In re State

Decision Date13 June 2014
Docket NumberNo. 2013–359,2013–359
Citation166 N.H. 353,96 A.3d 970
Parties In the MATTER OF the STATE of New Hampshire and Cory R. Lounder.
CourtNew Hampshire Supreme Court

Sederquest Law Office, of Peterborough (Rachel Sederquest on the brief), for the respondent.

Joseph A. Foster, attorney general, for the State, filed no brief.

The petitioner, self-represented, filed no brief.

LYNN, J.

The respondent, Cory R. Lounder, appeals an order of the Superior Court (Kissinger, J.) denying his petition to modify child support. He argues that the trial court erred by concluding that his incarcerated status made him ineligible for a reduction in support. We reverse and remand.

The following facts were found by the trial court or are supported by the record. In November 2009, the trial court approved a uniform support order that obligated the respondent to pay $109 per week in child support to the mother of his children. At that time, the respondent was employed full-time and earning $9.50 per hour. He was subsequently convicted of arson, for which he was sentenced to prison in February 2013. He is ineligible for release before 2016. As a consequence of his incarceration, the respondent lost his employment and has no other sources of income. In August 2012, he filed a petition requesting a reduction in his support obligation to $50 per month, the minimum support order, based upon a substantial change of circumstances. See RSA 458–C:7, I(a) (2004 & Supp.2013).

Following a hearing, the court denied the respondent's petition, stating: "[The respondent's] incarcerated status does not warrant a reduction in his child support obligation." The respondent moved for reconsideration, which the court denied "for the reasons discussed in Noddin v. Noddin, 123 N.H. 73, 76, 455 A.2d 1051 (1983)." This appeal followed.

On appeal, the respondent argues that the trial court erred: (1) by concluding that his incarcerated status did not qualify as a substantial change of circumstances; and (2) by equating incarceration with voluntary unemployment.

We first address whether the trial court erred by ruling that the respondent's incarceration did not qualify as a substantial change of circumstances. "Because trial courts are in the best position to determine the parties' respective needs and their respective abilities to meet them, 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 Muller & Muller, 164 N.H. 512, 520–21, 62 A.3d 770 (2013) (citation omitted).

To resolve this appeal, we must interpret RSA chapter 458–C (2004 & Supp.2013). "The interpretation of a statute is a question of law, which we review de novo ." State Employees' Assoc. of N.H. v. State of N.H., 161 N.H. 730, 738, 20 A.3d 961 (2011). "In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Id. "We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Id. "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. "We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result." Id. "Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole." Id.

RSA 458–C:7, I(a) authorizes a parent to apply for modification of an existing support order:

The obligor or obligee may apply to the court ... for modification of such order 3 years after the entry of the last order for support, without the need to show a substantial change of circumstances. This section shall not prohibit the obligor or obligee from applying at any time for a modification based on substantial change of circumstances.

"To obtain a modification of support obligations within three years of the entry of the last order of support, the moving party must show a substantial change in circumstances that makes continuing the original order improper and unfair." In the Matter of Lynn & Lynn, 158 N.H. 615, 617, 972 A.2d 1046 (2009). "Although RSA 458–C:7 does not specify what constitutes a substantial change in circumstances, the trial court may consider a variety of factors in determining whether the financial situation of the parties has changed and whether modification is required." Id. "In determining whether a substantial change in circumstances exists, the trial court will look at the needs of the parties and their respective abilities to meet those needs." In the Matter of Adams & Houle, 156 N.H. 257, 259, 932 A.2d 21 (2007) (quotation omitted). "This is a fact-specific inquiry that requires the admission of evidence as to the parties' needs and abilities." Id.

Incarceration can have a direct effect on a parent's income by causing loss of employment, and the loss of employment-related income can substantially change an inmate's ability to pay child support. Furthermore, inmates lack the ability to obtain new employment while incarcerated. Because incarceration may cause a substantial change of circumstances sufficient to warrant modification, the trial court must consider incarceration when determining whether to modify a child support order. This does not, however, preclude a court from determining that a parent has remaining sources of income such that modification is unwarranted. See RSA 458–C:2, IV (2004 & Supp.2013).

In this case, the record shows that the respondent's incarceration caused a substantial change of circumstances because he lost his employment due to his incarceration, had no ability to obtain employment while incarcerated, and possessed no other source of income. As noted above, the trial court relied upon Noddin v. Noddin, 123 N.H. 73, 455 A.2d 1051 (1983), when it concluded that the respondent's incarceration did not cause a substantial change of circumstances. This reliance was misplaced. Prior to the enactment of RSA chapter 458–C, we had held that a parent who was terminated from employment because of his own wrongdoing was not eligible for a reduction in support payments due to his reduced ability to pay. Noddin, 123 N.H. at 76, 455 A.2d 1051. After the enactment of RSA chapter 458–C, however, we have repeatedly held that RSA 458–C:2, IV(a) supersedes our decision in Noddin. See In the Matter of Sarvela & Sarvela, 154 N.H. 426, 436, 910 A.2d 1214 (2006) ; In the Matter of Rossino & Rossino, 153 N.H. 367, 370, 899 A.2d 233 (2006)....

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    • United States
    • New Hampshire Supreme Court
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  • In re White
    • United States
    • New Hampshire Supreme Court
    • February 9, 2018
    ... ... We are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole. Id. "We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." In the Matter of State of N.H. & Lounder, 166 N.H. 353, 355, 96 A.3d 970 (2014) (quotation omitted). We interpret legislative intent from the statute as written, and we will not consider what the legislature might have said or add words that the legislature did not include. In the Matter of Doherty & Doherty, 168 N.H. at ... ...
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    • New Hampshire Supreme Court
    • January 28, 2022
    ...the trial court's finding that the father was voluntarily unemployed or underemployed. See In the Matter of State of N.H. & Lounder, 166 N.H. 353, 357 (2014) (parent involuntarily terminated from employment is not voluntarily unemployed). Moreover, the trial court's finding that the father ......

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