Gnirk v. Gnirk, 90-106

• Decision Date: 26 April 1991
• Docket Number: No. 90-106,90-106
• Parties: , 67 Ed. Law Rep. 702 Marlene GNIRK v. Paul E. GNIRK.
• Court: New Hampshire Supreme Court

Page 1008

589 A.2d 1008

134 N.H. 199, 67 Ed. Law Rep. 702

Marlene GNIRK v. Paul E. GNIRK.

No. 90-106.

Supreme Court of New Hampshire.

April 26, 1991.

Patricia C. Hassinger, Newmarket, by brief and orally, for plaintiff.

Stephen A. White and Kevin P. Landry, Dover (Stephen A. White on the brief, and Kevin P. Landry orally), for defendant.

HORTON, Justice.

The defendant appeals the decision of the Superior Court (Mohl, J.) approving the recommendation of the Marital Master (Pamela D. Eldredge, Esq.) and granting the plaintiff's petition for modification of an existing support order. The issues presented are (1) whether the trial court erred in finding a substantial change in circumstances warranting the modification; and (2) whether such a modification can include an order requiring a divorced parent to pay a portion of the college expenses of an adult child, where the parties had previously entered into a stipulation which did not provide for such expenses. For the reasons which follow, we affirm the court's decision.

The parties, both of whom now reside in New Hampshire, were divorced by decree of the York County District Court in Maine on December 29, 1986. Pursuant to this decree, the plaintiff, Marlene Gnirk, was granted custody of two of the parties' three minor children, and the defendant, Paul Gnirk, was granted custody of the remaining minor child, a son. With the advice of counsel, the parties entered into a stipulation in which the defendant undertook to pay a share of the children's uninsured medical expenses and to make support payments of $50 per week for each child in the custody of the plaintiff until the particular child reached the age of eighteen or became emancipated. The court-approved stipulation stated that it contained "the entire understanding of the parties and [that there were no other] representations, warranties, covenants or undertakings...." The stipulation was silent on the subject of contribution toward college expenses, the plaintiff's original attorney having advised her not to be concerned about the issue at that time. Shortly after the divorce, the minor child originally entrusted to the custody of the defendant went to live with the plaintiff, and he has remained in her home. The oldest child, the couple's only daughter, turned eighteen on May 2, 1989, and presently attends the University of New Hampshire as a day student.

On November 17, 1989, the plaintiff filed a pro se petition for modification of the Maine decree in the superior court. She alleged that the minor child originally entrusted to his father's custody now lived with her, that the daughter was attending college and could not provide for her own expenses, and that the plaintiff's expenses, particularly medical expenses, exceeded the child support payments from the defendant. A hearing was held before a marital master on February 7, 1990. In accordance with the master's recommendations, the trial court granted the petition and ordered that the defendant pay $150 per week as child support and contribute one-half of the college expenses for the daughter attending the University of New Hampshire. On appeal, the defendant argues that the trial court abused its discretion in granting any relief and in granting relief by increasing his financial responsibilities.

In reviewing a support order modification, we will not disturb the decision of the trial court unless we determine that the court clearly abused its discretion. Nicolazzi v. Nicolazzi, 131 N.H. 694, 696, 559 A.2d 1335, 1337 (1989). As an additional restraint on our review, we note that in presenting this appeal the defendant has chosen not to submit a full record of the proceedings below. Thus, if the granting of the petition for modification in this case did not constitute legal error apparent on the limited record available to us, we must assume that the subsequent decisions to increase child support by $50 per week and to require a 50% contribution to college expenses have bases in the evidence presented at the February 7, 1990 hearing. See Dombrowski v. Dombrowski, 131 N.H. 654, 663, 559 A.2d 828, 833 (1989); Cote v. Cote, 123 N.H. 376, 377-78, 461 A.2d 566, 567 (1983); Adams v. Adams, 117 N.H. 43, 44, 369 A.2d 196, 197 (1977); Sandberg v. Sandberg, 81 N.H. 317, 317, 125 A. 259, 259 (1924).

