2004-288, IN THE MATTER OF TATJANA A. DONOVAN and ROBERT F. DONOVAN, JR.

adjustment for inflation using the Consumer Price Index (CPI). The father was pay $1,599 per month in child support to the mother, subject to annual stipulation incorporated a uniform support order that required the father to the father obtained residual custodial rights. The parties’ p ermanent two minor children. The mother was awarded primary physical custody, while The parties divorced in May 2000 and received joint legal custody of their

remand. their divorce decree. We affirm in part, rev erse in part, vacate in part and trial court erred in refusing to modify the parties’ permanent stipulation in respondent, Robert F. Donovan (the father), cross - appeals, arguing that the spouse’s child s upport obligation based upon income imputed to her. The an order of the Superior Court (Barry, J.) reducing the amount of her former DUGGAN, J. The petitioner, Tatjana A. Donovan (the mother), appeals

brief and orally), for the respondent. Law Office of J oshua L. Gordon, of Concord (Joshua L. Gordon on the

petitioner. Bronwyn Asplund - Walsh, of Franklin, by brief and orally, for the

No. 2004 - 288 Hillsborough - nor thern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

support. See RSA 458 - C: 3, II(a) ( p. 2 2004). We address each issue in turn. because that provision is contrary to the statutory formula for computing child Finally, he argues that the court erred in refusing to strike the CPI provision stipul ation that they would contribute to their children’s college expenses. RSA 458:17, XI - a (2004), the trial court erred in upholding the parties’ of Coderre & Coderre, 148 N.H. 401, 406 (2002). He also argues that under total support obligation under the child support guidelines. See In the Matter children’s extracurricular activities because these expense s are included in his argues that the trial court erred by ordering him to continue to pay for his underemployed. See RSA 458 - C:2, IV(a) (2004). In his cross - appeal, the father making a specific finding that she was voluntarily unemployed or father’s child support obligation based upon income imputed to her without On appeal, the mother argues that the trial court erred by modifying the

CPI. adjust s the father’s child support obligation for inflation as reflected by the court also upheld the provision of the uniform support order that annually make proportionate contributions to their children’s college expenses. The children’s extracurricular activities and to eliminate the parties’ obligation to denied his requests to terminate his monthly payment of $150 for the obligation, thereby reducing his monthly payment to $1,590. The trial court The trial court granted the father’s request to modify his child support

mother has not engaged in full - time employment. to the parties’ agreement. Because of her home - schooling responsibilities, th e years prior to the parties’ divorce and has continued to do so since, pursuant between p. 2 2000 and 2003. The mother home - schooled their children for four Networks in Merrimack. His monthly pay decre ased by approximately $62 The father is employed as a certified public accountant (CPA) at Ellacoya

stipulation relating to child support. also asked the trial court to strike portions of the parties’ permanent diminished earnings and his former spouse’s ability t o earn an income. He ( p. 2 2004). He sought to reduce his child support obligation based upon his modify the divorce decree under the three - year review provision of RSA 458 - C:7 On October 23, 2003, the father filed a petition to bring forward and

incomes at such time. expenses through college in an amount proportionate to their respective expenses. The parties also agreed to contribute to the children’s educational required to pay an additional $150 per month for the children’s extracurricular p. 3 3

Nicolazzi v. Nicolazzi, 1 p. 3 31 N.H. 694, 696 (1989). They are in the best position courts have broad discretion to review and m odify child support awards. by evidence in the record. West v. Turchioe, 144 N.H. 509, 513 (1999). Trial for the fact finder, whose decision will not be disturbed on appeal if supported underemployed in this ca se. Whether a party is underemployed is a question the evidence supports the trial court’s implied finding that the mother is Although an express finding is not required, we must determine whether

or underemployment. 458 - C:2, IV(a) does not require an express finding of voluntary unemployment also State v. Rothe, 142 N.H. 48 p. 3 3, 485 (1997). Therefore, we hold that RSA terms. Appeal of Concord Natural Gas Corp., 121 N.H. 685, 691 (1981); see it did not intend the law to have that effect and will not judicially engraft those legislature has failed to include such provisions in a statute, we presu me that e.g., In the Matter of Barrett & Coyne, 150 N.H. 520, 524 - 25 (2004). When the circumstances that warrant a deviation from the child support guidelines. See, trial court “shall make written findings” relative to the applicability of special an express written finding. For example, RSA 458 - C:5 (2004) provides that the other sections of RSA chapter 458 - C explicitly require the trial court to make that the parent is voluntarily une mployed or underemployed. In contrast, The plain language of the statute does not mandate an express finding

