2005-591, IN THE MATTER OF STEVEN FULTON AND NANCY FULTON

The respondent, Nancy B. Fulton, appeals an order of the

orally), for the respondent. Flagg Law, PLLC, of Portsmouth (Jonathan M. Flagg on the brief and to press. Errors may be reported by E-mail at the following address:

on the brief, and Mark S. Moeller, orally) for the petitioner. Steven L. Fulton, pro se, and Mark S. Moeller, P.A., of Dover (Mr. Fulton

IN THE MATTER OF STEVEN L. FULTON AND NANCY B. FULTON

editorial errors in order that corrections may be made before the opinion goes No. 2005-591 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in turn. p. 2 income when computing his child support obligation. We address each issue

court’s statutory interpretation

whole.” agreement between the parties’ attorneys. guardian ad litem (GAL); and (5) not including the petitioner’s bonus in his award retroactive to March 22, 2004, because she found that there was no

which defines gross income for child support purposes. “We review the trial

ascribe the plain and ordinary meanings to the words used.” Id. “When a

Id. “We first examine the language of the statute, and, where possible,

legislature’s intent as expressed in the words of the statute considered as a 2004; (4) modifying the parties’ visitation schedule without the input of a Giacomini, 151 N.H. 775, 776 (2005). “We are the final arbiters of the support obligation. The trial court declined to make the increased support He also sought a modification to the parties’ visitation schedule. de novo.” In the Matter of Giacomini & increased commuting costs and the respondent’s changed financial situation. obligation. Resolution of this issue requires that we interpret RSA 458-C:2, IV, 458-C:2, IV (2004) for the purpose of calculating the petitioner’s child support in holding that gifts from the respondent’s family constitute income under RSA the trial court denied. The respondent first argues that the trial court erred as a matter of law increased commuting time. The respondent moved for reconsideration, which

proof; (3) failing to make the new child support order retroactive to March 22, of $2,750.00 a month to Respondent” in order to determine the petitioner’s his increased commuting costs without any supporting evidence or offers of petition for modification of his child support obligation based upon his imputing, as income to her, gifts from her family; (2) crediting the petitioner for On appeal, the respondent argues that the trial court erred by: (1)

receives regular funds from some source that she uses to support herself.”

modified the parties’ visitation schedule to accommodate the petitioner’s petitioner’s support obligation to reflect his increased commuting costs and

purposes of calculating child support.” The trial court thus “allocated income to live as comfortably as she does is includable as income to her for the petitioner’s new job commenced. In response, the petitioner filed a cross- Also, the trial court found that “the money Respondent receives that allows her order should be made retroactive to March 22, 2004, the date upon which the pursuant to an alleged agreement of the parties’ attorneys, any new support the “Respondent’s financial circumstances demonstrate that Respondent new support obligation, the trial court found that, despite being unemployed, increased the petitioner’s support obligation. When computing the petitioner’s Following a hearing on the parties’ petitions in May 2005, the trial court

modification. RSA 458-C:7, I (2004). Further, the respondent requested that, reached the age of majority, were substantial changes sufficient to warrant gross income.

p. 3 plan.

funds due them and the payers have an obligation to provide them. winner, trust beneficiary and alimony recipient all have a legal right to the may be obtained by resort to judicial compulsion. The wage earner, lottery items included in RSA 458-C:2, IV, and are thus excluded from the definition of

benefits such as health insurance or employer contributions to a retirement. . . . veterans’ benefits, unemployment benefits, and disability benefits 3

provider has a legal obligation to give; in other words, items that, if withheld, of the promise.”). Therefore, we find that gifts are not of the same type as those

them nor do the providers have any obligation to give them.

monetary. For example, it does not include real or personal property, nor does not include any items that, although they may carry value, are not programs . . . including, but not limited to, workers’ compensation, of the items listed involve payments in the form of money. RSA 458-C:2, IV

recipient, generally speaking, has a legally enforceable right and which the legal duty to perform the promise, and no action can be maintained for breach Kimball, 80 N.H. 431, 434 (1922) (“[A]n agreement to make a gift creates no

monetary, they do not confer upon their recipients the legal right to obtain the definition of gross income in RSA 458-C:2, IV. While many gifts may be Applying the above characteristics, we hold that gifts are not included in

pensions, bonuses, and payments from other government IV describes types of income that share two essential characteristics. First, all rental income, self-employment income, alimony, business profits, gambling winnings, interest, dividends, investment income, net

therein particularized. Second, the items listed in RSA 458-C:2, IV are all things to which the

