In re Hampers

• Decision Date: 24 June 2014
• Docket Number: No. 2012–696,2012–696
• Parties: In the MATTER OF Marcus J. HAMPERS and Kristin C. Hampers
• Court: New Hampshire Supreme Court

166 N.H. 422

97 A.3d 1106

In the MATTER OF Marcus J. HAMPERS and Kristin C. Hampers

No. 2012–696

Supreme Court of New Hampshire.

Argued: November 14, 2013

Opinion Issued: June 24, 2014

As Modified July 24, 2014

Orr & Reno, P.A., of Concord (Jeremy D. Eggleton and Judith A. Fairclough on the brief, and Mr. Eggleton orally), for the husband.

Primmer, Piper, Eggleston & Cramer, P.C., of Manchester (Doreen F. Connor on the brief and orally), for the wife.

CONBOY, J.

In these cross-appeals, Marcus J. Hampers (husband) and Kristin C. Hampers (wife) challenge a post-divorce decision of the 5th Circuit Court—Claremont Family Division (Yazinski, J.) on the husband's motion to modify his child support and alimony obligations and on the wife's petition for contempt. The husband asserts that the trial court erred by: (1) applying a standing order requiring him to pay the reasonable attorney's fees incurred by the wife for any proceeding or matter related to the divorce decree and subsequent amendments; and (2) failing to calculate "gross income" for child support purposes under RSA chapter 458–C by using "net" figures for investment income to account for losses and expenses as well as gains. The wife asserts that the trial court erred by: (1) calculating child support based upon the husband's 2009 income and tax return when his 2010 income information and tax return were available; and (2) ordering her to repay sums that she had received in excess child support. We affirm in part, reverse in part, vacate in part, and remand.

I. Attorney's Fees Order

The husband contends that the standing attorney's fees order should be vacated because, among other things, it violates his rights to equal protection and due process under the State and Federal Constitutions. See U.S. CONST. amends. V, XIV ; N.H. CONST. pt. I, art. 14. The wife responds that the husband has challenged the same attorney's fees order on two prior occasions before this court, and, therefore, this challenge is barred by res judicata or collateral estoppel. The husband counters that these preclusive doctrines are inapplicable because the court has never issued a final decision on the merits as to the constitutionality of the attorney's fees award, because the same cause of action is not at issue in this case, and because the trial court maintains jurisdiction to review ongoing child support, custody, and alimony issues. We agree with the wife that res judicata bars this claim.

Evaluation of the parties' procedural arguments requires an analysis of our previous rulings on the attorney's fees award. In the parties' 2004 divorce decree, the trial court ordered the husband to pay all of the wife's attorney's fees incurred in the case and in any appeal from its ruling. In the Matter of Hampers & Hampers, 154 N.H. 275, 289, 911 A.2d 14 (2006) (Hampers I ). The court further ordered the husband to pay all of the wife's "reasonable attorney's fees for any proceeding or any other matter relating to any term of this decree and any amendment thereto or to the child in this matter in the future" within thirty days of the husband's receipt of the wife's attorney's fee statement. Id. (brackets, ellipsis, and quotation omitted). The court found that it would not be equitable for the wife to pay fees and costs, id. and that it was necessary to require the husband to pay the wife's future attorney's fees to "prevent abuse of this justice system." Id. at 290, 911 A.2d 14 (quotation omitted).

We left undisturbed the attorney's fees that the wife had already incurred and the husband had already paid. Id. at 290–91, 911 A.2d 14. However, we vacated the award of attorney's fees that the wife had incurred, but the husband had not yet paid, and remanded to the trial court to determine the reasonableness of those fees pursuant to the procedure we set out in Gosselin v. Gosselin , 136 N.H. 350, 353–54, 616 A.2d 1287 (1992). Id . at 291. We further held that the Gosselin procedure would apply to any attorney's fees the wife incurred in the future. Id . We declined to address the husband's constitutional arguments because he did not demonstrate that he had preserved them for our review. Id .

