2008-707, IN THE MATTER OF TIMOTHY SULLIVAN AND DOROTHY SULLIVAN

The respondent, Dorothy Sullivan, challenges a

A. Biron on the brief, and Mr. Fontaine orally), for the respondent. Welts, White & Fontaine, P.C., of Nashua (Michael J. Fontaine and Lisa to press. Errors may be reported by E-mail at the following address: memorandum of law and orally), for the petitioner. Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF TIMOTHY SULLIVAN AND DOROTHY SULLIVAN

No. 2008-707 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 different category of income.” p. 2 the employer “elect[ed], for whatever reason, to show [the forgiveness] as a very child support in 2007. performance in 2006, and the petitioner paid the respondent no additional

displayed alongside. in lieu of a bonus, the petitioner’s attorney was similarly unsure, saying that

petitioner’s employer did not purport to pay him a bonus in 2007 for his

“Regular Earnings Salary”), and his bonus for work performed in 2005 is the loan. When asked by the court whether the loan forgiveness was received for December 31, 2006, under total earnings (and two entries above his on the loan. He also said he was unsure why his employer forgave a portion of “Perf Achievement Incentive” line item also appears in the petitioner’s pay stub petitioner’s pay stub. Aside from the above-described transactions, the contrary to the note amortization schedule, he still had a balance outstanding second payment, and, unlike the March payment, it does not appear on the zero balance on the loan. The schedule does not provide an explanation of that

on the petitioner’s December 2007 pay stub was “a forgiveness of the balance monetary amount appears directly across from this entry. In comparison, a receive; that he had not yet made any payments on the loan himself; and that,

indicates a second payment of $65,405.94 on June 16, 2007, resulting in a

“[a]pproximately one-half of [the loan] has been repaid,” and the “Loan Income” line item is a listing entitled “Perf[ormance] Achievement Incentive.” No represented that this was the only loan forgiveness he had received or would “income” for the purposes of child support. According to the court’s order, (2000). Also under total earnings and directly underneath the “Loan Income” Petitioner’s financial obligations or expenses,” and that it did not constitute Service considers loan forgiveness to be taxable income. 26 U.S.C. § 61(a)(12) $29,603.02 loan payment. Furthermore, the note amortization schedule The court ruled that the loan forgiveness was “a reduction in the

forgiveness documented in his December 2007 pay stub. However, he petitioner acknowledged during offers of proof that he received the loan deductions as a net “Personal Loan” of $29,603.01. The Internal Revenue appears as a gross “06 Bonus” of $43,954, amounting to a net after-tax contempt on August 24, 2007. At the hearing on March 31, 2008, the The respondent filed a petition to modify child support and motion for

Salary”) as gross “Loan Income” of $43,954. It also appears under after-tax In the note amortization schedule, the March 2007 loan forgiveness pay stub under total earnings (and directly underneath his “Regular Earnings $29,603.02 from his employer. This credit appeared on his December 21, 2007

employer. On March 15, 2007, the petitioner received net loan forgiveness of On June 16, 2006, the petitioner received a $90,000 loan from his forgave the entire $90,000 loan in 2007.

p. 3 pensions, employment income, alimony, business profits,

unemployment benefits, and disability benefits . . . .

support payment. The respondent contends that the petitioner’s employer

dividends, investment income, net rental income, self-

IV (Supp. 2008). the transaction at issue constitutes a “bonus[]” as enumerated in RSA 458-C:2,

to, workers’ compensation, veterans’ benefits, government programs . . . including, but not limited circumstance[],” RSA 458-C:5 (Supp. 2008), necessitating an increased child legislative intent.” bonuses, and payments from other exercised its discretion by not finding that the loan forgiveness was a “special

child support as a matter of law; and (3) that the trial court unsustainably engaged in an unsustainable exercise of discretion.” trust income, lottery or gambling winnings, interest, overturn modification orders only if it clearly appears that the trial court commissions, tips, annuities, social security benefits, discretion in reviewing and modifying child support orders,” and “we will unearned, including, but not limited to, wages, salary,

