In re Bazemore

• Decision Date: 11 April 2006
• Docket Number: No. 2005–194.,2005–194.
• Citation: 899 A.2d 225,153 N.H. 351
• Court: New Hampshire Supreme Court
• Parties: In the Matter of Barbara F. BAZEMORE and Martin L. Jack.

153 N.H. 351

899 A.2d 225

In the Matter of Barbara F. BAZEMORE and Martin L. Jack.

No. 2005–194.

Supreme Court of New Hampshire.

Submitted: Nov. 16, 2005.

Resubmitted: March 7, 2006.

Opinion Issued: April 11, 2006.

Rehearing Denied June 9, 2006.

Barbara F. Bazemore, by brief, pro se.

Barry & Honorow, P.L.L.C., of Nashua (Helen G. Honorow, on the brief), for the respondent.

DUGGAN, J.

The petitioner, Barbara F. Bazemore, appeals an order of the Superior Court (Hampsey, J.) approving the recommendation of the Marital Master (David S. Forrest, Esq.) granting her petition for modification of child support, but imputing only $70,000 in income to the respondent, Martin L. Jack, for the purposes of calculating such support. We affirm.

The record supports the following facts. Bazemore and Jack were divorced pursuant to a decree dated April 22, 1998. Together they have one child, born June 23, 1991. The divorce decree incorporated the terms of a permanent stipulation providing, among other things, that "[s]pecial circumstances exist [ed] that justif[ied] no order of child support." Such "special circumstances" included the assets and incomes of each party, the custodial arrangement outlined in the permanent stipulation, the division of marital assets, and the division of responsibility for various child-related expenses.

Jack received his bachelor's degree from the Massachusetts Institute of Technology in 1971. From then until September 2001, he worked as a software engineer. At the time of the divorce in April 1998, he was earning wages of $10,354 per month, supplemented by investment income of $2,523 per month.

In September 2001, Jack voluntarily resigned from his employment, and thereafter supported himself with investment income. In May 2004, Bazemore informed Jack that she intended to seek court-ordered child support, motivating him to search for new employment. On July 27, 2004, Bazemore filed a petition for modification of the uniform support order pursuant to RSA 458–C:7 (2004), which permits an obligee to apply for a modification of an existing child support order three years after the entry of the last order of support without the need to show a substantial change of circumstances.

Among other things, Bazemore asserted that any "special circumstances" existing at the time of the original divorce decree had lapsed, and that Jack was voluntarily unemployed or underemployed. Citing RSA 458–C:2, IV(a) (2004), Bazemore urged the trial court to impute $160,000 in annual income to Jack for the purposes of calculating child support, as that was Jack's approximate annual salary in 2001, the year of his resignation. Jack argued that, were he to succeed in finding employment, he would likely be able to earn only $75,000 to $95,000 per year.

The trial court granted the petition for modification of child support and found that Jack was voluntarily unemployed. The court qualified its finding, however, by noting that Jack reasonably relied upon the parties' permanent stipulation when he terminated his employment, and that he did not do so with the intent of avoiding his child support obligation or thwarting Bazemore's ability to receive child support in an appropriate amount. Finding it unjust to impute $160,000 in income to Jack, the court instead imputed $70,000.

On appeal, Bazemore raises the following issues: (1) that the trial court erred by not using Jack's last earned wages for the purposes of imputing income after it found that he was voluntarily unemployed; (2) that the trial court's child support modification order is not in accordance with statutory guidelines or federal regulations; (3) that the amount of income actually imputed to Jack constitutes an unsustainable exercise of discretion by the trial court; (4) that the trial court exhibited an unfair bias against Bazemore, thereby denying her equal protection and due process; (5) that procedural deficiencies deprived her of due process; and (6) that she was deprived of due process due to ineffective assistance of counsel. We address each issue in turn.

We note at the outset that trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of Donovan & Donovan, 152 N.H. 55, 59, 871 A.2d 30 (2005). Because trial courts are in the best position to determine the parties' respective needs and their respective abilities to meet them, we will set aside a modification order only if it clearly appears on the evidence that the trial court engaged in an unsustainable exercise of discretion. Id.

Bazemore first argues that the trial court erred by not using Jack's last earned wages of $160,000 for the purposes of imputing income after finding that he was voluntarily unemployed. We disagree.