physically or mentally incapacitated.” voluntarily becomes unemployed or underemployed, unless the parent is earning and the amount a paren t has earned in cases where the parent consider as gross income the difference between the amount a parent is RSA 458 - C:2, IV(a) provides that “[t]he court, in its discretion, may

overall statutory scheme and not in isolation. Watterworth, 149 N.H. at 445. 148 N.H. at 40 p. 3 3. Furthermore, we interpret statutes in the context of the might have said or add words that the legislature did not include. Coderre, statute as written, and, therefore, we will not consider what the legislature meanings to the words used. Id. We interpr et legislative intent from the We first examine the language of the statute and ascribe the plain and ordinary whole. In the Matter of Watterworth & Watterworth, 149 N.H. 442, 445 (2003). legislature’s intent as e xpressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of the

finding of voluntary underemployment. if an express finding is not required, the evidence does not support an implied underemployed under RSA 458 - C:2, IV(a). Furthermore, she argues that even without making an express finding that she was voluntarily unemployed or The mother argues that the trial court erred by imputing income to her

I. Underemployment p. 4 4

guidelines. See RSA p. 4 458 - C:5. We agree with the father. children constitute special circumstances that warrant deviation from the her significantly low income and ongoing educational exp enses on behalf of the the cost of all of their extracurricular activities. Alternatively, she argues that should not apply because she is home - schooling the children and must incur Matter of Coderre & Coderre, 148 N.H. at 406. The mother argues that Coderre because such expenses are included in his child support obligation. See In the continue paying $150 per month for the children’s extracurricular activities Next, the father argues that the trial court erred by requiring him to

II. Extracurricular activities

imputed to the mother. modifying the father’s monthly child support obligation based on income imputed to her. We therefore vacate that part of the trial court’s order home - school the children and earn t he amount of income that the trial court no evidence in the record concerning whether the mother could continue to the extent of her ability around the home schooling [of] her children.” There is part - time employment, simply to make ends meet,” and “has been working to pursuing full - time employment. Furthermore, she “has been required to seek schooling their children for at least eight years, which prevents her from Moreover, pursuant to the parties’ agreement, the mother has been home allegations that the mother is currently qualifi ed for such employment. unsupported by any concrete evidence. Indeed, it is not clear from the father’s claim that the mother could obtain employment as a bookkeeper is speculation This finding is not suppo rted by the evidence in the record. The father’s

implies a finding that the mother is voluntarily underemployed. adoption of this figure in computing the father’s child support obligation job as a bookkeeper and earn at least $952 a month.” The trial court’s that, “as a CPA himself[,] [he] believes his former wife could at least obtain a currently the mother is not certified to work as a CPA, but his attorney stated take the required courses to get up to speed.” The father acknowledged that is not currently working as a CPA, she has the ability to do so if she were to income. The father based this figure on his belief that “although [the mother] worksheet, the father attributed $952.60 to the mother as monthly gross upon his cal culations on the child support guidelines worksheet. On the In computing the father’s child support obligation, the trial court relied

unsustainable. In the Matter of Jerome & Jerome, 1 p. 5 50 N.H. 626, 628 (200 p. 4 4). clearly appears on the evidence that the court’s exercise of discretion was them. See id. Accordingly, we will set aside a modification or der only if it to determine the parties’ respective needs and their respective abilities to meet 5

requires them to contribute to their children’s college educations. As part of refusing to strike the provision of the parties’ permanent stipulation that Next, we address the f ather’s argument that the trial court erred in

III. College expenses

child support obligation under the guidelines. See Coderre, 148 N.H. at 406. paying $1 p. 5 50 per month for extracurricular activity expenses in addition to his Thus, we vacate the trial co urt’s decision requiring the father to continue

C: p. 5 5. this case in making adjustments to application of the guidelines. See RSA 458 on remand, t he trial court may consider whether special circumstances exist in from the guidelines. Arabian, 151 N.H. at 112. We agree with the mother that, education expenses may constitute special circumstances that justify deviation activities are included in basic guidelines support, ongoing extraordinary support under the guidelines. See id. at 403 - 06. Although e xtracurricular purpose of RSA chapter 458 - C to determine what expenses are part of g eneral for extracurricular expenses. See id. Rather, we examined the structure and Coderre, however, was not based upon the facts underlying the party’s request not subsidize the cost of their extracurricul ar activities. Our holding in because she is home - schooling the children and the public school system does The mother argues that this case should be distinguished from Coderre

