2005-110, IN THE MATTER OF BRIAN STALL AND LYNNE STALL

(Supp. 2005); see also RSA 458 - A:3, :14 (2004). On April 2, 2004, the parties to award him primary physical custody of the children. See RSA 546 - B:39 the Florida decree in New Hampshire and to modify the Florida custody order In December 2003, the petitioner petitioned the superior court to register

rights. After the divorce, the petitioner relocated to New Hampshire. physical custody of the parties’ three children and gave the petitioner visitation Florida in 1999. The Florida divorce decree gave the respondent prim ary The record supports the following facts. The parties were divorced in

part, vacate in part and remand. requiring her to reimburse the petitioner for certain expenses. We affirm in May 1, 2004, to the petitioner, Brian Stall; finding her in contempt; and Superior Court (Conboy, J.) requiring her to pay child support, retroactive to BRODERICK, C.J. The respondent, Lynne Stall, appeals the order of the

the respondent. Gage & Woods, P.L.L.C., of Exeter (Stephen J.C. Woods on th e brief), for

Brian Stall, by memorandum of law, pro se.

No. 2005 - 110 Hillsborough - no rthern 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. Opinions 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, Ne w 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

date upon which she arguably received notice of the Florida petition to modify. should have used the date of service of the New Hampshire petition and not the RSA 546 - B:48. She asserts that pursuant to RSA 458 - C:7, II, the trial court Hampshire petition to modify was served. See RSA 458 - C:7, II ( p. 2 2004); see also retroactive to Nov ember 1, 2004, the date on which she alleges the New petition to modify was filed, instead of requiring her to pay child support pay child support retroactive to May 1, 2004, a few days after the Florida The respondent first argues that the trial court erred by requiring her to

children caused by the transport delay. This appeal foll owed. respondent to pay the petitioner $1,300 for purchases he made on behalf of the transport the children’s belongings as previously ordered and directed the partner. Additionally, the court fou nd the respondent in contempt for failing to unemployed as a result of moving to Maine in May p. 2 2004 to live with her prior earnings of $30,000 per year, finding that she was voluntarily p roceeding.” To calculate child support, the trial court used the respondent’s that [the petitioner] first sought child support in late April[ ] 2004 in the Florida support to the petitioner retroactive to May 1, 2004, “because the file indicates Following a hearing, the court ordered the respondent to pay child

respondent alleges that she was served with the petition on No vember 1, p. 2 2004. to pay child support. See RSA 546 - B:41, :47 -:49, :51 (Supp. 2005). The parties’ child support obligations, requesting that the respondent be required as agreed. On October 19, 2004, he pe titioned the superior court to modify the respondent in contempt for failing to transport the children’s personal effects, On October 1, 2004, the petitioner asked the superior court to find the

support. jurisdiction and that New Hampshire now had jurisdiction with respect to child decree in New Hampshire. The court determined that it no longer had further orders on child support because the parties had registered the divorce that required the petitioner to pay child support, but declined to enter any p. 2 21, 2004, the Florida court vacated the provisions in the original divorce d ecree obligations and require the respondent to pay child support. On September Florida, requesting that the Florida court eliminate his child support A few weeks later, on April 26, 2004, t he petitioner filed a petition in

superior court approved this stipulation. transport of the children’s personal effects for an agreed - upon price. The carrier within ten days of the order; and (5) the petitioner would pay for the (4) the respondent would forward the children’s personal ef fects by common the petitioner’s child support obligation would terminate as of January 8, p. 2 2004; (2) the petitioner would be granted physical custody of the parties’ children; ( p. 3 3) stipulated that: (1) the Florida decree would be registered in New Hampshire; 3

make its modification order retroactive to the date upon which the respondent proceedings consistent with this opinion. On remand, the trial court shall child support obligations retroactive to May 1, 2004, and remand for further We therefore vacate the trial court’s order modifying the respondent’s

