2006-928, I/M/O JANE L. CARR AND JAMES R. EDMUNDS

The petitioner, Jane L. Carr (mother), appeals an order of

orally), for the respondent. Mosca Law Office, of Manchester (Edward C. Mosca on the brief and to press. Errors may be reported by E-mail at the following address:

and orally), for the petitioner. Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the brief

IN THE MATTER OF JANE L. CARR AND JAMES R. EDMUNDS

editorial errors in order that corrections may be made before the opinion goes No. 2006-928 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 p. 2 22 as this decision.

parties to split the costs of “uninsured medical expenses.” The mother appeals

support awards.”

parent’s income.”

(Supp. p. 2 2006). The presumption may be overcome and the trial court may the father’s child support obligation was $250 per month. It also ordered the support.” Baker & Winkler, 154 N.H. at 187 (citation omitted); RSA 458-C:4, II since the parties were divorced.” Accordingly, the trial court determined that support award calculated under the guidelines is the correct amount of child parties’ prior agreement and ha[d] had little, if any, contact with the children 458-C, and establish a uniform system to determine the amount of child C:3 (2004) (amended 2007). “There is a rebuttable presumption that a child (citations omitted); see RSA 458-C:2 (Supp. 2006) (amended 2007); RSA 458trial court . . . determines a parent’s total child support obligation.” Id. at 524 definitions and formulae, the legislature provided guidelines from which the (2004) (citations omitted). To this end, “[t]hrough a complex scheme of

responsibility for their children, according to the relative percentage of each both the custodial and non-custodial parents share in the support uniformity in determining the amount of child support, but also to ensure that (citation omitted). “The purpose of RSA chapter 458-C is not only to ensure

the guidelines [wa]s appropriate” because “the [father] ha[d] relied upon the “New Hampshire’s child support guidelines are codified in RSA chapter

Guidelines (the guidelines). Matter of State & Estate of Crabtree, 155 N.H. 565, 570 ( p. 2 2007). unless it is unsupported by the evidence or tainted by an error of law. In the We will uphold the trial court’s decision with regard to child support

half of any uncovered orthodontic costs. the father be ordered to add the children to his dental insurance policy and pay

establishing the amount of support, the trial court found that “a deviation from informed that he could not do so under RSA chapters 170-B or 170-C. In that the court order child support under the New Hampshire Child Support relinquish his parental rights pursuant to the stipulation, but had been order child support. It found that the father had made reasonable efforts to After the hearing, the trial court concluded that it was authorized to

while the father calculated it at $594. At a hearing, the mother requested that of child support owed. The mother calculated the monthly amount at $648, child support guidelines worksheets. The parties disagreed about the amount father objected. Both parties submitted financial affidavits and completed

Six years later, on March 3, p. 2 2006, the mother filed a motion requesting

within thirty days of the denial for modification of the stipulation.” the termination of the [father]’s parental rights, the [mother] shall file a motion p. 3 3

estopped. unfair advantage or impose an unfair detriment on the opposing party if not whether the party seeking to assert an inconsistent position would derive an adjustment in the child support award. succeeded in persuading a court to accept that party’s earlier position; and ( p. 3 3) treatment constituted a special circumstance warranting an upward expenses. orthodontic costs because the mother never asserted that orthodontic her requests for dental insurance coverage and uncovered orthodontic child’s needs. She also claims that the trial court erred in failing to address

Porter, 155 N.H. at 157; Cohoon, 154 N.H. at 4-5.

clearly inconsistent with its earlier position; (2) whether the party has decision whether to apply the doctrine: (1) whether the party’s later position is and the trial court was not required to make written findings with respect to vary with each situation, the following three factors typically inform the court was not required to make a distinct order with respect to such expenses; (2007). While the circumstances under which judicial estoppel may be invoked issues that either are fiscal in nature or affect a parent’s ability to provide for a requests for dental insurance and uncovered orthodontic expenses; the trial and citations omitted); see also Porter v. City of Manchester, 155 N.H. 149, 156 insurance and uninsured medical expenses sufficiently addressed the mother’s in another phase.” Cohoon v. IDM Software, 15 p. 3 3 N.H. 1, 4 (2005) (quotation case on an argument and then relying on a contradictory argument to prevail judicial estoppel generally prevents a party from prevailing in one phase of a We first address the father’s estoppel arguments. “The doctrine of

limited the trial court to considering as “special circumstances” only those with the children after the divorce. The mother reasons that RSA 458-C:5, I, (h) and (j). He also contends that: the trial court’s order regarding health that the father would relinquish his parental rights, and his lack of contact estopped, the trial court’s bases for deviation were proper under RSA 458-C:5, I warranting a downward deviation from the guidelines, and, even if she is not from claiming that the parties’ agreement is not a special circumstance The father counters that the mother is judicially and equitably estopped

including orders modifying an existing support order. These guidelines, however, must be applied in all child support cases,

inappropriate” because of “special circumstances.”

from the guidelines upon the father’s reliance upon the parties’ prior agreement The mother argues that the trial court improperly based its deviation

N.H. at 187; RSA 458-C:4, I (Supp. 2006).

