In re Regan

• Decision Date: 18 July 2012
• Docket Number: No. 2011–701.,2011–701.
• Citation: 164 N.H. 1,48 A.3d 920
• Parties: In the matter of Susan J. REGAN and Steven S. Regan.
• Court: New Hampshire Supreme Court

164 N.H. 1

48 A.3d 920

In the matter of Susan J. REGAN and Steven S. Regan.

No. 2011–701.

Supreme Court of New Hampshire.

Argued: April 11, 2012.

Opinion Issued: July 18, 2012.

Hamblett & Kerrigan, P.A., of Nashua (Andrew J. Piela on the brief and orally), for the petitioner.

Gawryl MacAllister & O'Connor, of Nashua (Jared O'Connor on the brief and orally), for the respondent.

DALIANIS, C.J.

The respondent, Steven S. Regan (father), appeals an order recommended by a Marital Master (Lemire, M.) and approved by the 9th Circuit—Manchester Family Division (Emery, J.) that, among other things: (1) declined to modify his obligations to carry life insurance and pay half of his minor daughter's uninsured medical expenses even though paying these amounts reduced his monthly income below the statutory self-support reserve, see RSA 458–C:3, IV(b) (2004); and (2) required him to exchange custody of his daughter at a police station, rather than at the parties' homes. We affirm in part, reverse in part, and remand.

The record contains the following facts. The father and the petitioner, Susan J. Regan (mother), have been divorced since 2008. They have four daughters. When the parties divorced, they agreed in a permanent stipulation that each would carry life insurance for their children's benefit. Their uniform support order also required each to pay half of the children's uninsured medical expenses.

In March 2011, the mother moved to modify the parties' parenting plan. Among other things, she requested that exchanges of custody occur at a police station, arguing that this arrangement would resolve misunderstandings that had complicated exchanges.

The father objected and also moved to reduce his child support obligation. He alleged that, since the divorce, his base pay (subject to the possibility of commissions) had dropped from $30,000 per year to $24,000 per year. As a result of this decrease, he argued that he was unable to pay: (1) his full child support obligation; (2) life insurance premiums; and (3) his half of orthodontic expenses that the couple expected to incur on behalf of their youngest child.

The trial court found that the father's reduction in income constituted a "substantial change of circumstances" and it recalculated his child support obligation using the child support guidelines. RSA 458–C:7, I(a) (Supp.2011); see RSA ch. 458–C (Supp.2011). Based upon the number of children to be supported and the ratio of the father's gross income to the mother's, the trial court found that the father's new support obligation should have been $359.13 per month. Payment of this amount, however, would have reduced the father's income below the statutory self-support reserve, in violation of RSA 458–C:3, IV(b). Thus, to comply with the statute, the court reduced the father's monthly child support obligation by $3.13, which allowed him to retain a monthly base income equal to the $1,044 self-support reserve.

Although the court found that the father's reduction in income required reducing his child support obligation, it found "no basis to modify" the father's obligation to pay for half of his daughter's orthodontic expenses, and similarly declined to reduce the amount of life insurance he was obliged to carry. The court also granted the mother's motion that future custody exchanges take place at a police station. After unsuccessfully moving for reconsideration, the father appealed.

On appeal, we will affirm the findings and rulings of the trial court unless they are unsupported by the evidence or legally erroneous. In the Matter of Cole & Ford, 156 N.H. 609, 610, 939 A.2d 750 (2007). We will set aside a modification order only if it clearly appears from the evidence that the trial court's exercise of discretion was unsustainable. Id.

I. Effect of Statutory Self–Support Reserve

In arguing that the trial court erred by declining to modify his obligation to pay half of the children's uninsured medical expenses and maintain life insurance for their benefit, the father relies primarily upon the self-support reserve statute. See RSA 458–C:3, IV(b). That statute forbids imposing child support obligations that reduce a parent's income below a statutory self-support reserve. See id. The father argues that the trial court either violated RSA 458–C:3, IV(b) by ordering him to pay additional amounts for insurance and orthodontic treatment, or, alternatively, that its order constitutes an unsustainable exercise of discretion given his limited income.