Coderre, 148 N.H. at 406. paying an additional $1 p. 5 50 per month for extracurricular activities. See father’s support obligation under the guidelines and required him to continue court erred in not applying our holding in Coderre when it recalculated the obligation at th e three - year review. See RSA 458 - C:3. Accordingly, the trial support, they are included in the trial court’s recalculation of the child support 111 (2004). Because extracurricular expenses are part of basic guidelines 148 N.H. at 406; see also In the Matter of Arabian & Squillante, 151 N.H. 109, included in the parties’ total support obligation under the guidelines. Coderr e, same category of basic support as food, shelter and recreation, and as such are In Coderre, we held that extracurricular activity expenses fall into the

incomes. recalculate the parents’ total support obligation based upon their c urrent that time, the trial court must use the formula provided under RSA 4 p. 5 58 - C:3 to modification of the child support order every three years. RSA 458 - C:7, I. At child support guidelines, either parent may apply to the trial court for and did not appeal this issue after the divorce decree was finalized. Under the the children’s extracurricular activities in the parties’ permanent stipulation Coderre, 148 N.H. at 4 0 p. 6 6, even though he agreed to pay $150 per month for The father argues that the trial court should have applied our holding in 6

education. Id. at 3 p. 6 63; see also LeClair, 137 N.H. at 220. This holding was court may order parents to contribute to their adult children’s post - secondary (superseded by statute). In Breault, we affirmed our prior holding that the trial from high school. In the Matter of Breault & Breault, 149 N.H. 359, 362 (2003) child support terminate when a child reaches the age of majority or graduates of Breault and B reault, which held that RSA 458:17, I, does not require that omitted). House Bill 299 was proposed following our decision in In the Matter analysis.” Appeal of Ann Miles Builder, 150 N.H. 315, 318 (2003) (quotation reasonable interpretation exists, we review legislative history to aid in our “Where the statutory language is ambiguous or where more tha n one

id. past child support orders that include college expenses must be vacated. See 458:17, XI - a. Alternatively, the phrase may be interpreted to mean that all order a parent to pay college expenses in future divorce decrees. See RSA interpreted to mean that as of the effective date of the statute, no court may to its enactment. The phrase “[n]o child support order shall require” may be legislature intended it to apply retroactively to orders already in existence prior 2, 2005). However, it is not clear on the face of the statute whether the expenses. In the Matter of Goldman & Elliott, 151 N.H. ___, ___ (decided March stat ute that would require a parent to contribute to an adult child’s college trial court from issuing a new court order on or after the effective date of the It is clear that, at a minimum, the legislature intended to preclude the

to contribute to their children’s college education. requires the trial court to vacate a pre - e xisting order that requires the parents prior court order. Thus, the issue before us is whether the new statute erred in denying his request to remove the college education provision from the On appeal, t he father argues that under the new statute, the trial court

petition. The trial court denied the father’s request. took effect on February 2, 2004, before the trial court’s hearing on the father’s beyond the completion of high school.” RSA 458:17, XI - a. The amendment contribute to an adult child’s college expenses o r other educational expenses RSA 458:17 to provide: “No child support order shall require a parent to to college expenses in light of the passage of House Bill 299, which amended asked the trial court to strike the portion of the permanent stipulation related At the hearing on his petition to modify the divorce decree, the father

LeClair v. LeClair, 13 p. 7 7 N.H. 213, 217 - 18 (1993) (superseded by statute). college expenses under RSA 458:17, I (Supp. 2003) and RSA 458:20 (1992). discretionary powers” to order divorced parents to contribute to their ch ildren’s to their respective income at that time.” At that time, the trial court had “broad “contribute to the cost of the children’s education through college in proportion the permanent stipulation, the parties agreed that ea ch of them would 7

