In re Johnson

• Decision Date: 09 April 2009
• Docket Number: Nos. 2008–012,2008–548.,s. 2008–012
• Citation: 158 N.H. 555,969 A.2d 365
• Court: New Hampshire Supreme Court
• Parties: In The Matter of Janice JOHNSON and Mark Johnson.

158 N.H. 555

969 A.2d 365

In The Matter of Janice JOHNSON and Mark Johnson.

Nos. 2008–012

2008–548.

Supreme Court of New Hampshire.

Argued: Jan. 9, 2009.

Opinion Issued: April 9, 2009.

Janice Johnson, by brief and orally, pro se.

Gottesman & Hollis, P.A., of Nashua (Anna Barbara Hantz on the briefs and orally), for Mark Johnson.

BRODERICK, C.J.

In these two related, but not consolidated, cases, Mark Johnson (husband) and Janice Johnson (wife), respectively, appeal successive orders of the Superior Court (Groff, J.; Love, M.) that: (1) first denied the husband's petition to terminate child support; but (2) later terminated his child support obligation and dismissed the wife's cross-petition to modify child support. We affirm both orders.

I

The record supports the following. Janice and Mark Johnson are the parents of three daughters born in 1981, 1984 and 1989. The couple divorced in November 1993. The final decree of divorce "approved and incorporated" their permanent stipulation, including Paragraph 5.C ("SUPPORT"), which states in pertinent part:

The [husband's] obligation for support of the parties' minor children shall continue until ... the obtainment of age eighteen (18) or graduation from high school, whichever occurs later.

Paragraph 13.B ("PRIVATE SCHOOLS/POST SECONDARY EDUCATION EXPENSES") of the same stipulation provides, in pertinent part, as follows:

Therefore, at such time as their children shall matriculate to an accredited college or university having as an objective the attaining of a degree from that institution, provided that the children have made their own reasonable efforts regarding contribution to expenses, both the [wife] and the [husband] shall contribute to the college education of their minor children, including both tuition and room and board, to the best of their ability at that time. The parties' obligation shall not exceed beyond the acquisition of a bachelor's degree and not be beyond the age of 24 which ever shall occur first. For the purpose of this Permanent Stipulation, college education expenses shall include but are not limited to college start up expenses such as SAT fees, college application fees, travel expenses to visit college and other related costs and expenses as well as tuition, room, board, books, fees, reasonable allowances and reasonable travel to and from college to the student's principal residence.... The [husband] shall have a right to participate in the selection and financing of the child's post secondary education.

In February 1999, in response to the wife's petition requesting the court to determine the husband's specific contribution towards their oldest daughter's college expenses, the Trial Court (Hampsey, J.) ordered:

The [wife] is not requesting any specific assistance for college-related expenses. Rather, she is requesting the continuation of child support as long as a child is a full-time college student. Upon due consideration, I find the [wife's] request to be fair, appropriate and reasonable. Accordingly, the [husband] shall be required to pay child support for any child that is enrolled as a full-time college student so long as the child remains a full-time college student. On the other hand, the [husband] shall have no further obligation regarding assistance for the college-related expenses for any of the children.

The husband unsuccessfully moved for reconsideration and we declined his appeal.

In May 2001, the Trial Court (Groff, J.) approved the parties' proposed modification to their permanent stipulation. In the paragraph entitled "Child Support, " the parties' stipulated as follows:

A. [The husband] shall pay to the [wife] the sum of $222.00 per week as child support beginning April 1, 2001 for the parties' children in accordance with the New Hampshire Child Support Guidelines. In accordance with the [February 1999 court order], the [husband] shall be required to pay child support for any child that is enrolled as a full-time college student so long as the child remains a full-time college student. Said child support payments will continue to be made through the wage assignment already in place payable through the Division. Arrearage payments will continue at the rate of $20.00 per week until said arrearage is paid in full.