To address these arguments, we must construe RSA 458–C:3, IV(b) and other relevant portions of the child support guidelines. We are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. In the Matter of Coderre & Coderre, 148 N.H. 401, 403, 807 A.2d 1245 (2002). We interpret legislative intent from the statute as written, and, therefore, we will not consider what the legislature might have said or add words that the legislature did not include. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id. Addressing the parties' arguments also requires us to interpret their permanent stipulation approved and ordered in their divorce decree. In interpreting the meaning of a divorce decree, we review the decree de novo. In the Matter of Georgakilas & Georgakilas, 157 N.H. 662, 664, 956 A.2d 320 (2008). We consider the intent of the parties as expressed in the language of the stipulation. Id.

Under RSA 458–C:3, IV(b):

If the obligor parent's gross income is greater than the self-support reserve but payment of the order as calculated under this chapter would reduce the obligor parent's income below the self-support reserve, the obligor parent's share of the total support obligation shall be presumed to be the difference between the self-support reserve and that parent's adjusted gross income, but in any event shall be no less than [fifty dollars,] the amount of a minimum support order.

(Emphasis added.) See RSA 458–C:2, V (defining "[m]inimum support order").

The language "as calculated under this chapter" effectively limits the scope of the self-support reserve's protection to orders made pursuant to the child support guidelines in RSA chapter 458–C. RSA 458–C:3, IV(b). Thus, although income is a proper consideration for support orders not governed by the child support guidelines, the self-support reserve's terms make clear that its bright-line limitations do not apply to such awards. See, e.g., RSA 458:19, I(b) (2004) (making alimony available only when the obligor is able to "meet reasonable needs," but not establishing a specific minimum income that may not be used to pay alimony). Therefore, to the extent the father argues that RSA 458–C:3, IV(b) extends to "non-child support obligations," the statute's plain language forecloses his argument.

As a result, to determine whether preservation of the father's self-support reserve requires vacating the orders to pay orthodontic expenses and life insurance premiums, we must first determine whether these payments are calculated "under [the child support] chapter." RSA 458–C:3, IV(b). If the payments are child support, then the father's total child support obligation reduced his monthly income below the self-support reserve in violation of RSA 458–C:3, IV(b). If the payments are not child support, then RSA 458–C:3, IV(b), by its terms, does not govern them.

We conclude that payments for "medical costs not covered by insurance" constitute child support for purposes of calculating the self-support reserve. RSA 458–C:2, IV-a; see RSA 458–C:3. Accordingly, we vacate the trial court's order requiring the father to pay orthodontic expenses because payment of such expenses would reduce his income below the self-support reserve in violation of RSA 458–C:3, IV(b). The parties agree, however, that payment of life insurance premiums does not constitute child support, and based upon the facts of this case, we uphold the trial court's order requiring the father to maintain life insurance for his daughters' benefit.

A. Orthodontic Expenses

We turn first to the father's argument that ordering him to pay half of his daughter's anticipated orthodontic expenses violates the self-support reserve statute. In In the Matter of Coderre & Coderre, 148 N.H. at 404–05, 807 A.2d 1245, we held that uninsured medical expenses, a category that the parties agree includes the orthodontic treatment at issue, are not part of the general obligation to provide child support under RSA chapter 458–C.

Coderre relied upon the absence of uninsured medical expenses from child support guideline calculations and a requirement in RSA 458:17, IX (2004) that the court make determinations and findings relative to uninsured medical expenses. In the Matter of Coderre & Coderre,

148 N.H. at 404, 807 A.2d 1245. In 2005, the legislature recodified that statute as RSA 461–A: 14, IX (Supp.2011). See Laws 2005, 273:1,:20. Then in 2007, the legislature significantly amended both this statute and the child support guidelines generally. See Laws 2007, ch. 227.

The amendments create a new obligation, the "[m]edical support obligation," and govern its calculation, its treatment under the child support guidelines, and the manner in which expenditures are to be made. RSA 458–C:2, IV-a; see Laws 2007, ch. 227. " ‘Medical support obligation’ means the obligation of either or both parents to provide health insurance coverage for a dependent child and/or pay ... for medical costs not covered by insurance, including payment for the cost of premiums, co-payments, and deductibles." RSA 458–C:2, IV-a. This amendment effectively brings " medical costs not covered by insurance," the very costs that In the Matter of Coderre & Coderre, 148 N.H. at 404, 807 A.2d 1245, noted did not appear in RSA chapter 458–C, within that chapter.

Additional amendments to the child support guidelines govern the amount each parent should pay...