In re Jerome

• Court: New Hampshire Supreme Court
• Writing for the Court: BRODERICK, C.J.
• Citation: In re Jerome, 150 N.H. 626, 843 A.2d 325 (N.H. 2004)
• Decision Date: 08 March 2004
• Docket Number: No. 2003–380.,2003–380.
• Parties: In the Matter of Toni E. JEROME and Raymond W. Jerome.

150 N.H. 626

843 A.2d 325

In the Matter of Toni E. JEROME and Raymond W. Jerome.

No. 2003–380.

Supreme Court of New Hampshire.

Argued: Jan. 15, 2004.

Opinion Issued: March 8, 2004.

McGrath Law Firm, P.A., of Concord (Peter McGrath and Andrew J. Piela on the brief, and Mr. Piela orally), for the petitioner.

Braiterman Law Offices, of Concord (David J. Braiterman on the brief and orally), for the respondent.

BRODERICK, C.J.

The petitioner, Toni E. Jerome, appeals an order of the Superior Court (Burling , J.) modifying the parties' child support obligations to include her personal injury annuity as income for child support purposes. We affirm.

The record supports, or the parties agreed to, the following facts. The petitioner and the respondent, Raymond W. Jerome, were married in 1984 and had a son in 1987. In 1985, the parties sued a security company for personal injuries the petitioner sustained. The case was settled in 1987 for $1 million. Of this sum, the parties received $440,000 in a lump sum payment and the remaining $560,000 was used to purchase an annuity for the petitioner's benefit. Under its terms, the petitioner was to receive: (1) $2,083 monthly for twenty-seven years, ending on January 1, 2014; (2) $4,166 monthly from February 1, 2014 for life thereafter; and (3) ten lump sum payments of $100,000 every five years beginning on February 1, 1992.

The parties divorced in 1996. In their divorce stipulation, they agreed that the petitioner would pay the respondent a lump sum of $50,000 and that the remaining annuity payments would belong to her, "free and clear of any interest of the [respondent]."

The parties agreed to joint legal custody of their son. The petitioner was to have primary physical custody and the respondent was granted liberal visitation rights. They agreed that child support would be in accordance with the child support guidelines and that the guidelines would govern "all [such] payments." See RSA ch. 458–C. Initially, the respondent was to pay the petitioner $172 per month for the child's support. Although the petitioner included the annuity payments in her support affidavit, the parties elected not to count these payments as income in calculating their child support obligations.

In June 2002, the respondent petitioned to modify the custody arrangement. He sought primary physical custody of the child because the petitioner had indicated that their son could no longer live with her and because her boyfriend had physically threatened the child. The court issued a temporary order that awarded the respondent primary physical custody and directed the petitioner to pay child support. It further ruled that the petitioner's annuity payments were not income for purposes of calculating child support under the guidelines. Its ruling was based upon the parties' 1996 divorce papers, which the court found reflected that the parties treated the annuity as property. The respondent moved for reconsideration, which the court denied.

The trial court revisited the issue of whether the petitioner's annuity payments were income for child support purposes following a hearing related to her failure to pay her son's medical bills. The respondent argued that the court should have included the monthly annuity payments as income; the petitioner disagreed. See RSA 458–C:2, IV (1992). The parties agreed, however, that no special circumstances warranted deviation from the uniform child support guidelines. See RSA 458–C:5 (Supp.2003). The court ruled that its temporary order excluding the annuity payments from the child support calculation was error. Accordingly, it recalculated child support to include them.

On appeal, the petitioner contends that the trial court erred by: (1) treating her annuity payments as income for child support purposes; (2) modifying the parties' marital property settlement; and (3) modifying her child support obligation as of the date of the respondent's petition to modify. We address each contention in turn.

Trial courts have broad discretion in reviewing and modifying child support orders. In the Matter of Breault & Breault, 149 N.H. 359, 361, 821 A.2d 1118 (2003). Because trial courts "are in the best position to determine the parties' respective needs and their respective abilities to meet them," we will overturn modification orders only if it clearly appears that the trial court engaged in an unsustainable exercise of discretion. Id.

I

The petitioner first argues that her annuity payments are not "income" within the meaning of RSA chapter 458–C. When construing a statute's meaning, we are the final arbiters of legislative intent. Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585, 825 A.2d 480 (2003). We examine the statute's language, ascribing to its words their plain and ordinary meanings, see id., and interpret it in the context of the overall legislative scheme and not in isolation, Big League Entm't v. Brox Indus., 149 N.H. 480, 483, 821 A.2d 1054 (2003).