at 187; RSA 458-C:4, II; RSA 458-C:5, I, II (Supp. 2006) (amended 2007).

evidence that the application of the guidelines would be “unjust or deviate from the guidelines when a party shows by a preponderance of the p. 4 4

resultant injury.

his injury.” commitments communicated to another who reasonably relies upon them to estoppel serves to forbid one to speak against his own act, representations or 552, 555 (1982) (citations omitted). knowledge and a duty to make a disclosure.” Guri (Cushing) v. Guri, 122 N.H. of estoppel, however, is limited to situations where the silent party has from silence or inaction, as opposed to an actual misrepresentation. This form

Id. “Under certain circumstances, an estoppel may arise

false representation or concealment, and ignorant of the truth; and (3) a who was intentionally, or through culpable neglect, induced to rely upon the knowingly false representation or concealment of material facts; (2) a recipient did not gain an (citation omitted). The party asserting equitable estoppel must prove: (1) a that the prior agreement is not presently a special circumstance. The mother J.G.M.C.J. Corp. v. C.L.A.S.S., Inc., 155 N.H. p. 4 452, 462 (2007) circumstance six years earlier, and, as such, the mother is entitled to argue statutorily irrelevant that the parties’ agreement was considered a special claiming that the parties’ agreement is not a special circumstance. “Equitable The father also contends that the mother is equitably estopped from

mother’s allegedly inconsistent positions, judicial estoppel does not apply. Because the father has failed to establish that any unfairness resulted from the review process designed to ensure that child support orders remain equitable. when she sought to modify child support pursuant to a statutory de novo

unfair advantage or impose an unfair detriment upon the father

special circumstances warranted deviation from that obligation. It is therefore Donovan & Donovan, 152 N.H. 55, 60 (2005), and reassess whether existing total support obligation based upon their current incomes, In the Matter of modification petition, the trial court was required to recalculate the parties’ the existing support obligations by the court. Id. at 61 p. 4 4. In reviewing the Moreover, under RSA 458-C:7, I, the mother was entitled to automatic review of circumstance under that same statute. We disagree. economic circumstances and the effect of those changes on the parties’ needs. estopped from claiming that that agreement does not qualify as a special to allow the trial court to account for non-substantial changes in the parties’ a special circumstance under RSA 458-C:5, I, the mother is now judicially support orders, In the Matter of Peirce & Peirce, 146 N.H. 611, 613 (2001), and of circumstances. A purpose of this statute is to resolve inequities in child three years, without requiring the moving parent to show a substantial change either parent the right to apply for modification of a child support order every unfair detriment if the mother is not estopped. However, RSA 458-C:7, I, gives argues that the mother would gain an unfair benefit and he would suffer an Specifically with respect to the third judicial estoppel factor, the father

stipulation to sever the legal relationship between himself and his children was The father argues that because the parties’ agreement at the time of the p. 5 5

following: written findings relative to the applicability of the

consideration. order, taking all relevant circumstances into

(Emphasis added.) provided under this chapter. The court shall make

adjustments in the application of support guidelines the court, shall be considered and may result in

avoid an unreasonably low or confiscatory support (j) Other special circumstances found by the court to . . . . (h) Parenting schedule; . . . .

the following, if raised by any party to the action or by Special circumstances, including, but not limited to, the words of the statute considered as a whole.

interpretation, we are the final arbiters of the legislative intent as expressed in pertinent part: RSA 4 p. 5 58-C:5, I, allows for deviation from the guidelines and provides, in

Killarney, Inc., 1 p. 5 54 N.H. 637, 641 (2006). context of the overall statutory scheme and not in isolation. Bendetson v. legislature did not see fit to include. parents Id. Finally, we interpret a statute in the will not consider what the legislature might have said or add language that the words used. Id. We interpret legislative intent from the statute as written and the language of the statute, we ascribe the plain and ordinary meaning to the v. Johanson), 156 N.H. ___, ___ (decided September 5, 2007). When examining economic support for the Petition of State of N.H. (State parental rights. We disagree. The purpose of child support is to provide of the probate court’s decision not to approve the termination of the father’s support guidelines pursuant to RSA 458-C:5, I. In matters of statutory We now address whether the trial court properly deviated from the child

Accordingly, the doctrine of equitable estoppel does not apply.

de novo review of existing support obligations. See RSA 4 p. 5 58-C:7, I.

protect the children, particularly where the legislature has explicitly permitted cannot apply to prevent a court from awarding the proper amount of support to amount of support to which they are entitled. Therefore, equitable estoppel Regardless of the parents’ actions, the children should not be deprived of the

return to the trial court for modification of the support order within thirty days The father claims that estoppel may arise from the mother’s failure to p. 6 6

agreement may be upheld under RSA 458-C:5, I(j). decision to deviate from the guidelines based upon his reliance upon the prior agreement. Therefore, we reject the father’s argument that the trial court’s not find that the father suffered any economic detriment as a result of the

based upon income and expenses.”

