In re Gilmore

• Decision Date: 24 July 2002
• Docket Number: No. 2001–192.,2001–192.
• Citation: 803 A.2d 601,148 N.H. 111
• Court: New Hampshire Supreme Court
• Parties: In the Matter of Nancy J. GILMORE and William E. Gilmore, Jr.

148 N.H. 111

803 A.2d 601

In the Matter of Nancy J. GILMORE and William E. Gilmore, Jr.

No. 2001–192.

Supreme Court of New Hampshire.

Argued May 16, 2002.

Opinion Issued July 24, 2002.

Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and Alec L. McEachern on the brief, and Mr. McEachern orally), for the petitioner.

Getman, Stacey, Tamposi, Schulthess & Steere, P.A., of Bedford (Edwinna C. Vanderzanden on the brief and orally), for the respondent.

DALIANIS, J.

The respondent, William E. Gilmore, Jr., appeals an order of the Superior Court (Abramson , J.) requiring him to pay certain monthly expenses towards his adult child's college education. We reverse and remand.

The record supports the following facts. The parties were divorced in 1991. At the time of their divorce, the parties had two minor children. In the divorce decree the respondent was ordered to pay, among other obligations, "the entire expense of any private schooling or college for the two girls."

By July 2000, the parties' daughter Lindsey was an adult who was commuting to college while living with the petitioner, Nancy J. Gilmore. In September 2000, the petitioner filed a motion requesting that the respondent be ordered to continue paying child support for Lindsey while she attended college.

On November 22, 2000, the trial court dismissed the petitioner's request for child support but ordered the respondent to pay what it characterized as "reasonable college expenses" for Lindsey, including expenses for room and board while she lived at home with the petitioner, as follows:

Tuition, fees and books:	As required
	Allowance, as previously established:	$200 per month
	Room:	$532 per month
	Gas:	$140 per month
	Car insurance, repairs, and registration:	$146 per month
	Medical and dental expenses:	$ 75 per month
	Clothing and shoes:	$200 per month
	Food:	$350 per month

The respondent filed a motion for reconsideration and clarification arguing, among other things, that the court did not have jurisdiction to order him to pay for items such as clothing, shoes and an allowance because they are not educational expenses, and that he should not be responsible for Lindsey's educational expenses when she was not in school. The court agreed that the respondent was not responsible for paying Lindsey an allowance, and that he was responsible for her educational expenses only during the months she was attending college, but otherwise denied the respondent's motion.

On appeal, the respondent argues that the court erred in ordering him to pay for such items as transportation, insurance, medical coverage, clothing and shoes because they are not educational expenses. He also argues that the court erred in requiring payments for Lindsey's room and board to be made to the petitioner.

We afford broad discretion to the trial court in divorce matters, and will not disturb the trial court's rulings regarding child support absent an unsustainable exercise of discretion or an error of law. Rattee v. Rattee, 146 N.H. 44, 46, 767 A.2d 415 (2001) ; cf . State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard). The party challenging the court's order has the burden of showing that the order was "improper and unfair." Hunneyman v. Hunneyman, 118 N.H. 652, 653, 392 A.2d 147 (1978) (quotation omitted).

RSA 458:17, I (1992) (amended 1993) provides that:

In all cases where there shall be a decree of divorce or nullity, the court shall make such further decree in relation to the support, education, and custody of the children as shall be most conducive to their benefit and may order a reasonable provision for their support and education.

Generally, a parent's obligation to pay child support ceases when the child turns eighteen years old or graduates from high school, whichever is later. RSA 458:35–c (1992). Both this court and the legislature, however, have recognized the superior court's jurisdiction to order divorced parents, consistent with their means, to contribute toward the educational expenses of their adult children. LeClair v. LeClair, 137 N.H. 213, 218–19, 624 A.2d 1350 (1993) ; see also French v. French, 117 N.H. 696, 699, 378 A.2d 1127 (1977) (interpreting RSA 458:17 to allow court to order divorced parents to pay for reasonable college expenses of their adult children); RSA 458:17, :20 (1992).

The respondent does not dispute the court's authority to order him to provide for Lindsey's educational expenses. He contends, however, that the court erred when it ordered him to pay for, among other things, transportation costs, medical expenses and clothing. He argues that these expenses are tantamount to child support, which he is no longer obligated to pay.

The petitioner counters that the trial court's order was proper because RSA 458:20 allows the court to order the respondent to provide for Lindsey's support, maintenance and general welfare while she attends college. We disagree. RSA 458:20, in pertinent part, provides:

In a proceeding under this chapter, the court may set aside a portion of the property of the parties in a separate fund or trust ... for a child of the parties, who is 18 years of age or older, if the child is in college ....

This provision gives the trial court authority, when dividing the property of divorcing parties, to order a portion of that property to be placed into a separate educational trust fund for a child who is both in college and at least eighteen years old.

A divorced parent's support obligation does not automatically terminate when a child reaches eighteen years of age. Gnirk v. Gnirk, 134 N.H. 199, 204, 589 A.2d 1008 (1991). However, the nature of that support varies depending upon the circumstances...