2006-409, IN THE MATTER OF SEAN ADAMS AND PAMELA LEE (ADAMS) HOULE

Kathleen Goulet

No. 2006-409

Hillsborough-northern judicial district

insurance. completely responsible for medical, dental and related expenses not covered by support, but was required to provide health and dental insurance and to be brings the children to school.” The respondent was not ordered to pay child “[e]very Tuesday from after school, . . . until Thursday morning, when she respondent was granted reasonable visitation with the children including awarded primary physical custody of the parties’ three children. The Superior Court (Abramson before us. The parties were divorced on February 7, 2005. The petitioner was HICKS, J. The respondent, Pamela Lee Houle, appeals an order of the The following facts were found by the trial court or appear in the record

M. Kathryn McCarroll

We reverse and remand. M.) granting a motion by the petitioner, Sean Adams, to modify child support. THE SUPREME COURT OF NEW HAMPSHIRE, J.) approving an order of the Marital Master (Green,

respondent.

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 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, One Charles Doe Drive, Concord, 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 22 as p. 2 On appeal, the respondent argues, inter

pay $127.00 per week in child support. Upon the master’s recommendation, the trial court ordered the respondent to

financial obligation is solely the burden of [the petitioner].

children, she has incurred no financial obligation and said

that time. Since she has moved to Kentucky and has not seen said incurred substantial financial obligation for the children during

respondent] had exercised her parenting time, she would have permanent stipulations. Under the permanent stipulations, if [the

N.H. 55, 59 (2005) (vacating modification of child support where “[t]he father’s parties’ needs and abilities. Cf continuing the original order improper and unfair.” Hutchinson v. Hutchinson substantially modified the circumstances surrounding the., e.g., In the Matter of Donovan & Donovan, 152 show a substantial change in circumstances of the parties that makes This is a fact-specific inquiry that requires the admission of evidence as to the their respective abilities to meet those needs.” Hutchinson “To obtain a modification of support obligations, the moving party must, 133 N.H. at 774. circumstances exists, the trial court will look at the needs of the parties and (emphasis added). “In determining whether a substantial change in change in circumstances . . . .” Gnirk v. Gnirk, 134 N.H. 199, 202 (1991) modification should not be granted in the absence of evidence of a substantial In the Matter of Rohdenburg & Rohdenburg, 149 N.H. 276, 279 (2003). “A all information relevant to that determination before exercising that discretion.” broad discretion regarding the modification of child support, “they must have 133 N.H. 772, 774 (1990) (quotation omitted). While marital masters have

having actual parenting time with the children since July, has

N.H. 367, 369 (2006) (quotations and citation omitted). unsustainable exercise of discretion.” In the Matter of Rossino & Rossino, 153 modification order only if it clearly appears that the trial court engaged in an and modifying child support orders. We will overturn a child support modification of child support. “Trial courts have broad discretion in reviewing parenting time was a substantial change of circumstances justifying a concluding that her relocation to Kentucky and/or her failure to exercise

[The respondent], by her relocation to Kentucky and by not

modification of child support.” The master reasoned: parenting time is a substantial change of circumstance which justifies a court, concluded that “[the respondent’s] relocation and failure to exercise Following a hearing, the marital master, in a recommendation approved by the modify the decree as to, among other things, child support and visitation. remarried and has another child. On July 1, 2005, the petitioner moved to Not long after the divorce, the respondent moved to Kentucky. She has conclusion that the master’s ruling is unsupported by the evidence. Cf p. 3 The transcript of the hearing on the motion to modify bolsters our

documentation, we have no argument or evidence to the contrary. would have been responsible for.” As the petitioner filed no brief or supporting requiring him to feed the children three ‘extra’ meals which the Respondent incurred by the petitioner as a result of her relocation is “minimal, if any, by We hold that like the remarriage of one or both of the parties, see on appeal, the respondent asserts that any additional financial obligation petitioner’s expenses before and after the respondent’s relocation. We note that a static financial picture of the parties, affording no basis to compare the and the petitioner’s, an unsigned and undated copy. As such, they paint only set of financial affidavits of the parties: the respondent’s, dated April 4, 2006, The documentary evidence in the record before us contains only a single

N.H. at 774 (quotation omitted); cf. Kuttas v. Ritter, 879 So. 2d 3, 4, 6 (Fla. makes continuing the original order improper and unfair.” Hutchinson, 133 more, constitute “a substantial change in circumstances of the parties that of the mere fact of relocation or failure to exercise visitation does not, without modification of a decree for the support of children,” id. In other words, proof the party’s failure to exercise visitation “does not as a matter of law require a Peterson v. Buxton, 108 N.H. 77, 78 (1967), the relocation of a party and/or

matter of law. We disagree. unspecified “threshold” constitutes a substantial change of circumstances as a he appeared to find that a failure to exercise visitation in excess of an agreement provided for minimal contact, you know, once every three months,” Thus, although the master indicated that he would rule differently “if the it I find that that’s a change and therefore allows child support to be reviewed.” “substantial.” time relieves the other party of certain financial obligations. If she’s not doing support in the evidence for the master’s characterization of that obligation as “had an obligation to have [visitation] X amount of time. That X amount of had increased as a result of the respondent’s relocation. Thus, there is no under the agreement.” At another point, the master stated that the respondent of the amount by which the petitioner’s “financial obligation for the children” a substantial change of circumstances because she hasn’t exercised her rights There is no indication in the record that the master heard any evidence matter of law,” if the respondent is “not exercising her visits then . . . [there] is modifying child support). At one point, the master purported to “find that as a of the transcript of the hearing before the master,” that the master erred in Butterick v. Butterick, 127 N.H. 731, 736 (1986) (finding, “[o]n [court’s] reading

speculation unsupported by any concrete evidence”). claim that the mother could obtain employment as a bookkeeper [was] p. 4 Reversed and remanded

address the respondent’s other issues on appeal. disposition of the substantial change in circumstances issue, we need not master committed an unsustainable exercise of discretion. Given our substantial change of circumstances as a matter of law, we conclude that the

evidence, and because the master appears to have erroneously found a allegedly shifted from the respondent to the petitioner is unsupported by the Because the master’s finding regarding the extent of the financial burden concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, J J.,

circumstances absent the other circumstances unique to this case”). father’s “voluntary relocation . . . would not constitute a substantial change in from taking care of” two autistic children; the court emphasized, however, that consequence of father’s relocation was that mother “received no regular relief Dist. Ct. App. 2004) (finding substantial change of circumstances where