770 (200 p. 3 3). legislature did not include. JTR Colebrook v. Town of Colebrook, 149 N.H. 767, will not consider what the legislature might have said or add words that the We interpret legislative intent from the statute as written, and, therefore, we intended the word notice to have a broader meaning, it could have so stated. petition upon which the New Ham pshire court ruled. Had the legislature responding party received service or accepted, by certified mail, a copy of the the word “notice” specifically to mean either the date upon which the o r reasonably should have known.” This was error. RSA 458 - C:7, II defines support, the trial court, in effect, interpreted the word “notice” to mean “knew that the respondent “was put on formal notice” that the petitioner sought child By making its order retroactive to the date upon which the court found

copy of the petition upon which the New Hampshir e court has ruled. responding party has either been served with or accepted, by certified mail, a modify a child support order retroactive only to the date upon which the The plain meaning of this provision is that a New Hampshire trial court may

construed to affect service as required by law. certified mail receipt. Nothing in this subparagraph shall be and as long as the petitioner provides proof of acceptance by a petitio n is filed no later than p. 3 30 days following said acceptance, (b) Acceptance of a copy of the petition, as long as the

(a) Service as specified in civil actions; or

to the respondent. “Notice” means: the date that notice of the petition for modification has been given Any child support modificatio n shall not be effective prior to

support order becomes effective. This statute provides: RSA 458 - C:7, II governs the date upon which the modification of a child

legislative scheme and not in isolation. Id. ordinary meanings. Id. We interpre t statutes in the context of the overall We examine the language of the statute, ascribing to its words their plain and legislative intent. In the Matter of Jerome & Jerome, 150 N.H. 626, 628 (2004). When constru ing the meaning of a statute, we are the final arbiters of

modification order retroactive to May 1, 200 p. 4 4. Thus, the issue for our review is whether the trial court erred by making its 4

court’s finding that the respondent was voluntarily unemployed was an (quotation omitted). Given the record before us, we cannot say that the trial trial judge.” Smith v. N.H. Dep’t of Revenue Admin., 1 p. 4 48 N.H. 536, 539 (2002) differently but to determine whether a reasonable person could find as did the obligation, “[o]ur task on appeal is not to decide whether we would have found the fact that when she became unemployed, she had no child support consideration to her motive for moving (in part, to be cl oser to her children), or Although the respondent argues that the trial court failed to give proper

trial court reasonably found that the respondent was voluntarily unemployed. but had not yet been offered a positi on. Given this testimony, we hold that the to work. The respondent further testified that she was looking for employment, received a diagnosis from any doctor that her depression rendered her unable approximately f ive months in 200 p. 4 4, she did not have a disability and has not testified that, although she experienced “a bout of depression” for per year, just before moving to Maine to live with her partner. She also worked in May 2004, as an assistant to a real estate broker earning $30,000 voluntarily unemployed. At the hearing, the respondent t estified that she last The record supports the trial court’s finding that the respondent was

that the court’s exercise of discretion was unsustainable. Id. we will set aside a m odification order only if it clearly appears on the evidence respective needs and their respective abilities to meet them. Id. Accordingly, awards. Id. at 59. They are in the best position to determine the parties’ (2 005). Trial courts have broad discretion to review and modify child support in the record. See In the Matter of Donovan & Donovan, 152 N.H. 55, 58 - 59 finder, whose decision will not be disturbed on appeal if supported by evidence Whether a party is voluntarily unemployed is a question for the fact

physically or mentally incapacitated.” voluntarily becomes unemployed or underemployed, unless the parent is earning and the amount a parent has earned in cases where the parent may consider as gross income the difference between the amount a parent is RSA p. 4 458 - C:2, IV(a) (2004) provides that “[t] he court, in its discretion,

unemployed, she had no child support obligation. moved to Maine to be closer to her children and because, when she became have imputed income to her because the reason she is unemployed is that she that she is voluntarily unemployed, but asserts that the trial court s hould not income to her after finding that she was voluntarily unemployed. She concedes The respondent next contends that the trial court impermissibly imputed

petition, as set f orth in RSA p. 4 4 p. 5 58 - C:7, II. was served with or accepted, by certified mail, a copy of the New Hampshire 5

