the provision of the parties' permanent stipulation that requires them to contribute to their children's college educations. As part of the permanent stipulation, the parties agreed that each of them would "contribute to the cost of the children's education through college in proportion to their respective income at that time." At that time, the trial court had "broad discretionary powers" to order divorced parents to contribute to their children's college expenses under RSA 458:17, I (Supp. 2003) and RSA 458:20 (1992). LeClair v. LeClair, 137 N.H. 213, 217-18 (1993) (superseded by statute).

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In the Matter of Tatjana A. Donovan and Robert F. Donovan, Jr.

At the hearing on his petition to modify the divorce decree, the father asked the trial court to strike the portion of the permanent stipulation related to college expenses in light of the passage of House Bill 299, which amended RSA 458:17 to provide: "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 458:17, XI-a. The amendment took effect on February 2, 2004, before the trial court's hearing on the father's petition. The trial court denied the father's request. On appeal, the father argues that under the new statute, the trial court erred in denying his request to remove the college education provision from the prior court order. Thus, the issue before us is whether the new statute requires the trial court to vacate a pre-existing order that requires the parents to contribute to their children's college education. It is clear that, at a minimum, the legislature intended to preclude the trial court from issuing a new court order on or after the effective date of the statute that would require a parent to contribute to an adult child's college expenses. In the Matter of Goldman & Elliott, 151 N.H. ___, ___ (decided March 2, 2005). However, it is not clear on the face of the statute whether the legislature intended it to apply retroactively to orders already in existence prior to its enactment. The phrase "[n]o child support order shall require" may be interpreted to mean that as of the effective date of the statute, no court may order a parent to pay college expenses in future divorce decrees. See RSA 458:17, XI-a. Alternatively, the phrase may be interpreted to mean that all past child support orders that include college expenses must be vacated. See id. "Where the statutory language is ambiguous or where more than one reasonable interpretation exists, we review legislative history to aid in our analysis." Appeal of Ann Miles Builder, 150 N.H. 315, 318 (2003) (quotation omitted). House Bill 299 was proposed following our decision in In the Matter of Breault and Breault, which held that RSA 458:17, I, does not require that child support terminate when a child reaches the age of majority or graduates from high school. In the Matter of Breault & Breault, 149 N.H. 359, 362 (2003) (superseded by statute). In Breault, we affirmed our prior holding that the trial court may order parents to contribute to their adult children's post-secondary education. Id. at 363; see also LeClair, 137 N.H. at 220. This holding was consistent with our recognition that "the State has the dual legitimate interests of promoting higher education for its citizens, and of extending protections to children of divorce to ensure that they are not deprived of opportunities they otherwise would have received had their parents not divorced." LeClair, 137 N.H. at 225. Numerous States similarly have recognized, by statute or judicial opinion, the obligation of non-custodial parents to support their children's post-secondary educations. Goforth, The Case for Expanding Child Support Obligations to Cover Post-Secondary Educational Expenses, 56 Ark. L. Rev. 93, 100 n.39 (2003). The final version of House Bill 299 states that it is an act "removing judicial discretion to order a divorced parent to contribute to an adult child's college expenses." Laws 2004, ch. 1. In his report for the majority of the House Committee on Children and Family Law, Representative Thomas I. Arnold, Jr. stated that the bill "removes the court's discretion to make orders regarding the children's post-secondary education at the time of their parent's [sic] divorce." N.H.H.R. Jour. 161 (2003) (emphasis added). This report suggests that the legislature intended the statute to apply to future divorce decrees, but does not make clear whether the statute was intended to apply to post-enactment modifications to decrees that were issued prior to the change in legislation. As a general rule, statutes are applied prospectively. Eldridge v. Eldridge, 136 N.H. 611, 613 (1993); accord 3A N. Singer, Statutes and Statutory Construction

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