Similarly, in Walker v. Walker, 116 N.H. p. 7 717, 718 (1976), we addressed the upon divorce decrees entered on or after the effective date of the amendments). (holding that amendments to alimony statute would apply only to orders based existing divorce decrees. See, e.g., Henry v. Henry, 129 N.H. 159, 161 (1987) to post - divorce financial support would not be applied retroactively to pre - We have held previously that statutory changes affecting parties’ rights

of Wal - Mart Stores, 145 N.H. at 638 (quotation and brackets omitted). because the underlying purpose of all legislation is to promote justice.” Appeal retrospective application rest[s] on a determination of fundamental fairness, Eldr idge, 136 N.H. at 613. “In the final analysis, however, the question of is a presumption of prospectivity when a statute affects substantive rights. procedural rights. Appeal of Wal - Mart Stores, 145 N.H. 635, 638 (2000). There interpretation turns on whether the statute affects the parties’ substantive or silent as to whether a statute should apply prospectively or retrosp ectively, our advance of such change.” Eldridge, 136 N.H. at 613. When the legislature is accordingly, notice or warning of a change in the law should be given in to know the law and, therefore, to org anize his or her conduct and affairs indicated that retroactivity is intended.”). “Because every person is presumed statutes are given prospective operation only, unless the legislature has clearly Statutory Constructi on § 69:9, at 418 - 19 (6th ed. 2003) (“[Child] [s]upport Eldridge, 136 N.H. 611, 613 (1993); accord 3A N. Singer, Statutes and As a general rule, statutes are applied prospectively. Eldridge v.

in legislation. post - enactment modifications to decrees that were issued prior to the change decrees, but does not make clear whether the statute was intended to apply t o suggests that the legislature intended the statute to apply to future divorce [sic] divorce.” N.H.H.R. Jour. 161 (2003) (emphasis added). This report regarding the children’s post - secondary education at the time of their parent’s Arnold, Jr. stated that the bill “removes the court’s discretion to make orders House Committee on Children and Family Law, Representative Thomas I. college expenses.” La ws 2004, ch. 1. In his report for the majority of the judicial discretion to order a divorced parent to contribute to an adult child’s The final version of House Bill 299 states that it is an act “removing

100 n.39 (2003). Obligations to Co ver Post - Secondary Educational Expenses, 56 Ark. L. Rev. 93, post - secondary educations. Goforth, The Case for Expanding Child Support opinion, the obligation of non - custodial parents to support their children’s N.H. at 225. Numerous States similarly have recognized, by statute or judicial otherwise would have received had their parents not divorced.” LeCla ir, 13 p. 7 7 children of divorce to ensure that they are not deprived of opportunities they of promoting higher education for its citizens, and of extending protections to consistent with our recognition that “the State has th e dual legitimate interests p. 8 8

published on an annual basis by the department of health and human as “the parents’ combined adjusted gross income less standard deductions to their respective inco mes. RSA 45 p. 8 8 - C:3, I, II(a), (b). “Net income” is defined resulting total support obligation is divided between the parents in proportion is multiplied by a percentage based upon the number of children, then the 5 13. Under the statutory child support formula, the parents’ total net income prospective support based upon current income figures. See West, 144 N.H. at The child support guidelines generally instruct the trial court to set

with the father and thus vacate this provision. time of the divorce an d this was a provision to which he agreed.” We agree the CPI provision because “[t]he defendant was represented by counsel at the the parties’ total net income. See RSA 45 p. 8 8 - C:3, II(a). The trial court upheld an nually based on inflation because the CPI does not reflect actual changes in formula, the CPI may not be used to adjust his child support obligation Finally, the father argues that under the guidelines’ child support

IV. Use of the Consumer Price Index

the children attend college. their children’s college education in propo rtion to their incomes at the time that the provision of the parties’ divorce decree that requires them to contribute to Thus, we hold that RSA 45 p. 8 8:17, XI - a does not mandate the trial court to vacate children’s college educati on predated the effective date of RSA 458:17, XI - a. In this case, the court order requiring the parents to contribute to their

Goldman, 151 N.H. at ___. Part I, Article 23 of the State Constitution against retrospective laws. Cf. amendment to vacate a pre - exist ing court order would violate the prohibition in issued after February 2, 2004, we need not consider whether application of the at 613. Because we find that the new law applies prospectively to court orders thus the pres umption of prospectivity must be applied. See Eldridge, 136 N.H. N.H. at 615. We conclude that RSA 45 p. 8 8:17, XI - a affects substantive rights and channel of inquiry into whether a modification is appropriate.” Eldridge, 136 does not mandate a change in child support but “simply opens up a new after the entry of the last order for support, is procedural in nat ure in that it RSA 458 - C:7, which permits modification of a child support order three years financial support is substantive in nature. See id. In contrast, we found that Id. Implicit in this holding was the recognition tha t the child’s right to receive continue until the child became emancipated or reached the age of twenty - one. preexisting divorce decrees under which a parent’s support obligation would effect, we held that the change in the age of majority would not affect clear showing of the legislature’s intent that the statute was to have retroactive eighteen years in determining the age of a child’s emancipation. Absent any ef fect of a statutory reduction in the age of majority from twenty - one to p. 9 9