the guidelines support amount is confiscatory. Moreover, the trial court did reliance upon the stipulation affected his present financial situation such that RSA 458-C:5, I(j). No evidence in the record demonstrates how the father’s set forth in RSA 458-C:5, I, as addressing “matters of support adjustments agreement cannot, as a matter of law, qualify as a special circumstance under Accordingly, standing alone, the father’s reliance upon the parties’ prior

low or confiscatory support order must be economic in nature. “other special circumstances” that a court may find to avoid an unreasonably 154 N.H. at 2 p. 6 68. Consistent with this prior case law, we conclude that the circumstances under RSA 458-C:5, I(j). Clark, 154 N.H. at 424, 425; Fulton, consider their impact upon the financial condition of the parties as special benefits do not constitute income for child support purposes, trial courts may particularized.” N.H. 522, 526 (2003). We have also held that although gifts and in-kind

Furthermore, we have previously interpreted the special circumstances must similarly involve economic factors. the “other special circumstances” that a court may consider under subsection j dictate whether and to what extent children are financially supported. financial condition upon his or her ability to meet a child’s needs. As a result, factors unrelated to the economic circumstances of the parents and children to RSA 458-C:5, I, are economic in nature and relate to the impact of a parent’s also RSA 458-C:1, II (Supp. 200 p. 6 6). It would defeat the statute’s purpose to allow child support, In the Matter of Dolan & Dolan, 147 N.H. 218, 221 (2001). See standard of living equal to that of the subsequent family of the parent paying quotation and brackets omitted), and ensure that children are not deprived of a statute, the application of that statute is limited to the types of items therein Matter of Jerome & Jerome, 150 N.H. 626, 630 (2004) (emphasis added; 458-C “[t]o minimize the economic consequences of divorce to children,” In the This interpretation is consistent with the stated purpose of RSA chapter circumstance under RSA 458-C:5, I(j). We disagree.

2 p. 6 67 (2006). Except for subsection j, all of the special circumstances listed in (citations omitted); see also In the Matter of Fulton & Fulton, 154 N.H. 264,

In the Matter of Clark & Clark, 154 N.H. 420, 423 (200 p. 6 6)

“When the legislature uses the phrase ‘including, but not limited to’ in a

requiring him to relinquish his parental rights may constitute a special The father first argues that his reliance upon the parties’ prior agreement p. 7 7

the guidelines. remand to the trial court for calculation of the father’s support obligation under father to pay would be contrary to the purpose of the child support statute to allow the

address her requests for dental insurance coverage and payment of uncovered Finally, the mother contends that the trial court erred in failing to

(2002).

See In the Matter of Gordon & Gordon, 14 p. 7 7 N.H. 693, 700 disagree.

circumstances warranted a downward deviation from the guidelines, and situation. Accordingly, we reverse the trial court’s finding that special assumes no child-rearing expenses as a result of the parenting schedule, it contact is not economic in nature and has no relation to the parties’ financial obligor parent’s support obligations, outside of his support obligations. In these circumstances, where the father respect to the father’s reliance upon the prior agreement. The father’s lack of responsibilities, and, therefore, incurs no costs in caring for the children 458-C:5, I(j), we reject that argument for the same reasons set forth above with rearing expenses. The father has no visitation rights or parenting rights or contact with the children constituted another special circumstance under RSA Furthermore, to the extent the father also contends that his lack of

from the guidelines was justified under RSA 458-C:5, I(h). (1955). Therefore, we reject the father’s contention that a downward deviation N.H. 432, 433-34 (1964); Guggenheimer v. Guggenheimer, 99 N.H. 399, 403 schedule” warrants a downward deviation from the guidelines amount. We less than the guidelines amount. Cf. Bourdon v. Bourdon, 105

physical custody of children may result in a downward adjustment of the custody arrangements,” RSA 458-C:5, I(h) (2004), we noted that sharing equal of RSA 458-C:5, I(h), which listed as a special circumstance “split or shared mother at all times, and, consequently, the mother assumes all the child- Here, pursuant to the “parenting schedule,” the children stay with the

not apply to this case. parent. Cf. Wheaton-Dunberger, 13 p. 7 7 N.H. at 508-09. The same rationale does obligor parent assumes virtually the same child-rearing expenses as the obligee circumstance under RSA 458-C:5, I(h). He argues that this “parenting (1993). This reduction may be appropriate in such circumstances because the N.H. 393, 395 (2003); children represent the parties’ “parenting schedule,” which is a special Wheaton-Dunberger v. Dunberger, 137 N.H. 504, 508 coupled with the mother’s assumption of sole financial responsibility for the see In the Matter of Folley & Folley, 149

schedule of when the child is in the care of each parent.” Under a prior version RSA 461-A:1, VI (Supp. 2006) defines “parenting schedule” as “the

with the children since the divorce. The father asserts that this lack of contact The trial court’s other basis for deviation was the father’s lack of contact p. 8 8

benefit of a clear finding by the trial court.

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

clarification or consideration of these requests by the mother. Weare, 153 N.H. 510, 513 (2006). Accordingly, we remand to the trial court for

ruled upon these requests. We decline to examine these issues without the orthodontic expenses. The record is ambiguous as to whether the trial court