In 2007, the husband again challenged the attorney's fees award. In an unpublished order, we vacated the trial court's attorney's fees award "[t]o the extent that the trial court awarded fees to the [wife], which were incurred between December 2004 and September 2006, without first subjecting these fees to a Gosselin review." In the Matter of Hampers and Hampers, No. 2007–519 (N.H. Jan. 24, 2008). We explained that "fees incurred after the date of the final divorce decree could not have been part of the property settlement," and, therefore, were required to be reviewed under Gosselin —including those incurred in connection with the defense of the original case and appeal. Id . However, we rejected the husband's argument that the trial court erred by, in effect, awarding the wife appellate attorney's fees. Id. We explained, first, that such an award is permissible, see Salito v. Salito, 107 N.H. 77, 78, 217 A.2d 181 (1966), and, second, that "we [had] already impliedly upheld the trial court's inherent authority to award such fees in the instant case." Hampers, No. 2007–519 (N.H. Jan. 24, 2008).

The applicability of res judicata presents a question of law that we review de novo . Sleeper v. Hoban Family P'ship, 157 N.H. 530, 533, 955 A.2d 879 (2008). "The doctrine of res judicata prevents parties from relitigating matters actually litigated and matters that could have been litigated in the first action." Gray v. Kelly, 161 N.H. 160, 164, 13 A.3d 848 (2010) (quotation omitted). The doctrine "applies if three elements are met: (1) the parties are the same or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final judgment on the merits." Id.

The husband contests both the second and third elements, arguing as to the latter that our decision based upon his failure to preserve constitutional arguments for vacating the attorney's fees award does not constitute a decision on the merits. We are not persuaded, since even a default judgment can "constitute res judicata with respect to a subsequent litigation involving the same cause of action." McNair v. McNair, 151 N.H. 343, 353, 856 A.2d 5 (2004) (quotation omitted). "The essence of the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action," Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 454, 791 A.2d 990 (2002) (quotation omitted), "even though the plaintiff is prepared in the second action to present evidence or grounds or theories of the case not presented in the first action." Id . at 455–56, 791 A.2d 990. Because we consider our decision in Hampers I to constitute a final decision on the merits for the purposes of res judicata analysis, we must determine only whether the petition to modify at issue here involves the same cause of action.

"The term ‘cause of action’ means the right to recover and refers to all theories on which relief could be claimed arising out of the same factual transaction in question." Radkay v. Confalone, 133 N.H. 294, 297, 575 A.2d 355 (1990). "Generally, once a party has exercised the right to recover based upon a particular factual transaction, that party is barred from seeking further recovery, even though the type of remedy or theory of relief may be different." Id. at 298, 575 A.2d 355 ; see also Shepherd v. Town of Westmoreland, 130 N.H. 542, 544, 543 A.2d 922 (1988) (finding barred plaintiff's constitutional and inverse condemnation claims that arose out of the same factual transaction as did her previous claim for a variance).

The husband argues that the divorce proceeding and the present petition to modify are not the same "cause of action" because "a cause of action is the underlying right that is preserved by bringing a suit or action" (quotation omitted), and the underlying right at issue in the divorce proceeding was the bundle of issues connected with the dissolution of a marriage requiring equitable review. The underlying right now at issue, he contends, is his statutory ability to modify his child support payments under RSA 458–C:7 (Supp.2013). He maintains that the attorney's fees award was ancillary to each of these rights, and, therefore, his claim is not barred. We are not persuaded.

In our 2006 opinion on the divorce proceeding, we upheld the enforceability of the standing attorney's fees order, including the portion of the order awarding the wife her reasonable attorney's fees for "any proceeding or any other matter relating to any term of this decree and any amendment thereto or to [the child] in this matter in the future." See Hampers I, 154 N.H. at 289–91, 911 A.2d 14. The husband's current arguments that the standing attorney's fees order is unconstitutional and contrary to law are therefore barred by that determination. See Brzica, 147 N.H. at 455, 791 A.2d 990 (" ‘Cause of action’ has a broad transaction definition in the res judicata context, including the right to recover regardless of the theory of recovery.").

Although attorney's fees may be an ancillary issue, see, e.g., Vinson v. Ass'n of Apartment Owners, 130 Hawai'i 540, 312 P.3d 1247, 1253 (Haw.Ct.App.2013), in Hampers I, it was one of the bases upon which the husband challenged the trial court's order. Hampers I, 154 N.H. at 289–91, 911 A.2d 14. Because "[t]he essence of the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action," Brzica, 147 N.H. at 454, 791 A.2d 990 (quotation omitted), and because we reached a final judgment specifically addressing the propriety of the same attorney's fees order at issue...