In re Sanborn
| Decision Date | 14 July 2021 |
| Docket Number | No. 2020-0080,2020-0080 |
| Citation | 174 N.H. 343,262 A.3d 334 |
| Parties | In the MATTER OF Lura SANBORN and Jeffrey Bart |
| Court | New Hampshire Supreme Court |
Orr & Reno, P.A., of Concord (Jeremy D. Eggleton and Judith A. Fairclough on the brief, and Mr. Eggleton orally), for the petitioner.
Sheehan Law Office, PLLC, of Concord (Patrick J. Sheehan on the brief and orally), for the respondent.
The respondent, Jeffrey Bart (Husband), appeals, and the petitioner, Lura Sanborn (Wife), cross-appeals, a final decree of divorce issued by the Circuit Court (McIntyre, J.). Husband also appeals the trial court's order, issued after this appeal was filed, granting Wife's motion to enforce the temporary decree as to the payment of property taxes on the marital home. We affirm in part, vacate in part, and remand.
We briefly recite the following facts found by the trial court; additional facts will be recited below as needed to address specific issues raised by the parties. The parties were married in 2005 and have one child. Wife is employed as a librarian at a private school. Husband is involved in the operation of a family-owned candy business (GSCS) established by Husband's grandfather in 1927. At the time the final decree was issued, Husband was the controlling member of two limited liability companies that own and operate GSCS and the property on which one of its stores is located. CMJ Associates, LLC (CMJ) is the entity that owns the real property housing one of GSCS's stores and several residential apartments.
Wife filed a petition for divorce in September 2017 and Husband cross-petitioned. The court issued a final decree of divorce in November 2019. Wife filed a motion for reconsideration and/or clarification and Husband filed a motion for reconsideration. The court corrected and clarified its final decree in minor respects, but otherwise denied both motions. This appeal and cross-appeal followed. Subsequently, Wife filed a motion asking the trial court to allow her to sell or refinance the marital home and to order Husband to cooperate with that process, which the trial court denied. Wife then filed a motion with the trial court to enforce the temporary decree with respect to taxes on the marital home. The trial court granted that motion and denied Husband's motion for reconsideration. Husband filed an assented-to motion to add a question with this court, seeking review of the trial court's order enforcing the temporary decree, which we granted. See Sup. Ct. R. 16(3)(b).
This appeal and cross-appeal now present the following issues for our review. Husband argues that the trial court erred in: (1) issuing a child support order that provided for "automatic modifications of child support in the future"; (2) adjusting the property distribution to account for marital funds used by Husband for his legal fees, but failing to make the same adjustment for Wife; and (3) modifying the final decree after an appeal had been filed. Wife argues that the trial court erred in: (1) determining Husband's gross income for purposes of child support; (2) dividing the marital estate unequally in favor of Husband; and (3) awarding final alimony with an amount and duration inconsistent with its own findings. Any issues raised in a party's notice of appeal but not briefed are deemed waived. See In the Matter of Ross & Ross, 169 N.H. 299, 304, 146 A.3d 1232 (2016).
Husband first challenges the final order's provision for child support, which states, in relevant part:
Should [Husband] receive additional income (to include without limitation, guaranteed payments, wages, distributions, dividends or other compensation) such that his income in any tax year exceeds $9718/month or $116,616/year, he shall pay additional child support on such additional income. Any additional income shall be run through the New Hampshire Child Support Guidelines Worksheet. The additional income shall be calculated no later than April 15 and paid within ten days of the recalculation. For so long as [Husband] has an obligation to pay child support, the parties shall annually exchange all state and federal tax returns (by April 15 of each year) and in addition, [Husband] shall provide all partnership returns within 30 days of their filing as well as draw/distribution records for CMJ and GSCS, as well as all schedules, 1099[s], and k-1s.
"We 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 Silva & Silva, 171 N.H. 1, 4, 188 A.3d 285 (2018).