based on the Consumer Price Index must be stricken. automatic escalation provision that adjusts the father’s support obligation agreement that th ey would pay for their children’s college expenses; and (4) the activities; (3) the trial court was not required to vacate the parties’ original ordering the father to continue to pay for his children’s extracurricular calculating the mother’s imputed monthly income; (2) the trial court erred in finding of voluntary underemployment is not required, the trial court err ed in In light of the foregoing, we conclude that: (1) although an express

the father’s request to strike the CPI provision. authorized under RSA chapter 458 - C, we reverse the trial court’s order denying escalation clause is not tied to changes in the parties’ incomes and thus is not the trial court’s original computation under the guidelines. Because this automatic escalator. Thus, the father’s support obligation no longer reflected increased from $15 p. 9 99 per month to $1828 per month by using the CPI as an reduction. Despite this decrease in net income, the father’s support obligation parties’ final divorce decree due to his employer’s company - wide salary In fact, the father’s income decreased during the four years following the

actual changes in the parties’ incomes. See RSA 458 - C:3, II. requires adjustments to the father’s support obligation that are independent of escalation cl ause is inconsistent with the child support guidelines because it for inflation in accordance with the Consumer Price Index.” The use of this the “[o]bligor’s child support obligation shall be reviewed annually and adjusted changes in the parties’ total net income. See id. The CPI provision states that Unlike the escalation clause in Heinze, the CPI provision is not tied t o

modifying support orders. Id. should consider increases in the custodial spouse’s income when drafting or suppo rt decrees.” Id. In addition, we reminded triers of fact that they also “reduce the need for parties to continually return to court to seek to modify supporting party to undertake the obligation increases” and that its use would “provides cost - of - living increases in support payments as the ability of the was then paying for child support. We noted that this e scalation clause of any wage increase based upon the percentage of his gross income that he clause that automatically increased the obligor’s support payment at the time In Heinze v. Heinze, 122 N.H. 358, 361 (1 p. 9 982), we upheld an escalation

Plaisted & Plaisted, 14 p. 9 9 N.H. 522, 524 (2003) (quotation omitted). deductions from the parents’ combined gross incomes.” In the Matter of model and is based on the number of supported children and standardized services.” RSA 458 - C:2, VI. “This formula is known as t he income - shares p. 10 10

and obtain such an order if the circumstances so warranted. order for contribution toward college expenses could file a motion to modify expenses, if the circumstances so warranted. Likewise an obligee who had no her obligation and be entitled to relief from the order to contribute to college becoming unemployed. The obligor could request the court to reconsider his or based upon a substanti al change in circumstances, such as, for example, previously been ordered to pay college expenses could file a motion to modify Prior to the enactment of RSA 458:17, XI - a, any obligor who had

including a change in the law. modifiable for a subst antial change of circumstances, LeClair, 137 N.H. at 221, Matter of Gilmore & Gilmore, 148 N.H. 111, 113 (2002), and, as such, is An order for contribution to college expenses is a support order, see In the or when there is a substantial change in circumstances. RSA 458 - C:7 (2004). Concerning child support, parties may move for modifications every three years LeClair, 137 N.H. 213, 217 (1993) (superseded by statute on other grounds). divorce and separation cases is conferred entirely by statute. LeClair v. A court’s power in custody, maintenanc e, and education of children in

assist his or her adult child with college expenses. parent, no matter how wealthy he or she might be, from any legal obligation to obligor. I believe the new statute leaves courts with no choice but to relieve a date of the statute either by a motion to modify or by nonpayment by t he regarding payment of college expenses that are challenged after the effective rather, the issue is whether the new statute requires courts to vacate orders requires courts to vacate all previous orders for payment of college expenses; I believe the issue before us, however, is not whether RSA 458:17, XI - a

enactment. statute applies only prospectively to orders entered after the date of its all prior orders regarding payment of college expenses to be vacated, the children’s college education. The majority concludes that, instead of requiring XI - a requires trial courts to vacate all prior orders that provide for payment of The majority frames this issue in terms of whether or not RSA 458:17,

that portion of the majority opinion. regarding payment of college expenses. Therefore, I respectfully dissent from application of RSA 458:17, XI - a (2004) to the existing order in this case with the ma jority on three of the issues on appeal, I disagree with its DALIANIS, J., concurring in part and dissenting in part. While I agree

DALIANIS, J.