RSA 458–C:2, IV(a) provides that in cases where a parent is found to be voluntarily unemployed or underemployed, a trial 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." The trial court, after applying RSA 458–C:2, IV(a) to the facts of this case, concluded that it would be unjust to impute income to Jack in the amount of $160,000, his annual salary at the time of his resignation in 2001, and instead selected the reduced amount of $70,000.

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. Donovan, 152 N.H. at 58, 871 A.2d 30. We examine the language of the statute, ascribing to its words their plain and ordinary meanings, and interpret it in the context of the overall legislative scheme and not in isolation. In the Matter of Jerome & Jerome, 150 N.H. 626, 628–29, 843 A.2d 325 (2004).

Bazemore argues that RSA 458–C:2, IV(a) grants the trial court the discretion only to decide whether to impute income, but not the discretion to determine the amount of income to impute. Thus, she urges us to interpret RSA 458–C:2, IV(a) as granting trial courts the discretion to impute income only in an amount measured against actual past earnings or to not impute income at all. We decline to adopt this overly rigid interpretation. Were we to do so, a trial court, upon finding that it would be unjust to impute as income the entirety of a parent's past salary, would have no choice but to impute no income at all. We will not interpret the statute to yield such a harsh and impractical result. Cf. Carlisle v. Frisbie Memorial Hosp., 152 N.H. 762, 773–74, 888 A.2d 405, 417 (2005).

The plain language of the statute states that the court, "in its discretion, may consider as gross income" the difference between the parent's current and past earnings when it finds that the parent is voluntarily unemployed or underemployed. RSA 458–C:2, IV(a) (emphasis added). In contrast, the following subsection states that the income of a parent's current spouse "shall be imputed" to the parent, to the extent that the parent had earned income in the past, in the event that the parent is voluntarily unemployed or underemployed. RSA 458–C:2, IV(b) (2004) (emphasis added). It is a general rule of statutory construction that the word "may" is permissive in nature, whereas the word "shall" makes enforcement of a provision mandatory. See Town of Nottingham v. Harvey, 120 N.H. 889, 895, 424 A.2d 1125 (1980) ; see also Appeal of Rowan, 142 N.H. 67, 71, 694 A.2d 1002 (1997). Where the legislature fails to include in a statute a provision for mandatory enforcement that it has incorporated in other, similar contexts, we presume that it did not intend the law to have that effect and will not judicially engraft such a term. See Appeal of Concord Natural Gas Corp., 121 N.H. 685, 691, 433 A.2d 1291 (1981).

The trial court here exercised its discretion not to consider the entire difference between the amount Jack was earning and the amount Jack had earned, but only to consider a portion of that difference. A court may exercise its discretion, consistent with the plain language of the statute, to consider as gross income part of the difference and not the remainder. "[T]he statutory grant of a greater power typically includes the grant of a lesser power ... a bit of common sense that has been recognized in virtually every legal code from time immemorial ...." O'Connell v. Shalala, 79 F.3d 170, 177 (1st Cir.1996) (citation and quotation omitted).

The dissent agrees with Bazemore's argument that RSA 458–C:2, IV(a) permits the trial court to either impute the difference between Jack's past and present incomes, or impute no income at all. However, the dissent points out that the trial court could still order a reduced child support obligation for Jack on remand by relying on RSA 458–C:4, II (2004). The dissent argues that the trial court could make a written finding that "application of the guidelines would be unjust or inappropriate" in this case, id., and thus, in effect, consider only a portion of the gross income attributable to Jack under RSA 458–C:2, IV(a).

The safety valve contained in RSA 458–C:4, II, however, is not that expansive. A trial court can only find that application of the guidelines is "unjust or inappropriate in a particular case, as determined by using the criteria set forth in RSA 458–C:5." RSA 458–C:4, II. Thus, to reach the same result in this case, a mere showing that the support order is "unjust or inappropriate" would be insufficient; the trial court would have to find a "special circumstance" as defined in RSA 458–C:5, I (Supp.2005).

Two of these special circumstances may arguably be applicable to Jack. On remand, Jack might argue that the application of the guidelines is "unjust or inappropriate" in his case because he has a "[s]ignificantly high or low income." RSA 458–C:5, I(b). It is, however, unclear how this special circumstance applies, if it applies at all, when the income is imputed. Jack could also argue that the trial court should find "[o]ther special circumstances ... to...