Wheaton-Dunberger v. Dunberger

• Decision Date: 05 August 1993
• Docket Number: No. 92-200,WHEATON-DUNBERGER,92-200
• Citation: 629 A.2d 812,137 N.H. 504
• Parties: Christine G., v. Ulf B. DUNBERGER.
• Court: New Hampshire Supreme Court

Page 812

629 A.2d 812

137 N.H. 504

Christine G. WHEATON-DUNBERGER, v. Ulf B. DUNBERGER.

No. 92-200.

Supreme Court of New Hampshire.

Aug. 5, 1993.

Christine G. Wheaton, by brief and orally, pro se.

Patricia McKee, Exeter, on the brief and Elizabeth Cazden, on the brief and orally, Manchester, for defendant.

THAYER, Justice.

The defendant, Ulf Dunberger, appeals the Master's (Stephanie T. Nute, Esq.) child support order that was approved by the Superior Court (Barry, J.). The plaintiff, Christine Wheaton-Dunberger, argues that the marital master acted within her discretion. We agree and therefore affirm.

Prior to their marriage in 1983, the parties executed an antenuptial agreement providing that "neither shall be entitled to any alimony, or support money" derived from certain assets. Pursuant to this agreement, the plaintiff renounced any claim to the defendant's Swedish assets. The plaintiff obtained her master's degree in physical therapy during the course of the marriage and worked part-time. The defendant holds a master's degree in electrical engineering and was employed full-time during the marriage but was laid off while the parties were separated.

The plaintiff lived in the marital home during the separation, and the parties entered into a permanent partial stipulation that a property inspection would be done before the plaintiff vacated the marital home. Under the stipulation,

"[a]ny damages which the Defendant believes are beyond reasonable wear and tear, shall, if not able to be resolved by the parties, be brought to the attention of the Court and the Court shall make a determination as to the Plaintiff's liability for the repair and the costs thereof."

At the beginning of the divorce proceedings, each party was ordered to pay one-half of the guardian ad litem fees under a temporary decree. The permanent partial stipulation also included the following clause:

"The Defendant shall not be responsible for the Plaintiff's portion of the Guardian's bill as per Court orders to date. The Plaintiff will not seek a modification of the existing order relative to the Defendant's responsibility for payment of the Guardian's fees, but is free to challenge the overall Guardian's bill."

The parties were divorced in December 1991, effective May 13, 1991, based on irreconcilable differences. They agreed to joint physical and legal custody of their children but could not agree on a physical placement schedule, the amount of child support, or responsibility for medical insurance. Both parties waived their rights to alimony.

The plaintiff is establishing her own physical therapy practice and submitted a support affidavit showing a monthly gross income of $746. The defendant is working as a consultant, earning $3,776 per month, and receives dividends from his Swedish assets. In 1991, these dividends amounted to approximately $29,000. The plaintiff rents a house in the same neighborhood as the marital home, where the defendant now lives, and the master ordered that the parties would have physical custody of the children from Friday to Friday, on alternating weeks. The defendant was ordered to pay the plaintiff $950 per month in child support, and to provide medical insurance for the children. In addition, he was ordered to pay the entire balance owed to the guardian ad litem, and he was awarded $1,251.95 for damages to the marital home alleged to have been caused by the plaintiff.

Both parties moved for reconsideration. On March 3, 1992, the master vacated the paragraphs of the divorce decree regarding guardian ad litem fees and property damage to the marital home. The master ordered the defendant to pay all of the guardian ad litem expenses accruing after May 7 1991, and the defendant's award of $1,251.95 for property damage was simply vacated. The master rejected the defendant's arguments to reduce child support, share the children's medical insurance costs, impute an annual income of $40,000 to the plaintiff, order the plaintiff to file a joint tax return, and disregard his Swedish assets in awarding child support. The defendant raises these issues on appeal, as well as his claim that the marital master violated both the State and Federal Constitutions by imposing a support obligation "based solely or primarily on the gender of the parent."

The master's determination of an appropriate award of child support will not be set aside absent an abuse of discretion. Russman v. Russman, 124 N.H. 593, 596, 474 A.2d 1017, 1019 (1984). With the adoption of the child support guidelines in 1988, the master's discretion to award support differing from the prescribed formulas is limited to situations in which the master finds special circumstances. RSA 458-C:4-5 (1992); see also Morrill v. Millard (Morrill), 132 N.H. 685, 687, 570 A.2d 387, 388 (1990).

The defendant's main arguments are premised on two grounds: (1) the master erred in not finding that the plaintiff's current earning capacity is $40,000; and (2) because the parties have equal physical custody of the children, instead of what the defendant contends is the more common situation where one party has primary physical custody of the children, the master should have made some adjustment to the amount of child support determined by the guidelines.

We conclude that the master's refusal to find the plaintiff had an earning capacity of at least $40,000 was supported by the evidence. The plaintiff's support affidavit reported a gross monthly income of $746, or approximately $9,000 per year. The defendant's insistence that the plaintiff is voluntarily underemployed, see RSA 458-C:2, IV(a) (1992), is based on the fact that a friend of the plaintiff offered her a job working in the Boston area for $40,000. The plaintiff, however, could not remove the children from the Portsmouth area without permission from the defendant or the court, and the parties had stipulated that the children would remain in the same school for at least one year. The prospective employer apparently thought such a long commute would have a negative impact on the plaintiff's work performance, and revoked the offer.

The defendant also contends that the plaintiff chooses to work only part-time, but he fails to recognize a physical injury that prevented the plaintiff from working during the summer of 1991, or her extensive testimony regarding her job search and willingness to accept a full-time position if a prospective employer asked her to close her own practice. Before her marriage, the plaintiff operated a successful physical therapy practice, and she certainly has the skill to do so again. As the financial situation of the plaintiff improves, the defendant may seek modification of the court order.

The defendant next argues that the child support order is "unjust, confiscatory and unduly burdensome" because the master strictly applied the child support guidelines. The issue, as stated by the defendant, is "whether, once a party has unquestionably demonstrated that a 'special circumstance' applies, the court may nevertheless refuse to depart from the numerical guidelines in RSA chapter 458-C." Just as RSA 458-C:5 authorizes the master to exercise her discretion to adjust the support award under the formula, it also authorizes the master's exercise of discretion in not adjusting the support award.

The child support guidelines were adopted to promote uniformity in child support awards. RSA 458-C:1 (1992). Accordingly, there is a rebuttable presumption that the amount of the award resulting from the application of the guidelines is the correct amount of child support. RSA 458-C:4, II. A master, however, does not have to follow the guidelines strictly if such an application would be unjust or inappropriate in a given situation. Id. Under RSA 458-C:4-5, the master can adjust the support award, either upward or downward, when the master makes a specific finding that the guidelines should not be followed.

The defendant argues that this case presents a special circumstance in that there is a split or shared custody arrangement. See RSA 458-C:5, I(h). As such, he argues that he should not be required to pay the full amount of monthly child support computed under the guidelines because he has custody of the children for one-half of the month. The defendant, however, is interpreting the statute to require an adjustment to a child support award upon a showing of special circumstances. The plain meaning of the statute evidences no such intent: "Special circumstances, including, but not limited to, the following, may result in adjustments in the application of support guidelines provided under this chapter." RSA 458-C:5, I (emphasis added).

The master fully addressed this argument in her...