1, 5-6 (2003) (applying same reasoning to the term “including”). RSA 458-C:2, (1994); annuities, social security benefits, trust income, lottery or see also Conservation Law Found. v. N.H. Wetlands Council, 150 N.H.

to” in a statute limits the application of that statute to the types of items We have previously held that the use of the phrase “including, but not limited

to incorporate in the statute.” legislature might have said or add language that the legislature did not see fit

including, but not limited to, wages, salary, commissions, tips, all income from any source, whether earned or unearned,

RSA 458-C:2, IV defines gross income for child support purposes as:

further indication of legislative intent, and we refuse to consider what the statute’s language is plain and unambiguous, we need not look beyond it for circumstances into consideration. RSA 458-C:5, I(j); p. 4 result in an unreasonably low or confiscatory support order, taking all relevant

relationships.

and determine, for example, whether including or excluding the gifts would

the economic consequences to children of the termination of their parent’s

courts may consider the impact of gifts on the financial condition of the parties a party’s special circumstances make a deviation appropriate. Thus, the trial the trial court the discretion to deviate from the child support guidelines when 4

broad changes to the wording of the statute are not for the courts to make. to address the issue of gifts under the special circumstances standard provided determining which gifts are appropriately included and which are not. Such in conflict with the stated purpose of the child support guidelines – to minimize welfare of the children. We do not read the statute to mandate an outcome so could discourage the giving of gifts and thereby, potentially, endanger the

the computation of a child support award. RSA 458-C:5 (Supp. 2005) permits

result in manifest injustice). We believe that the statute is sufficiently flexible requirement that gifts should be included, but also the standards for 416 n.8 (noting that trial court may consider gifts if excluding them would

458-C:2, IV.

This is not to say, however, that the receipt of gifts may not be relevant to

16, 21 (N.M. Ct. App. 1998). Nass v. Seaton, 904 P.2d 412, 415-16 (Alaska 1995); Styka v. Styka, 972 P.2d fit some other potential standard, would be to read into the statute not only the A.2d 252, 253 (Me. 1992); Triggs v. Triggs, 920 P.2d 653, 660-61 (Wyo. 1996); gifts be included only if they are regular, dependable, of a minimum amount, or not constitute income for child support purposes. See, e.g., True v. True, 615 other form of payment in order to avoid inclusion. Moreover, to require that that all such gifts be counted in the obligee’s income, which would result in a statutes that do not specifically include gifts, have also concluded that gifts do We note that several other jurisdictions, which have child support

we hold that gifts are not included in the definition of gross income in RSA

See RSA 458-C:1 (2004 & Supp. 2005). For all of these reasons,

cases, onerous and may tempt many parties to disguise gifts as loans or some maintain a particular lifestyle. To include gifts in gross income would require parents, other relatives, or friends of an obligee give the money necessary to obligor is either unwilling or unable to meet a standing support obligation and Lastly, it takes no great imagination to envisage a situation where an

account for all gifts, no matter how minute or sporadic, would be, in many gifts, no matter their size or frequency would be included. To require parties to policy in that if the statute is read to include monetary gifts, then all monetary Furthermore, our plain language analysis is supported by sound public order retroactive to a date prior to the date of notice. p. 5 modification is given to the responding party, litigants can agree to make the modification is not effective prior to the date that notice of the petition for

the terms of RSA 458-C:7, II (2004), which states that a child support

error in the trial court’s exercise of discretion here. 458-C:5 sufficient to adjust the petitioner’s obligation downward. We find no specific finding that the costs amounted to special circumstances under RSA the petitioner’s child support obligation in accordance with this opinion.

