In re Todisco

• Decision Date: 28 January 2022
• Docket Number: 2021-0144
• Court: New Hampshire Supreme Court
• Parties: In the Matter of Genisa Todisco and Joe Clancey,

In the Matter of Genisa Todisco and Joe Clancey,

No. 2021-0144

Supreme Court of New Hampshire

January 28, 2022

Having considered the briefs and record submitted on appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). The respondent, Joe Clancey (father), appeals an order of the Circuit Court (Alfano, J.) denying his motion to modify child support. He argues that the court erred in: (1) denying his motion and finding him in contempt of the child support order; (2) ordering that the petitioner, Genisa Todisco (mother), may claim the parties' child as a dependent on her 2020 taxes; and (3) not finding that he paid twice for child support in January 2020. We reverse and remand.

A party may apply for modification of a child support order based upon 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 (2009); RSA 458-C:7, I(a) (2018). Child support should be determined based upon present income. In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 140 (2020). We will not disturb the trial court's child support rulings absent an unsustainable exercise of discretion or an error of law. In the Matter of Laura & Scott, 161 N.H. 333, 335 (2010).

In the parties' 2019 divorce decree, the court ordered the father to pay $1, 150 per month in child support, based upon a monthly income of $10, 950 as a sales executive and special circumstances warranting an adjustment from the child support guidelines. On August 20, 2020, the father moved to modify child support after being involuntarily terminated from his employment on July 31, 2020, through no fault of his own. The father's income was reduced to approximately $1, 850 per month in unemployment benefits. The father asked the court to suspend his child support obligation until he found new employment. The court scheduled a 30-minute telephonic hearing on this motion and other pending motions for October 1, 2020.

At the hearing, the court concluded that 30 minutes was insufficient to address the pending motions and scheduled a further hearing for January 29, 2021. In the meantime, the court ordered that the "[f]ather is expected to comply with the court's support orders as ordered, or at least as he is able, and to provide proof of same."

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After the January 29, 2021 telephonic hearing and "a review of the exhibits," the court denied the father's motion to modify child support. The court noted that the father "claims that he lost his job on...