2004-241, IN THE MATTER OF ROBERT L. GOLDMAN AND MARY E (GOLDMAN) ELLIOTT

We respond in the affirmative.

scheduled after the eff ective date of the Amendment? prior to the enactment of the Amendment but the hearing was adult child when the Motion [for college contributions] was filed considering contribution of college educational expenses for an Does the Amend ment of RSA 458:17 preclude the Court from

for our resolution the following question: transfer without ruling. Sup. Ct. R. 9. The Superior Court (Coffey, J.) submits BRODERICK, C.J. This case comes before us on an interlocutory

brief and orally), for the respond ent. Law Office of Patrick J. Devine, P.C., of Plaistow (Patrick J. Devine on the

Robert E. Ducharme, of Stratham, orally, for the petitioner. Marshall Law, of East Kingston (Keri J. Marshall on the brief), and

No. 2004 - 241 Rockingham

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.n h.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, Supreme Court Building, Conco rd, New Hampshire 03301, of any 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

prospective ly or retroactively. See Eldridge v. Eldridge, 136 N.H. 611, 613 first determine whether the legislature intended the new law to apply matter violates the constitutional proscription against retrospective laws, we Before considering whether application of new legislation to a particular

Constitution. contributions, and, thus, its application in this case would not offend the State new law affects only the remedy of seeking a discretionary award of college contribute to their children’s post secondary education. He contends that the court order or agreement between the parties had obl igated either of them to respondent’s pending motion would not impair any vested right because no petitioner contends, however, that applying the new legislation to the prospectively to causes of actions that arise after its enactment.” The According to the respondent, the new legislation “must only be applied seek contributions from the petitioner for their son’s college expenses. pending at the time the new legislation took effect, she had a vested right to See N.H. CONST. pt. I, art. p. 2 23. She contends that beca use her motion was violate the constitutional proscription against retrospective application of laws. trial court’s consideration of her motion seeking college contributions would The respondent argues that applying the amendment to preclude the

interlocutory transfer. RSA 458:17, XI - a ( p. 2 2004). Thereafter, the trial court submitted this

beyond the completion of high school. adult child’s college expenses or other educational expenses No child support order shall req uire a parent to contribute to an

the legislature amended RSA 458:17 by inserting the following language: and a hearing was scheduled for March 11, p. 2 2004. Effective February 2, 2004, full - time student at the University of New Hampshire. The petitioner objected expenses for Elliot, who was twenty - two years old at the time and enrolled as a modify existing child support, in which she also sought contribution for college In August 2003, the respondent filed a motion to bring forward and

further order on the matter. Matter of Breault & Breault, 149 N.H. p. 3 359, 36 p. 2 2 (2003). The record contains no college expenses. See LeClair v. LeClair, 137 N.H. 213, 218 - 20 (1993); In the RSA 458:20 to order divorced parents to contribute toward their children’s those issues. At the time, the trial court had authority under RSA 458:17 and order regarding college, trusting that the parents could discuss and agree upon issued while the children were still minors, the court indicated that it made no on August 16, 1982, and Gillian, born on Februa ry 11, 1986. In a court order (Goldman) Elliott, were divorced in 1991. They have two children, Elliott, born The petitioner, Robert L. Goldman, and the respondent, Mary E. 3

is unjust on general principles. If a certain change can be made in progress in the inquiry whether it affects a right, that is, whether it the remedy in some sense or other, we have made very little . . . [W]hen we have merely ascertained that a statute affects

prohibition. so accurately as not to impair the force of the constitutional s ome danger, because of the difficulty of drawing that distinction on the distinction between right and remedy, is attended with rule laid down in the bill of rights. And any generalization founded injurious, oppressive, and unjust. That is the plain and simple Retrospec tive laws are unconstitutional and void, because they are

long ago warned against using a formulaic approach to Article 2 p. 3 3 analysis: versus procedures and remedies is not, however, a simple matter. Indeed, we Application of this dichotomy between substantive rights and liabilities

of enactment. Gelinas v. Mackey, 12 p. 3 3 N.H. 690, 695 (1983). procedural in nature, however, it may be applied to cases pending at the time Brown Company, 121 N.H. 67, 70 - 71 (1981). When a statute is remedial or retroactively. See LaBarre v. Daneault, 123 N.H. 267, 272 (1983); Lozier v. adversely affect an individual’s substantive rights, it may not be applied Norton v. Patten, 125 N.H. 413, 417 (1984). If application of a new law would from those that solely affect procedures or remedies enforcing those rights. See analysis, we distinguish new laws that affect substantive rights and liabili ties Woart v. Winnick, 3 N.H. 473, 479 (1826)). When engaging in an Article 23 Burrage v. N.H. Police Standards Council, 127 N.H. 742, 746 (1986) (citing transactions or considerations already past, mu st be deemed retrospective.” new obligation, imposes a new duty, or attaches a new disability, in respect to takes away or impairs vested rights, acquired under existing laws, or creates a offenses.” In 1826, we interpre ted Article 23 to mean that “every statute which should be made, either for the decision of civil causes, or the punishment of laws are highly injurious, oppressive, and unjust. No such laws, therefore, Part I, Article 23 of our State Constitution provides that “[r]etrospective

