This page is an unofficial mirror and is not legal advice. Verify the document against the official source before relying on it.
2007-190, I/M/O VIRGINIA COLE AND ROGER L. FORD
court granted the motion and this appeal followed. post-secondary educational expenses to the best of their abilities. The trial parties’ divorce decree that ordered both parties to contribute to the children’s
inheritance that the father had received, and to enforce the provision in the
the father’s child support arrearage to include statutory interest, to attach an interest in its calculation. In 2006, the mother, Virginia Cole, moved to modify support arrearage of over $45,000.00, but the court did not include statutory
June 1998. By 2003, the court found the father had accumulated a child
towards his children’s post-secondary educational expenses. We affirm.
Superior Court (
The record supports the following facts. The parties were divorced in
interest and enforcing a provision in the final divorce decree ordering payments
Mohl, J.) modifying his child support arrearage to include
GALWAY, J.
The petitioner-father, Roger L. Ford, appeals an order of the
Moeller and Robert G. Eaton on the brief), for the respondent. to press. Errors may be reported by E-mail at the following address: Mark S. Moeller, P.A., of Dover and Robert G. Eaton of Rye (Mark S.
for the petitioner. The Coolidge Law Firm, PLLC, of Dover (Linda J. Mayrand on the brief),
Opinion Issued: December 20, 2007 Submitted: November 13, 2007
IN THE MATTER OF VIRGINIA COLE AND ROGER L. FORD
editorial errors in order that corrections may be made before the opinion goes No. 2007-190 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
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
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 2
a child support modification, RSA 458-C:7, II does not apply. statutory interest. In under his current obligation to properly include the interest. Since this is not obligation, but rather to correct the amount the court determined that he owed the amount owed. The mother did not move to alter the father’s child support arrearage accumulated by the father, the court failed to include this interest in retroactively. and since Giacomini involved substantive rights, it should not be applied years after the mother received a judgment against the father for child support retroactively. The father contends that by which date he had paid off his entire arrearage. Giacomini was decided in 2005, seven the date he was served with the mother’s motion to modify, August 16, 2006, The father next argues that the trial court erred in applying Giacomini could not be held responsible for interest on the arrearage that accrued prior to
support; this is a modification of the child support arrearage to include this statute is misplaced because the modification at issue is not of child been given to the respondent.” RSA 458-C:7, II. The father’s reliance upon interest. In this case, when the trial court calculated the child support id. A person’s court-ordered child support obligation includes statutory accrues on child support payments when they become due and payable. See interest is included as part of all child support orders because it automatically judgments, and as such, accrue interest.” Giacomini, 151 N.H. at 777. Thus, (Supp. 2007), “child support payments that are due and payable are child support modification from taking effect before the date of service, he (2004)(current version at RSA 461-A:14, VIII (Supp. 2007)) and RSA 336:1, II
Giacomini we ruled that, based upon RSA 458:17, VII
court’s exercise of discretion was unsustainable. be effective prior to the date that notice of the petition for modification has RSA 458-C:7, II provides that “[a]ny child support modification shall not unless they are unsupported by the evidence or legally erroneous.
evidence that the father was able to pay.
provision in light of The father argues that under RSA 458-C:7, II ( 2004), which prevents a
the arrearage; Cannon, 149 N.H. 194, 196 ( 2003).
In the Matter of Feddersen &
modification order only if it clearly appears from the evidence, that the trial Matter of Fowler and Fowler, 145 N.H. 516, 519 ( 2000). We will set aside a
In the
On appeal, we will affirm the findings and rulings of the trial court
and (4) enforcing the post-secondary education expense provision absent
In the Matter of Donovan & Donovan, 15 2 N.H. 55 (2005);
775 ( 2005), retroactively; (3) enforcing the post-secondary education expense
( 2) applying In the Matter of Giacomini & Giacomini, 151 N.H.
interest for the period before he was served with the mother’s motion to modify The father contends that the trial court erred by: (1) including statutory 3
statute became effective and upheld the trial court’s order.
school.”
Id. at 6 3.
the 2004 statute did not apply retroactively to orders issued before the date the contribute to their children’s college expenses . . . .” Id. at 61. We held that trial court had ‘broad discretionary powers’ to order divorced parents to
Id. at 57, 61. We noted that, at the time of the divorce in 2000, “the
college expenses or other educational expenses beyond the completion of high child support order shall require a parent to contribute to an adult child’s trial court’s order in light of a statute that took effect in 2004 that stated, “No In 2004, the respondent contended that the trial court could not enforce the post-secondary educational expenses to the best of his or her ability. Id. at 61. stipulation, the parties agreed that each would contribute to the children’s stipulation an order. Donovan, 152 N.H. at 56, 61. As part of the permanent became due. in 2000 when the court approved their permanent stipulation, making the judgment against the respondent starting when the child support payments We find Donovan determinative. In that case, the parties were divorced payable, we held that the trial court should have included interest in the of that decree. attend the final hearing, and, thus, he did not stipulate to any of the provisions parties’ divorce decree was issued under a default order when he failed to because the father did not agree to the provision. According to the father, the children’s post-secondary educational expenses to the best of their abilities provision of the parties’ divorce decree that orders the parties to pay for their The father next contends that the trial court erred in enforcing the
Id. at 779.
ruling that child support payments are judgments when they are due and from the time each child support payment became due. Id. Based upon our petitioner appealed the trial court’s failure to include interest on the judgment being entered against the respondent for unpaid child support. Id. The Id. at 776. In 2000, post-divorce proceedings began, resulting in a judgment Giacomini itself is illustrative. In that case, the parties divorced in 1988.
became effective. See Giacomini, 151 N.H. at 777, 779. Giacomini ruling interpreting RSA 458:17 applies from the date the statute Co., 149 N.H. 656, 658 (200 3) (brackets and quotation omitted). Therefore, the effect, what it should have always been.” Estate of Ireland v. Worcester Ins. Erb, Inc., 213 A.2d at 383. “By saying what the law is, the court says, in statute becomes part of the legislation from the time of its enactment. Harry C. that became effective in 1988. See RSA 458:17. Judicial construction of a A.2d 383, 383 (Pa. Super. Ct. 1965). Giacomini simply interpreted a statute retroactive legislation. See Harry C. Erb, Inc. v. Shell Construction Co., 213 application of a judicial decision interpreting an existing statute with The father’s arguments are misplaced because they equate retroactive 4
ability to pay, we decline to do so now.
on motion by either party. Since the trial court did not address the father’s court left the issue of the parties’ respective obligations open for determination court did not purport to decide whether the father has the ability to pay; the finding that he can afford to pay any of these expenses. However, the trial BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.
Affirmed.
discretion was unsustainable, we will not overturn the court’s rulings. motion to enforce the post-secondary education expense provision. Since the father has failed to show that the trial court’s exercise of
secondary education expense provision because the record does not support a The father further argues that the trial court erred in enforcing the post-
not apply retroactively, the trial court did not err by granting the mother’s discretionary powers to order this contribution. Because the 200 4 statute does order predated the effective date of the statute, the trial court had broad post-secondary educational expenses was an order. Since the trial court’s that the default judgment ordering the parties to contribute to their children’s issued before the statute’s effective date. See id. at 61, 63. The father agrees agreement between the parties, but whether there had been a court order Our decision in Donovan did not turn upon whether there was an