B. Both parties[ ] agree not to seek a modification of child support [any] earlier than January 1, 2004.

In May 2007, the husband petitioned to terminate his child support obligation. The parties' oldest daughter had graduated from college, their second daughter was in graduate school, and the youngest child was eighteen and soon to graduate from high school. In September 2007, after a hearing conducted on offers of proof, the Trial Court (Groff, J.; Love, M.) denied the husband's petition. Citing In the Matter of Donovan & Donovan, 152 N.H. 55, 871 A.2d 30 (2005), the court held that the child support order "was specifically intended to implement the [husband's] obligation to contribute towards college expenses" and that the "continuance of child support as the [husband's] contribution towards college involves a substantive right." (Emphasis omitted.) The husband's motion for reconsideration was denied, and he appealed.

In January 2008, while his appeal of the September 2007 order was pending, the husband petitioned to modify his college contribution. Pursuant to RSA 458–C:7 (Supp.2008), the wife cross-petitioned to modify child support, citing an increase in the husband's income. During an evidentiary hearing on the petition and cross-petition, the wife argued that the only existing order was one for child support through the college years, and that the husband's petition was moot because it requested modification of a non-existent order. In June 2008, the trial court ordered the termination of the husband's child support obligation, as of April 1, 2008, fixed his college contribution for their youngest daughter's freshman year at what he had already paid through March 2008, and dismissed the wife's cross-petition. The court further ordered that the husband's future college contribution would be fifty percent of each future semester's expenses for the youngest daughter, not to exceed $3,000 per semester. The wife unsuccessfully moved for reconsideration, and appealed. We first turn to the husband's appeal.

II

"The court's powers in custody, maintenance, and education of children in divorce and separation cases are conferred entirely by statute. 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." In the Matter of Goulart & Goulart, 158 N.H. 328, 330, 965 A.2d 1068 (2009) (citation and quotations omitted). "The party challenging the court's order has the burden of showing that the order was improper and unfair." In the Matter of Gilmore & Gilmore, 148 N.H. 111, 112, 803 A.2d 601 (2002) (quotation omitted).

In his appeal of the trial court's September 2007 order denying his petition to terminate the previously-ordered child support, the husband argues that, "[p]ursuant to RSA 461–A:14, IV, a parent's child support obligation, including all educational obligations, ‘terminates without further legal action’ when the child turns eighteen or graduates from high school, whichever is later." The current statutory language cited by the husband, however, does not apply in this case.

Prior to the October 1, 2005 effective date of RSA 461–A:14, IV (Supp.2008), the duration of child support obligations was governed by RSA 458:35–c (2004) (repealed October 1, 2005; recodified as RSA 461–A:14, IV). The 1999 and 2001 trial court orders required the husband to pay child support for any of his daughters enrolled as full-time college students for so long as the child remained a full-time college student, and approved the parties' modification to their permanent stipulation that fixed child support at $222 per week. At the time of the 1999 and 2001 orders, however, RSA 458:35–c (1992) read, in pertinent part, as follows:

Unless the court or other body empowered by law to issue and modify support orders specifies differently, the amount of a child support obligation stated in the order for support shall remain as stated in the order until all dependent children for whom support is provided in the order shall terminate their high school education or reach the age of 18 years, whichever is later ... at which time the child support obligation terminates without further legal action.

(Emphasis added.) The underlined language was removed from the statute, effective May 19, 2004.

Consequently, pursuant to the governing statute at the time, both the 1999 and 2001 orders specified that the husband would be obligated to pay child support "for any child that is enrolled as a full-time college student so long as the child remains a full-time college student," and that amount was fixed at $222 per week as of April 2001. We have previously held that RSA 458:17, XI-a ("No child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school.") (effective February 2, 2004; repealed October 1, 2005; recodified as RSA 461–A:14, V), had prospective application only, and did not apply to post-enactment modifications of orders that were issued prior to the change in legislation. See Donovan & Donovan, 152 N.H. at 61–64, 871 A.2d 30; In the Matter of Forcier & Mueller, 152 N.H. 463, 466, 879 A.2d 1144 (2005). For the identical reasons, it follows that the amendment to RSA 458:35–c, later recodified as RSA 461–A:14, IV, has prospective application only, and does not apply to post-enactment modifications of orders that were issued prior to the change in legislation. See

Donovan & Donovan, 152 N.H. at 61–64, 871 A.2d 30 (new statute does not require vacating a pre-existing order that requires parents to contribute to their children's...