Husband does not object to the annual exchange of tax returns, but challenges the provision for recalculation of child support, which, for ease of reference, we will refer to as the "escalation clause." Husband contends that the escalation clause violates the "clear statutory conditions for the review and modification of child support orders" set forth in RSA 458-C:7 by not requiring Wife to apply for a modification of the child support order and show a substantial change of circumstances. See RSA 458-C:7 (2018). He further contends that, because a trial court has "no discretion to modify any child support order beyond the date of ‘notice’ to" the opposing party, In the Matter of Birmingham & Birmingham, 154 N.H. 51, 58, 904 A.2d 636 (2006) (quotation omitted), the trial court lacked authority to "order[ ] that the new amount of child support would be owed retroactively to the beginning of the prior calendar year."
Husband's arguments are misplaced because the escalation clause is not a modification of a support order and, therefore, is not governed by RSA 458-C:7. Rather, recalculation of the amount of child support under the escalation clause merely implements the existing final order according to its terms. Cf. Madison v. Madison, 859 P.2d 1276, 1278, 1280 (Wyo. 1993) (). Moreover, we see nothing in the remainder of RSA chapter 458-C that specifically prohibits such a clause.
We previously considered escalation clauses in Heinze v. Heinze, 122 N.H. 358, 444 A.2d 559 (1982), and In the Matter of Donovan & Donovan, 152 N.H. 55, 871 A.2d 30 (2005). In Heinze, we upheld "a clause automatically escalating the amount of child support with increases in the [obligor's] wages." Heinze, 122 N.H. at 360-61, 444 A.2d 559. Subsequently, in Donovan, we struck down a child support order provision that stated the "[o]bligor's child support obligation shall be reviewed annually and adjusted for inflation in accordance with the Consumer Price Index" (CPI). Donovan, 152 N.H. at 65, 871 A.2d 30 (quotation omitted).
Husband challenges the continued validity of Heinze, noting that it "was decided in 1982 before passage of the existing child support statute, including RSA 458-C:7 (circa 1991) which established the current statutory scheme for the modification of child support orders." As we noted above, however, implementation of the escalation clause does not modify the child support order contained in the final decree and nothing in the current statute precludes such a clause. We further note that we did not strike down the escalation clause in Donovan in 2005 as being either contrary to the modification statute or invalid per se. See Donovan, 152 N.H. at 65, 871 A.2d 30. Rather, as discussed below, we distinguished Heinze and concluded that the particular escalation clause at issue was "inconsistent with the child support guidelines because it require[d] adjustments to the father's support obligation that are independent of actual changes in the parties’ incomes." Id. Accordingly, we conclude both that Heinze remains good law and that escalation clauses are not invalid per se. Cf. Petersen v. Petersen, 85 N.J. 638, 428 A.2d 1301, 1303 (1981) ().
We now consider whether the particular escalation clause used in this case is valid. Wife contends that the escalation clause in this case is analogous to the one we upheld in Heinze, and unlike the clause we struck down in Donovan, because the order in this case "directly ties the annual adjustment, if any, to the actual changes, if any, in the parties’ incomes." We agree. As we explained in Donovan, the statutory child support formula in New Hampshire "is known as the income-shares model," under which "the parents’ total net income is multiplied by a percentage based upon the number of children, then the resulting total support obligation is divided between the parents in proportion to their respective incomes." Donovan, 152 N.H. at 64, 871 A.2d 30 (quotation omitted); see RSA 458-C:3, I, II(a), (b) (2018). We held that the escalation clause in Donovan violated the statutory scheme because, "[u]nlike the escalation clause in Heinze, the CPI provision [was] not tied to changes in the parties’ total net income." Donovan, 152 N.H. at 65, 871 A.2d 30. The escalation clause in this case does not suffer from the same defect.
Here, the escalation clause is triggered if Husband's "income in any tax year exceeds $9718/month or $116,616/year," and, thus, is tied to changes in Husband's income. The order also directs that Husband's additional income, if any, "shall be run through the New Hampshire Child Support Guidelines Worksheet" to determine the amount of...
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...with this order. Any issues raised in the notice of appeal that were not briefed are deemed waived. See In the Matter of Sanborn & Bart, 174 N.H. 343, 346 (2021). Affirmed in part; vacated in part; and remanded. MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred; HANTZ MARCONI......