considering the respondent’s motion for college contributions. proscription against retrospective laws, it would bar the trial court from RSA p. 4 458:17, XI - a to the case before us violates our State’s constitutional State v. Comeau, 142 N.H. 84, 86 - 87 (1997). A ccordingly, unless application of child’s college or other educational expenses on or after February 2, 2004. See from issuing new court orders requiring a parent to contribute to an adult is clear that, at a minimum, the legislature intended to preclude the trial court take effect upon its passage, i.e., February 2, 2004. Laws 2004, 1:4. Thus, it (199 p. 3 3). In this case, the legislature expressly stated that the amendment shall 4

of the repeal. then no relief can be granted on his demand after the effective date granted to hi m on the enforcement of a demand before such repeal, has a remedy to enforce his claim, and if final relief has not been upon which it is based is repealed, that particular person no longer another. If, before a right becomes vested in a person, the law enforcement of a demand, or a legal exemption from the demand of become a title, legal or equitable, to the present or future an anticipation of the continuance of existing law; it must have be vested, a right must be more than a mere expectation based on existing law. Those rights are designated as vested rights, and to deprive a person of a property right theretofore acquired under statutory or common, at its pleasure, but in so doing, it may not Constitutions, the Legislature may change existing laws, both Unless otherwise inhi bited by either the State or Federal

retrospective legislation can be best summed up as follows: legislature’s authority to change existing laws and the prohibition against Nottingham v. Bonser, 131 N.H. 120, 13 p. 4 4 - 35 (1988). The interplay between the general right to the continuance even of prior substant ive law.” Town of State v. Burr, 142 N.H. 89, 93 - 94 (1997) (quotation omitted). “Citizens have no

incidental injury occasioned by change in the law. obligation on the part of the State to protect its citizens against amendment or repeal by the legislature; nor is there any implied vested interest in the existing laws of the State as precludes their the individual citizen, with all his rights to protection, has no

modify and repeal existing law, and to enact new laws, and that Further, we are mindful that the legislature has the power to change,

to a particular matter offends the constitution. Farnum’s Petition, 51 N.H. 376, 380 (1871), to assess whether its application ultimately, we must discern “the na ture of the rights affected by the [new] act,” rights and liabilities and procedures and remedies provides a helpful guidepost, fundamental fairness”). Thus, while the demarcation between substantive (“the question of retrospective application rests on a determination of Kent v. Gray, 53 N.H. 576, 579 - 80 (1873); see also Eldridge, 136 N.H. at 613

wrong. between right and remedy, but the distinction between right and . . . [T]he test given by the bill of rights is, not the distinction

be made in the right, it is bec ause it cannot be justly made. the remedy, it is because it can be justly made: if a change cannot p. 5 5

NADEAU, DALIANIS and DUGGAN, JJ., concurred.

answer the question transferred in the affirmative. constitutional proscription under Article 23 against retrospective laws, we we conclude that application of the amendment does not offend the at 383. The respondent’s motion was not of that nature. Accordingly, because or civil rights, or compensation for their infraction.” Farnum’s Petition, p. 5 51 N.H. action contested before a court “w hich has for its object the recovery of private However, a cause of action, in the context of Article 23 analysis, is a suit or whether suit upon that action has not been filed.” Lozier, 121 N.H. at 70. constitutionally enact laws that affect existing causes of action, regardless of We acknowledge that we have previously held that the legislature “cannot

matter.” Id. the statutory amendment “deprive[d] the court of jurisdiction over the subject expense s derived solely from statute and no final judgment had been rendered, consider ordering the petitioner to contribute to their adult son’s college S.W.2d at 284. Because the respondent’s opportunity to have the trial court repeal goes into effect, it cannot be granted thereafter.” Aetna Ins. Co., p. 5 528 where the repeal finds them; and, if final relief has not been gra nted before the repealed, without a saving clause in favor of pending suits, all suits must stop almost universally recognized that if a statute giving a special remedy is right that the court consider her request and issue an award. Indeed, “[i]t is a discretionary college contribution award into a fixed, certain and absolute N.H. 410, 413 (1855). The respondent’s motion did not transform her hope for on any contingency, bu t absolute, fixed and certain.” Lakeman v. Moore, 32 perfect vested right can be no other than such as is not doubtful, or depending Bell v. Kansas Corp. Comm’n, 29 P.3d 424, 430 (Kan. Ct. App. 2001). “A continuance of existing laws, does not constitute a vested right,” Southwestern future benefit, or a contingent interest in property founded on anticipate d seek a discretionary award for college contributions, and “a mere expectancy of right under the prior law. The respondent merely pursued an opportunity to We conclude that the respondent’s motion di d not secure her a vested

Aetna Ins. Co. v. Richardelle, p. 5 528 S.W.2d 280, 284 (Tx. Civ. App. 1975).