For the purposes of calculating a parent's child support obligation, RSA 458–C:2, IV defines gross income 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 other government programs ... including, but not limited to, workers' compensation, veterans' benefits, unemployment benefits, and disability benefits....

(Emphasis added.) Plainly, annuities are listed in the statute. Pursuant to the legislative scheme, all items includable as "gross income" are to be used to determine the parties' total support obligation. In the Matter of Feddersen & Cannon, 149 N.H. 194, 197, 816 A.2d 1033 (2003) ; see RSA 458–C:3 (Supp.2003). We conclude, therefore, that a plain reading of the statute supports the trial court's inclusion of the annuity receipts in the petitioner's gross income for child support purposes.

The petitioner contends that no portion of her personal injury settlement was intended to compensate her for lost income and, therefore, it should not be included in her gross income for child support purposes. See Villanueva v. O'Gara, 282 Ill.App.3d 147, 218 Ill.Dec. 105, 668 N.E.2d 589, 592–93 (1996). She asserts that her settlement was intended to make her whole and should not have been treated as income to calculate her child support obligation. See id.

The plain language of the statute, however, refutes the petitioner's argument. The statutory definition of "gross income" is not limited to wages and wage equivalents; for example, it includes items such as "lottery or gambling winnings," "alimony," "interest," and "dividends." RSA 458–C:2, IV. The statute, by its plain terms, excludes payments from public assistance programs from the definition of "gross income"; it does not exclude proceeds from personal injury settlements. Id. We cannot limit the definition of "gross income" as the petitioner suggests by adding language to the statute that the legislature did not see fit to include. See Monahan–Fortin Properties v. Town of Hudson, 148 N.H. 769, 771, 813 A.2d 523 (2002).

Nor can we presume that, when the legislature used the word "annuities," it intended to refer to certain annuities and not others. We cannot create a judicial exception to the statute's plain language or impose upon the statute policy considerations that the plain language does not support. We can examine only what the legislature said, not what it might have said. Progressive N. Ins. Co. v. Enterprise Rent–A–Car Co., 149 N.H. 489, 490, 821 A.2d 991 (2003). Absent any indication that the legislature intended the word "annuities" to mean all annuities except those from a personal injury settlement, we assume that the legislature intended to include all annuities, regardless of their source. See Sherburne County Social Serv. v. Riedle, 481 N.W.2d 111, 112 (Minn.Ct.App.1992).

Including the annuity payments in this case as income is not only required by the plain language of the statute but is also consistent with its stated purpose: To "minimize the economic consequences [of divorce] to children." RSA 458–C:1 (1992); see In the Matter of Dolan and Dolan, 147 N.H. 218, 221, 786 A.2d 820 (2001). Doing so also complies with one of the guiding principles of RSA chapter 458–C, which is that "[t]he children in an obligor's initial family are entitled to a standard of living equal to that of the obligor's subsequent families." RSA 485–C:1, II. The parties' son would have enjoyed the standard of living made possible by the annuity payments had the parties remained married. Their divorce did not negate his entitlement.

Courts in other States with statutes that, like RSA 458–C:2, IV, define income for child support purposes to include annuities have ruled similarly. See Capano v. Capano, Nos. CN91–8348, 899–91, 1992 WL 91573, at *3–4 (Del.Fam.Ct. Mar. 30, 1992) ; Riedle, 481 N.W.2d at 112; Taranto v. Dept. of Social Services, 962 S.W.2d 897, 900–01 (Mo.Ct.App.1998) ; cf . In re Marriage of Fain, 794 P.2d 1086, 1087 (Colo.Ct.App.1990) (ruling that it was proper to include father's payments from structured settlement of personal injury lawsuit where statute broadly defined "gross income" to include "income from any source" and did not specifically exclude personal injury benefits); Arneson v. Arneson, 670 N.W.2d 904, 914–16 (S.D.2003) (annuity payments from structured settlement of medical malpractice suit were either income to or assets of father available for child support purposes; however, court affirmed lower court's equitable discretion to exclude portions of settlement necessary for husband's care).

For instance, the relevant statute in Riedle , like RSA 458–C:2, IV, defined income to include annuity payments. Riedle , 481 N.W.2d at 112. The court concluded that the statutory...