2008-743, I/M/O DAVID DUQUETTE AND AMANDA DUQUETTE

husband’s retirement, the wife would receive monthly pension distributions fully set forth.” Paragraph 5 of the QDRO, in turn, provided that, upon the Retirement System [NHRS] is contained in the [QDRO] incorporated herein as if

retirement fund, stated: “The parties’ intent in regards to the New Hampshire

parties’ divorce decree, as pertaining to distribution of the husband’s

the respondent, Amanda Duquette (wife), divorced in October 2007. The

The record supports the following facts. The petitioner (husband) and

support. We affirm. Qualified Domestic Relations Order (QDRO) and a modification of child Rochester Family Division (Ashley, J.) concerning the interpretation of a DUGGAN, J. The petitioner, David Duquette, appeals an order of the

for the respondent. Hanlon & Zubkus, of Rochester (Mark D. Hanlon on the brief and orally),

to press. Errors may be reported by E-mail at the following address: and orally), for the petitioner. Molan, Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF DAVID DUQUETTE AND AMANDA DUQUETTE

No. 2008-743 editorial errors in order that corrections may be made before the opinion goes Rochester Family Division Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 the May hearing. p. 2 father sharing residential responsibility. The trial court addressed the issue at

namely, that their son spent the majority of his time with her as opposed to his

increase in child support as a result of a substantial change of circumstances; wishes, and the parties’ agreement.” In March 2008, the wife sought an responsibility of [their son] according to a schedule consistent with [his]

Notwithstanding the foregoing, the

in the event of the Alternate Payee’s subsequent remarriage.

option shall be borne solely by the Alternate Payee. renunciation of all retirement benefits. in paragraph 8 pertained only to the wife’s survivor benefits, and was not a

based upon the special circumstances of “shared residential responsibility.” wife. That amount represented a downward adjustment from the guidelines requirements of RSA 458-C:7, I (Supp. 2008) by establishing a substantial provided that the husband would pay $198 per week in child support to the In its written order, the trial court found that the wife had satisfied the

shall retain the right under RSA 100-A:13 to terminate said Option Alternate Payee. Notwithstanding the foregoing, the Participant Allowance. Any cost to the option shall be borne solely by the pop-up Joint Survivor Retirement Allowance. Any cost to the

approving the revised QDRO, and ruling that the requirement of renunciation

follows to obtain NHRS approval:

and parenting plan concerning the parties’ sixteen-year-old son, which The original divorce decree also incorporated a Uniform Support Order

under Option 4B, 50% pop-up Joint Survivor Retirement shall be designated as the sole beneficiary under Option 4B, 50%

hearing in May. Following the hearing, the trial court issued an order forward and approve the alternate QDRO language. The trial court held a paragraph 8 was not enforceable, the husband amended the paragraph as (Emphasis added.) In January 2008, the husband filed a motion to bring

II(b) in the event of the Alternate Payee’s subsequent remarriage. required to execute a renunciation form pursuant to RSA 100-A:13

Alternate Payee [wife] shall be designated as the sole beneficiary At the time of the Participant’s retirement, the Alternate Payee

After the NHRS informed the parties that the QDRO language in

At the time of the Participant’s [husband’s] retirement, the

Paragraph 8 of the original QDRO also provided for survivor benefits, stating: equal to fifty percent of the husband’s maximum retirement allowance. of the QDRO.

p. 3 alone to divine their intent. We therefore turn to the trial court’s interpretation

the parties’ intent when signing the QDRO, but rather looked to the QDRO such, the trial court correctly refused to entertain parol evidence concerning original QDRO as the sole source of their intent concerning the NHRS. As

statute,

argues, citing

regards to the [NHRS] is contained in the [QDRO] incorporated herein as if fully QDRO in mediation. In particular, he argues that the renunciation provision in upon the member’s death. See RSA 100-A:11, II(e) (Supp. 2008). In this case, merited an increase in child support payments. We address each in turn. agreement of the parties. see RSA 100-A:13, III, retirement allowance annuity payments cease Generally, if no alternative allowance option is elected under the NHRS

erroneous.

parol evidence is generally inadmissible to vary or contradict a writing, he

(2006). In this case, the parties’ divorce decree stated: “The parties’ intent in evidence concerning the parties’ intent when agreeing to the divorce decree and Behrens v. S.P. Constr. Co., 153 N.H. 498, 504 funds; and (2) erred in finding that a substantial change of circumstances consider whether the writing is a total integration and completely expresses the The first step in determining whether parol evidence is admissible is to

rulings of the trial court unless they are unsupported by the evidence or legally reflect the actual agreement reached by the parties.” guideline amount of $373 per week. This appeal followed. should have been admitted here “to establish that the writing itself does not