all income from any source, whether earned or

forgiveness as a bonus. We conclude that, regardless of the employer’s intent, as: RSA 458-C:2, IV defines gross income for the purposes of child support

is plain and unambiguous, we need not look beyond it for further indication of plain and ordinary meanings [of] the words used,” and if “a statute’s language disguise; (2) that loan forgiveness constitutes gross income for the purposes of Giacomini, 151 N.H. 775, 776 (2005). We interpret statutes based upon “the We review questions of law de novo. In the Matter of Giacomini &

relevant part, a motion to modify child support. “Trial courts have broad

court unsustainably exercised its discretion in failing to treat the loan decided to grant the petitioner loan forgiveness in lieu of a bonus, the trial The respondent first argues that, because the petitioner’s employer

Fulton, 154 N.H. 264, 269 (2006) (quotations omitted).

The court issued the order giving rise to this appeal in response to, in

On appeal, the respondent argues: (1) that the trial court unsustainably

reconsideration, which the court denied. of the original $90,000 loan.” The respondent filed a motion for determination unless unsupported by evidence in the record. p. 4 provided is a question for the fact finder, and we will not disturb its

thus constitutes a “bonus[]” under RSA 458-C:2, IV. gave the petitioner “in addition to” the petitioner’s “usual compensation.” It entire $90,000 loan. The exact amount of loan forgiveness the employer undisputed loan forgiveness was “an equivalent” to money that the employer

the purposes of adjusting the application of the child support guidelines. clear from its order whether the trial court determined that the entire loan was “special circumstances” surrounding an employer-provided loan forgiveness for the question of whether a spouse was “voluntarily” underemployed). It is not of Donovan & Donovan, 152 N.H. 55, 58-59 (2005) (applying this standard to

whether loan forgiveness, in this context, is “an equivalent” of money. We Finally, the respondent argues that the petitioner’s employer forgave the the petitioner $90,000, of which the employer forgave at least a portion. This nature). “special circumstances” not enumerated by the statute are economic in this would not alter the fundamental character of the transaction. In the Matter of Carr & Edmunds, 156 N.H. 498, 504 (2007) (concluding that

We note however that trial courts may, under RSA 458-C:5, consider benefits, employees may use a forgiven loan as “an equivalent” of money; the portion forgiven essentially becomes a cash payment. Unlike in-kind

addition to the petitioner’s usual compensation. The only issue is thus

In the instant case, it is undisputed that the petitioner’s employer loaned

employee has spent the balance of the loan prior to receiving loan forgiveness, in the same fashion as the employee could use a normal bonus. Even if the

money, as they are illiquid assets. However, when a loan is forgiven in part, In-kind benefits like an apartment or a vehicle are not “an equivalent” of

part of which was ultimately forgiven. The employer forgave this loan in “bonus[]” under RSA 458-C:2, IV, we would reach the same result. that employer-provided housing and transportation do not constitute a compensation.” “bonus[]” as enumerated in the statute. However, even if we read Clark to hold This is a separate inquiry from whether an employer-provided benefit is a RSA 458-C:2, IV. In the Matter of Clark & Clark, 154 N.H. 420, 423 (2006). housing and transportation are not an unenumerated source of income under We have previously held that employer-provided in-kind benefits such as

ed. 2002). Here, the petitioner’s employer gave the petitioner a loan, at least

Webster’s Third New International Dictionary 252 (unabridged

defined as “money or an equivalent given in addition to the usual RSA 4 p. 5 58-C:2, IV (emphasis added). In the employment context, “bonus” is 5

this decision. amount that was forgiven and remand for further proceedings consistent with

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

arguments. Given this holding, we need not address the respondent’s remaining

“bonus[]” under RSA 4 p. 5 58-C:2, IV, we vacate the trial court’s findings as to the forgiven, or merely a portion. Having held that the loan forgiveness is a