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2007-733, I/M/O JOANNE FONTAINE AND CALVIN F. DUNN, III
years.
that surgery and reconstruction procedures would continue for several more
trial court determined that because his incapacity was caused by his own physically incapacitated, which limited his current ability to earn income. The
jaw to be reconstructed. He had several surgeries and testified at the hearing gunshot wound in the face, causing significant injury that required his lower born in 1994. In November 2001, the respondent sustained a self-inflicted
support petition. After a hearing, the trial court found that the respondent was
appeal. The parties were never married; they are the parents of twin daughters
In 2005, the petitioner, Joanne Fontaine, filed a parenting and child Trial Court (
The following facts were found by the trial court and are not contested on
RSA 458-C:2, IV(a) (2004). We vacate and remand. establishing his child support obligation based upon his past earnings. See
Sadler, J.) finding that he was voluntarily underemployed and
HICKS, J.
The respondent, Calvin F. Dunn, III, appeals an order of the
to press. Errors may be reported by E-mail at the following address: Benjamin T. King on the brief), for the respondent. Douglas, Leonard & Garvey, P.C., of Concord (Carolyn S. Garvey and
Joanne Fontaine, pro se, filed no brief.
Opinion Issued: August 21, 2008 page is: http://www.courts.state.nh.us/supreme. Submitted: August 1, 2008
IN THE MATTER OF JOANNE FONTAINE AND CALVIN F. DUNN, III
editorial errors in order that corrections may be made before the opinion goes No. 2007-733 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Laconia Family Division 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 underemployed’ for the purposes of imputing income to him.”
terms of that statute, the [parent] voluntarily becomes ‘unemployed or
incapacitated would the trial court proceed to determine whether, under the
2
concurred.
analyses. “Only if it determined that the [parent is] not physically or mentally parent is voluntarily unemployed or underemployed requires two separate physically or mentally incapacitated. Rather, a determination of whether a
by the record. the fact finder, whose decision will be affirmed on appeal unless unsupported incapacitated.” Whether a party is underemployed is generally a question for BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,
Vacated and remanded.
may deem necessary. parent’s culpability is not relevant to a determination of whether the parent is the trial court’s order and remand for such further proceedings as the trial court finding that the respondent was voluntarily underemployed. We therefore vacate Having made a finding of physical incapacitation, the trial court erred in
N.H. at 371 (quoting RSA 458-C:2, IV(a)).
Rossino, 153
unemployed or underemployed, unless the parent is physically or mentally
underemployed.
said or add words legislature did not include). Under RSA 458-C:2, IV(a), a intent from statute as written and do not consider what legislature might have 532, 534 (2007) (when examining language of statute, we interpret legislative not permit such a distinction. See Appeal of Harleysville Ins. Co., 156 N.H. time.” We do not read Rossino so narrowly; moreover, RSA 458-C:2, IV(a) does electrocute himself and the respondent agreed that he was unable to work full involuntary act as there is no evidence in the opinion to suggest that he tried to amount a parent has earned in cases where the parent voluntarily becomes Rossino as gross income the difference between the amount a parent is earning and the was distinguishable because “Rossino was electrocuted on the job; an Rossino, 153 N.H. at 371. In this case, the trial court found incapacitated before it reaches the issue of whether the parent is voluntarily that a trial court first determine that a parent is not physically or mentally We have previously held that the language of RSA 458-C:2, IV(a) requires
In the Matter of Sarvela & Sarvela, 154 N.H. 426, 435 (2006).
RSA 458-C:2, IV(a) provides: “The court, in its discretion, may consider
and (2) unsupported by the evidence. and our decision in In the Matter of Rossino & Rossino, 153 N.H. 367 (2006); underemployed is: (1) in conflict with the plain language of RSA 458-C:2, IV(a) On appeal, he argues that the trial court’s finding that he is voluntarily voluntary act, he was voluntarily underemployed for purposes of child support.