The defendant first asserts that the decision raising his weekly child support payment was in error because no substantial change in circumstances was alleged in the petition for modification and because no change in circumstances had occurred in fact. A modification should not be granted in the absence of evidence of a substantial change in circumstances of the parties arising since the grant of the initial award, "making the current support amount either improper or unfair." Morrill v. Millard (Morrill), 132 N.H. 685, 689-90, 570 A.2d 387, 390 (1990); accord Noddin v. Noddin, 123 N.H. 73, 76, 455 A.2d 1051, 1053 (1983); Fortuna v. Fortuna, 103 N.H. 547, 548, 176 A.2d 708, 709 (1961). The plaintiff did, however, specifically allege a change in circumstances by stating in her pro se petition that her oldest child was attending the University of New Hampshire and that both of the two minor children, one of whom had been initially placed in the custody of the defendant, were now living with her. Clearly, she was asserting that these two events were changes in circumstances entitling her to a modification. It then became the task of the trial court to determine whether a substantial change had occurred and make an evaluation of the needs of the parties and their respective abilities to meet those needs. Morrill, 132 N.H. at 688, 570 A.2d at 389 (citing Butterick v. Butterick, 127 N.H. 731, 736, 506 A.2d 335, 338 (1986)).

The defendant attempts to use the coincidental passage of the oldest child from minority to legal adulthood as an offset for the change which occurred when the minor child originally entrusted to him chose to live with the plaintiff. The defendant argues that there has been no net change: at the time of the divorce in 1986, the plaintiff had two minor children in her custody, and, in 1990, she also has two minor children in her custody. The defendant contends that the plaintiff's petition really sought a modification reflecting the increased costs of raising children. Were this so, he argues, the practical effect of granting a petition on such grounds would be to enable the plaintiff to evade our ruling in Morrill that "[a]bsent other factors, the expected growth of a child and normal increases in the cost of living are not special circumstances which justify the modification of a child support order." Id. at 689, 570 A.2d at 389. We are not persuaded by this contention.

Not only does the defendant's argument disregard the continued presence of the adult daughter in the household while she attends college, but it also portrays children as uniform or fungible packages of expenditures. Realistically, the plaintiff has a new child in her household, a child of different age and sex from the adult daughter. This new child's presence will mean costs of a different type than those associated with the adult daughter.

Moreover, the defendant's argument also overlooks the significant alteration in the original agreement affected by the movement of the child from his father's to his mother's home. In 1986, the plaintiff undertook to have two children in her custody and to receive support payments of $50 per week per child until each one turned eighteen or became emancipated. At that time, she could reasonably expect to have only one minor child in her custody by November of 1990, the daughter having turned eighteen in the interim. In addition, her assessment of a fair child support amount to be paid by the defendant was predicated upon the defendant's having one child living with him and incurring the costs associated with raising that child. Upon these understandings, she agreed to total payments of $100 per week, lowered to $50 per week when the oldest child reached eighteen in May of 1990. Instead, her obligation to care for two minor children has now been extended past its original term, and the defendant no longer bears the expenses associated with the child who previously lived with him. We hold that, under these circumstances, the statement in the plaintiff's petition that the third child now lives with her does allege a substantial change in circumstances upon which basis the trial court could reexamine the propriety of the agreement entered into in 1986 and could, in the exercise of its discretion, find the original agreement unfair or improper.

In his second argument, the defendant asserts that the trial court improperly ordered him to contribute toward his adult child's college expenses, absent an educational support provision in the original support order. For a number of years, this court has upheld the discretion of trial courts to include allowances for college expenses in initial child support orders, see, e.g., Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 151 (1978); Payette v. Payette, 85 N.H. 297, 298, 157 A. 531, 531-32 (1931), or to modify...