In re Hennessey-Martin

• Decision Date: 30 June 2004
• Docket Number: No. 2003–531.,2003–531.
• Court: New Hampshire Supreme Court
• Parties: In the Matter of Dianne (Whitney) HENNESSEY–MARTIN and Michael J. Whitney.

151 N.H. 207

855 A.2d 409

In the Matter of Dianne (Whitney) HENNESSEY–MARTIN and Michael J. Whitney.

No. 2003–531.

Supreme Court of New Hampshire.

Argued: May 5, 2004.

Opinion Issued: June 30, 2004.

Perkins & Puckhaber, P.A., of Concord (Diane M. Puckhaber on the brief and orally), for the petitioner.

Goodnow, Arwe, Ayer, Prigge, Hoppock & Kane, P.C., of Keene (Larry S. Kane on the brief and orally), for the respondent.

DALIANIS, J.

The petitioner, Dianne Hennessey–Martin, appeals an order recommended by a Marital Master (Deborah Kane Rein , Esq.) and approved by the Superior Court (Fitzgerald , J.) ordering her to pay $185.00 per week in child support for her adoptive children to the respondent, Michael J. Whitney. We affirm.

The parties were married in Texas in 1991. In early 1995, they adopted two children, brothers, ages seven and five. The children were deemed "hard to place" due to their ages, sibling relationship, and status as members of a minority race. Because Texas determined that the children could not be placed for adoption with suitable adoptive parents without the provision of adoption assistance, see Tex. Fam.Code. Ann. § 162.301 (2002), Texas provided, and continues to provide, an adoption subsidy, currently $1064.00 per month, which is renewed on a year-to-year basis.

The parties moved to New Hampshire where they were divorced in 1997. The petitioner initially had sole physical custody of the children; however, the respondent assumed physical custody in 1999 because the petitioner had difficulty controlling them. At the time of the divorce, the respondent was managing a successful business, while the petitioner made substantially less income. Nonetheless, the parties agreed that because of the "adoption subsidy," the respondent would contribute no child support to the petitioner. Later, when the respondent assumed custody of the children, the parties continued to agree that the custodial parent receive no child support.

In 2000, the respondent's business failed and he declared bankruptcy. By then, the petitioner was attending law school. In 2001, the respondent filed a petition to modify child support, and the court ordered the petitioner to pay the statutory minimum of $50.00 per month in child support, subject to review upon her anticipated graduation from law school. When the petitioner graduated from law school, the court ordered her to pay child support in the amount of $185.00 per week.

In making its order, the court concluded that the "adoption subsidy" would not count as a set-off against the non-custodial parent's child support obligation, nor suffice as a reason to deviate from the guidelines. The court reasoned that the "purpose of the subsidy was not to benefit a non-custodial parent, but was to provide a custodial parent with an incentive to provide ongoing care for hard-to-place children and to assist with costs associated with raising adopted children." Thus, the court included the adoption subsidy as gross income to the respondent when it calculated the petitioner's support under the guidelines.

The petitioner appeals, arguing that RSA chapter 458–C mandates that the court grant her a credit for the adoption subsidy, or, alternatively, that the court should deviate from the guidelines. See RSA ch. 458–C (Supp.2003). She also argues that the specific purpose of the adoption agreements was to provide support for the child, thus relieving her of her child support obligation. Finally, she contests the trial court's failure to deviate from the guidelines in light of her student loans and the respondent's alleged underemployment. We address each argument in turn.

The petitioner argues that the adoption subsidy should be credited toward her child support obligation. She contends that because her child support obligation is approximately $801.00 per month, and the adoption subsidy is $1064.00 per month, she should pay no child support. We disagree.

In cases 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. State v. McCarthy, 150 N.H. 389, 390, 839 A.2d 22 (2003). We ascribe to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise. Id.

Our first task is to determine how to treat adoption subsidies under our Child Support Guidelines. Adoption subsidies are "provided as part of a joint federal and state plan to promote and subsidize the adoption of children with special needs." Hamblen v. Hamblen, 203 Ariz. 342, 54 P.3d 371, 373 (2002). The federal plan, passed in 1980 as part of the Adoption Assistance and Child Welfare Act, provides federal reimbursements to States that pay benefits to parents who adopt children with special needs. 42 U.S.C. §§ 670 et seq . (2000) ; see Hamblen, 54 P.3d at 373. "Every state now has an adoption assistance program." Hamblen, 54 P.3d at 373; see also Tex. Fam.Code. Ann. § 162.301 ; RSA ch. 170–F (2002); In re Darien S., 82 Conn.App. 169, 842 A.2d 1177, 1182 n. 7 (2003).

We recognize that a few intermediate appellate courts have determined, under their respective child support guidelines, that adoption subsidies qualify as income to the child. None of these cases, however, were decided under RSA chapter 458–C, the New Hampshire Child Support Guidelines, and each of them involve statutes different from our statute. See In re Marriage of Newberry, 346 Ill.App.3d 526, 282 Ill.Dec. 21, 805 N.E.2d 640, 643 (2004) ; Strandberg v. Strandberg, 664 N.W.2d 887, 889–90 (Minn.Ct.App.2003) ; Hamblen, 54 P.3d at 374–75.

We hold that adoption subsidies qualify as gross income under RSA chapter 458–C and, thus, affirm the master's ruling below. "Gross income" is broadly defined as:

all income from any source, whether earned or unearned, including ... wages, salary ... social security benefits, trust income ... and payments from other government programs (except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security income, food stamps, and general assistance received from a county or town)....

RSA 458–C:2, IV.

While there is no specific provision for adoption subsidies, the legislature does provide for the inclusion of "other government programs" within the definition of gross income, so long as those programs are not "public assistance programs." Id. "Public assistance programs" are not defined, for the purposes of RSA chapter 458–C, but the legislature does provide examples of such programs. In each instance, eligibility for "public assistance programs" is determined by a showing of economic need. See RSA 167:4, I (2002) (persons eligible to receive food stamps if they do not have "sufficient income or other resources to provide a reasonable subsistence compatible with decency and health"); RSA 165:1–a, :1–c (2002) (general assistance from a county or town provided to any person "who is poor and unable to support himself"); RSA 167:5, I (2002) (aid to families with dependent children and aid to the permanently and totally disabled granted upon a showing of need); 42 U.S.C. § 1382(a)(1), (c)(1) (2000) (Supplemental Security Income provides a minimum income for disabled people based upon need). We infer, based upon the legislature's intent as expressed in RSA 458–C:3, IV (obligor parent not required to pay child support when such order would put the parent below the self-support reserve) and from the nature of the listed programs, that the legislature's intent in excluding these and other such public assistance programs from inclusion in the definition of gross income was to assure that obligor parents and their families would not be forced into extreme poverty in order to pay child support.

Adoption assistance programs, unlike other public assistance programs, are not based upon adoptive parents' levels of income; instead, the use of a "means test" is "prohibited in the process of selecting a suitable adoptive family, or in negotiating an adoption assistance agreement, including the amount of the adoption assistance payment." Child Welfare Policy Manual § 8.2A.2 (September 24, 2001) (citing U.S. Dep't of Health and Human Services Policy Announcement ACYF–CB–PA–01–01 (January 23, 2001) ); see 45 CFR § 1356.40(c). The principle of ejusdem generis provides that, where specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words. State v. Meaney, 134 N.H. 741, 744, 599 A.2d 120 (1991). Because the adoption assistance program is not similar in nature to the programs described as "public assistance programs" in RSA 458–C:2, IV, we conclude that an adoption subsidy should be included in the calculation of gross income as an "other government...