trial court engaged in an unsustainable exercise of discretion.” finding that the guidelines should not be followed.” support award, either upward or downward, when the master makes a specific improper or unreasonable. “Under RSA 458-C:4-:5, the master can adjust the an agreement of the parties’ attorneys. According to the respondent, despite and modifying child support orders.” make the new child support order retroactive to March 22, 2004, pursuant to or offers of proof. We disagree. “Trial courts have broad discretion in reviewing trial court of the amounts by which his costs had increased. Next, the respondent contends that the trial court erred in failing to had increased substantially since being employed in Boston, and informed the attorney represented to the trial court that the petitioner’s commuting costs

evidence of the petitioner’s costs and, in the exercise of her discretion, made a Therefore, we vacate the child support award and remand for a recalculation of Dunberger, 137 N.H. 504, 508 (1993). Here, the trial court had uncontroverted them, we will overturn modification orders only if it clearly appears that the Wheaton-Dunberger v.

never challenged the representations, nor offered any evidence that they were

The record shows that during the May 2005 hearing, the petitioner’s

omitted). 458-C:2, IV, the trial court’s ruling was erroneous as a matter of law. Id. (quotation unknown source. As we have held that gifts are not income as defined in RSA determine the parties’ respective needs and their respective abilities to meet respondent based upon her regular receipt of substantial funds from an N.H. 626, 628 (2004). “Because trial courts are in the best position to

statutory scheme, it is free to amend the statutes as it sees fit.” The respondent next contends that the trial court erred in crediting the

Here, the trial court allocated $2,750.00 in monthly income to the

Concord Heritage Life Ins. Co., 149 N.H. 216, 221 (2003).

advisable. “Of course, if the legislature disagrees with our construction of its in RSA 458-C:5 and that a strict, bright-line rule is neither necessary nor of a GAL.

p. 6 decision not to do so.

Only after the May 2005 hearing did the respondent request the appointment not be appointed. The trial court agreed and, accordingly, did not appoint one. respondent’s attorney stated that a GAL was not needed and that one should not required by the statute to appoint a GAL and we find no error in her a GAL was neither necessary nor desirable. Accordingly, the trial court was the respondent’s attorney represented to the trial court during the hearing that

need for a GAL, one should be appointed. During the May 2005 hearing, the

Here, neither party requested a GAL prior to or during the hearing and, in fact,

respondent’s motion to bring forward and modify that, if the trial court felt the

appointment of a GAL only if one was requested prior to or during a hearing. represent such person’s interest in the case.

authority to make an agreement contrary to the terms of RSA 458-C:7, II. See also RSA 458:17-a, I (2004) (repealed 2005) (GAL

GAL would be needed was the petitioner’s statement in his answer to the

appears that the trial court engaged in an unsustainable exercise of discretion. Prior to its amendment in 2005, RSA 464-A:41, I, mandated the schedule. As stated, we will overturn modification orders only if it clearly ad litem for such minor or legally incapacitated person and to appoint a competent and disinterested person to act as guardian court may, and upon the request of any interested person shall,

enforceable agreement, we need not determine whether parties have the

(Emphasis added.) Prior to the May 2005 hearing, the only indication that a

the input of a GAL before modifying the parties’ custody and visitation

or a legally incapacitated person are not fully represented, the court it appears to the court that the interest or rights of a minor When before or during the hearing on any proceeding in any them. Because the trial court concluded that the parties did not have an 2005 hearing, RSA 464-A:41, I (2004) (amended 2005), stated: supported by evidence in the record and, accordingly, we will not overturn interpretation factual conclusions regarding the lack of acceptance and consideration are de novo. Giacomini, 151 N.H. at 776. At the time of the May Jerome, 150 N.H. at 628. However, we review the trial court’s statutory

The respondent next argues that the trial court erred in failing to obtain

never accepted and that no consideration was exchanged. The trial court’s that the petitioner made an offer regarding child support, but that the offer was ruling if it is supported by the evidence. Id. at p. 7 729. Here, the trial court found 726, 728-29 (1997). Absent an error of law, we will affirm the trial court’s exists is a question of fact. Byblos Corp. v. Salem Farm Realty Trust, 141 N.H. The trial court’s determination whether a binding settlement agreement 7

petitioner’s bonus pay on his child support obligation. record is not clear, the respondent may on remand, address the effect of the petitioner’s support obligation in light of our holding above, and because the

Because the matter is being remanded for a new determination of the

the petitioner’s bonus pay when calculating his child support obligation.

BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.

Finally, the respondent argues that the trial court erred by not including

granted). may be appointed to continue to represent interests of children after divorce is