the children’s effects by common carrier at an agreed price within ten days of determined that the respon dent violated the April 2004 order by failing to ship Based upon this evidence, the trial court reasonably could have

belongings to New Hampshire for $300. of what the respondent had packed, and then shipped the remaining eventually picked u p the boxes, determined that the children did not need most arrange to have the children’s belongings picked up. The respondent’s parents “decided to move to Maine” and told the petitioner that she needed him to having informed the petitioner of this on “several occasions,” the respondent respondent had boxed were clothes, computers, stereos, and televisions. After moving the belongings was approximately $1,300. Among the belongings the children’s belongings and informed the petitioner that the cost of boxing and For her part, the respondent testified that she had movers box all of the

were waiting for the petitioner to send their belongings. approximately $1,300 to clothe the children during the summer, while they several weeks after the trial court’s order. He estimated that he paid carrier,” as agreed. He also testified that the belongings were not shipped for belongings shipped by a private moving company, rather than a “common petitioner testified that the respondent arranged to have the children’s of that order. This finding is supported b y the evidence. At the hearing, the belongings within ten days of the April 2004 order and, thus, was in contempt The trial court found that the respondent failed to ship the children’s

agreement as to cost.” days of this Order.” In return, the petitione r agreed to “pay the cost with prior electronic equipment, [one child]’s rock collection and personal items within 10 by common carrier all of the children’s personal effects to include clothing, In April 2004, the par ties stipulated that the respondent would “forward

Giacomini, 1 p. 5 50 N.H. 498, 500 (2004). trial court unsustainably exercised its discretion. In the Matter of Giacomini & whether we would have found the respondent in contempt, but whether the The contempt power is discret ionary and the proper inquiry is not

erroneously ordered her to pay the petitioner $1,300. transport the children’s belongings within ten days of the order and that she was in contempt of the court’s April 2004 order requiring her to Finally, the respondent argues that the trial court impermissibly found

err by imputing $30,000 in annual income to her. See RSA 4 p. 5 58 - C:2, IV(a). finding that the respondent was voluntarily unemployed, the trial court did not unsustainable exercise of discret ion. We further conclude that, in light of its p. 6 6

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

testimony supports this finding, we uphold the trial court’s award. while they were waiting for their own clothes was $1,300. As the petitioner’s trial court’s finding that the amount the petitioner paid to clothe the children The respondent finally contends that the record does not support the

finding. Bursey, 145 N.H. 283, 287 (2000). The evi dence does not compel such a court’s order and that the court failed to take this into account. See Bursey v. The respondent also argues that she was unable to comply with the

sanction was civil, not criminal. issuing this particular contempt sanction.” Id. Ac cordingly, we hold that the that the trial court sought to protect its authority and vindicate its dignity by remedial and for the petitioner’s benefit. “There is no indication in the record children in the summer, the tr ial court imposed a punishment that was the petitioner $1,300 to reimburse him for the money he spent to clothe the petitioner’s motion as one for damages. By granting this motion and awarding was, in fact, a criminal penalty. See id. at 728. The court, in effect, treated the We disagree with the respondent that the court’s sanction in this case

may be imprisoned for a determinate amount of time. Id. vindicate its dignity. Id. Unlike the civil contemnor, the criminal contemnor prosecution for criminal contempt is to protec t the court’s authority and contemnor complies with the court’s order. Id. By contrast, the purpose of fines payable to the complainant or in an indeterminate jail sentence until the the complaining party. Id. Civil contempt proceedings may result in money In civil contempt, the punishment is remedial, coercive and for the benefit of the punishment.” In the Matter of Kosek & Kosek, 151 N.H. 722, 727 (2005). “The difference between civil and criminal contempt is the character of

procedural protections required of criminal contempt proceedings. criminal in nature and that the trial court failed to afford her the applicable The respondent argues that the trial court’s contempt sanction was

order. discretion when it found that the responden t was in contempt of the April 2004 its order. Accordingly, we hold that the trial court sustainably exercised its