In re Greenberg
| Decision Date | 24 March 2021 |
| Docket Number | No. 2019-0734,2019-0734 |
| Citation | 174 N.H. 168,261 A.3d 293 |
| Parties | In the MATTER OF Michael GREENBERG and Anne Greenberg |
| Court | New Hampshire Supreme Court |
Brennan, Lenehan, Iacopino & Hickey, of Manchester (William J. Quinn on the brief and orally), for the petitioner.
Smith-Weiss Shepard & Spony, P.C., of Nashua (Robert M. Shepard on the brief and orally), for the respondent.
The petitioner, Michael Greenberg (Father), appeals an order of the Circuit Court (Derby, J.) that modified his child support obligation as it pertains to his shares of vested restricted stock and ordered him to pay child support arrearages of nearly $91,000 to the respondent, Anne Greenberg (Mother). We affirm.
The following facts are derived either from the trial court's order or the content of documents in the appellate record. The parties were married in 2003. Their final divorce decree was entered in December 2015. They have two sons, one born in May 2004 and another born in May 2006.
Since approximately June 2015, Father has worked at a publicly-traded company that periodically awards him shares of restricted stock. When Father first joined the company, he was awarded 5,000 such shares. He has since received additional restricted stock awards.
The shares of restricted stock vest over time: after one year (assuming Father has remained with the company), the company releases one-fourth of the shares to him, less an amount the company withholds to pay some of the taxes owed on the shares; over the next three years (assuming Father's continued employ by the company), the company releases one-sixteenth of the shares on a quarterly basis. When the shares are released to Father, they are put into a brokerage account for him to keep or sell, as he pleases. If the shares are released during a "blackout period," Father cannot sell them until the blackout period is over. Father usually sells the shares as soon as he is able to do so. Since the parties’ December 2015 divorce, Father has netted $324,856.63 from the sale of vested restricted stock.
The shares of vested restricted stock are listed as "taxable benefits" on his paystub. Father testified that the restricted stock awards are "part of [his] total compensation," and that the Internal Revenue Service treats his vested restricted stock as income. According to Father, the purpose of the restricted stock awards is to provide employees with an incentive to remain with the company. In addition to receiving periodic restricted stock awards, Father participates in an employee stock purchase program and a discretionary bonus program.
As pertinent to the instant matter, the parties’ final divorce decree awarded Father "any stock options he may have an interest in with [his current employer] free of any interest on the part of [Mother]." The uniform support order issued with the decree required Father to pay Mother "28% of any bonus he may receive within 3 days of receipt" as child support in addition to regular monthly child support.
Neither the decree nor the uniform support order expressly referred to Father's restricted stock awards. Father did not include the initial 5,000 shares of restricted stock he received on his financial affidavit submitted during the parties’ divorce proceedings; none of those shares had vested as of the time of the decree. Nor did he voluntarily disclose to Mother when he sold restricted stock. He also did not pay any portion of those proceeds as child support.
In May 2019, Mother filed a motion to modify child support "based upon a three (3) year review and possibly based upon a significant change of financial circumstances." Mother alleged that "upon information and belief, [Father] [had] obtained a significant increase in income since the divorce became final" in December 2015. After further pleadings, the court held a hearing on "whether the money [Father] has earned by selling the [restricted stock] over the years should be treated as a bonus upon which he should have paid child support ... , or whether the [restricted stock] fall[s] under [the] property division" set forth in the parties’ December 2015 final divorce decree.
Following the hearing, the trial court ruled that the restricted stock awards function like retention bonuses, rewarding key employees such as Father for remaining at the company for one year or more, and, therefore, upon vesting, constitute income for child support purposes. See RSA 458-C:2, IV (2018). The trial court calculated that, since the parties’ December 2015 divorce through September 2019, Father had realized $324,856.63 in proceeds from the sale of vested restricted stock. Consistent with the parties’ divorce decree, the court ordered him to pay 28% of that amount ($90,959.86) as child support.
Going forward, the court ordered Father to pay, as child support, a lesser percentage, 26%, of the net proceeds from the sale of any vested restricted stock. The court stated that if Father did not sell the vested restricted stock "within 14 days of the first date after [the stock's] release and outside the blackout period when he could sell [it], child support will be paid at 26% of the actual shares released to [Father] (exclusive of the shares held back for taxes) at the intraday average between the high and low price for the stock on the first trading day when [he] could sell the stock." The court ordered Father to make payments on April 1, August 1, November 1, and January 1 of each year.
Father moved for reconsideration, arguing, among other things, that: (1) because Mother's motion to modify child support did not mention his restricted stock awards, he had no notice that his failure to pay child support on the proceeds from the sale of vested restricted stock would be at issue; and (2) the court erred "in applying its order retroactively to 2015" given that Mother's motion to modify was filed in May 2019. The trial court denied these aspects of Father's motion. This appeal followed.
Trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 140, 238 A.3d 1047 (2020). They are in the best position to determine the parties’ respective needs and their respective ability to meet those needs. In the Matter of Feddersen & Feddersen, 149 N.H. 194, 196, 816 A.2d 1033 (2003). We will not disturb the trial court's rulings regarding child support absent an unsustainable exercise of discretion or an error of law. Ndyaija, 173 N.H. at 140, 238 A.3d 1047. We review only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made, and we will not disturb the trial court's determination if it could reasonably have been made. In the Matter of Summers & Summers, 172 N.H. 474, 479, 215 A.3d 900 (2019). Our standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Id. We will not substitute our judgment for that of the trial court. Id. Nor will we reweigh the equities. Id.
The trial court's discretion necessarily extends to matters such as assigning weight to evidence and assessing the credibility and demeanor of witnesses. Id.
Conflicts in the testimony, questions about the credibility of witnesses, and the weight assigned to testimony are matters for the trial court to resolve. Id. The trial court's factual findings are binding upon this court if they are supported by the evidence and are not legally erroneous. Id. "If the court's findings can reasonably be made on the evidence presented, they will stand." In the Matter of Letendre & Letendre, 149 N.H. 31, 36, 815 A.2d 938 (2002). However, to the extent that resolving a modification issue requires that we interpret pertinent statutes, we review the trial court's statutory interpretation de novo. Summers, 172 N.H. at 479, 215 A.3d 900.
Father first challenges the trial court's order that he pay a percentage of the value of his vested restricted stock to Mother as child support, even if he chooses not to liquidate the stock. He argues, in effect, that his vested restricted stock constitutes an asset that is not includable as income for child support purposes. He contends that it does not become income for such purposes until he sells it.
"Gross income" for child support purposes is defined as "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 certain government programs. RSA 458-C:2, IV. RSA 458-C:2, IV(c) allows a court, "in its discretion," to "order that child support based on one-time or irregular income be paid when the income is received, rather than be included in the weekly, bi-weekly, or monthly child support calculation." Under RSA 458-C:2, IV(c), "[s]uch support shall be based on the applicable percentage of net income."
Assets are not specifically included in this statutory definition, and we have consistently held that "[t]he child support guidelines turn on the obligor parent's income available for support, and not on the parent's net worth." In the Matter of Hampers & Hampers, 166 N.H. 422, 436, 97 A.3d 1106 (2014) ; see RSA 458-C:3 (2018) (); see also In the Matter of Jerome & Jerome, 150 N.H. 626, 632, 843 A.2d 325 (2004) (); In the Matter of Plaisted & Plaisted, 149 N.H. 522, 525, 824 A.2d 148 (2003) ...
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