Grabowski v. Grabowski, 120 N.H. 744, 748 (1980), that it

opposed to the survivor death benefits alone. Although he recognizes that

The husband argues that the trial court should have admitted parol the parties’ intent as to the renunciation of the wife’s interest in his retirement

In the Matter of Cole & Ford, 156 N.H. 609, 610 (2007).

evidence and misconstrued applicable statutes. We will affirm the findings and trial court therefore increased the husband’s child support obligation to the concerning his retirement fund because the court refused to entertain parol original downward adjustment of child support was no longer justified. The The husband argues that the trial court misinterpreted the parties’ intent responsibility, and, in the absence of actual shared responsibility, that the

On appeal, the husband argues that the trial court: (1) misinterpreted

found that the divorce decree required the parties to share residential change of circumstances since the parties’ divorce. Specifically, the trial court conclusion, we find no error.

p. 4 allowing the husband to do so. Because the record supports the trial court’s to require the wife to terminate the option upon remarriage, as opposed to survivor benefits alone. The only effect of the amended language, therefore, is

language of the original QDRO.

weekly child support payments under the Uniform Support Order. Because

A:13, II(b), it is of no consequence in this case. survivor death benefits. His argument is belied, however, by the plain does in fact allow a beneficiary to renounce all future rights under RSA 100the provision, however, because even if the husband is correct and the statute

termination of her survivor benefits. The parties’ clear intent, as expressed in written, gave the husband the right to terminate the wife to renounce all rights when the original agreement provided only for the II(b), the husband could not unilaterally amend the original QDRO to force the The husband next argues that the trial court erred in adjusting his

survivor benefit option under RSA 100-A:13, II(a), divesting her of any survivor her entire interest in the retirement plan, as opposed to her interest solely in requiring the wife to renounce her option under RSA 100-A:13, II(b), applies to RSA 100-A:13, II(b) pertains only to survivor benefits. We need not interpret A:13, II(b). The husband argues that paragraph 8 of the amended QDRO,

remarriage and renunciation of benefits is paragraph 8, which, as originally Regardless of the permissible scope of renunciation under RSA 100-A:13,

paragraph 8 of the original QDRO allowed the husband to terminate her

was based upon the erroneous opinion of the NHRS that renunciation under the wife, should she remarry, to renounce any future benefits under RSA 100- all future benefits. He argues that the trial court’s conclusion to the contrary the wife remarried. He argues, however, that the revised provision applies to

As the trial court noted, the only portion of the QDRO mentioning

death under RSA 100-A:13, III, Option 4. If, however, she were to remarry, to remain unmarried, she would receive survivor benefits payable after his benefits disbursed prior to the husband’s death. Under that option, were she unenforceable. He therefore amended paragraph 8 to place the burden upon 100-A:13, II(a) until he was actually retired, making the original agreement informed the husband that he could not exercise any authority under RSA After the parties agreed to the original QDRO, however, the NHRS

a premium for a survivor benefit option out of her own portion of annuity to ensure continued benefits after the husband’s death, the wife agreed to pay payments. The trial court’s finding of a material change of circumstances is

p. 5 change of circumstances meriting a return to the guideline child support

his father, the arrangement does not contradict the Uniform Support Order. Thus, he argues, if their son does not voluntarily spend half of his time with would be shared “according to a schedule consistent with [their son’s] wishes.” trial court concluded that she had met her burden of establishing a substantial parties agree that the wife now bears primary residential responsibility, the share residential responsibility and its appurtenant expenses. Because both

agreement because the agreement provided that residential responsibility

to a downward departure from the support guidelines based upon an intent to

the unequal custody arrangement is nonetheless consistent with the parties’

son would spend more time with his father. In that regard, the parties agreed Support Order clearly states that the parties’ intent and hope was that their We, like the trial court, reject the husband’s argument. The Uniform amount of child support.” that a child support award calculated under the guidelines is the correct

the amount of child support awards.” C:4, I (Supp. 2008). The guidelines “establish a uniform system to determine support cases, including . . . any order modifying a support order.” RSA 458bore primary residential responsibility for their son. The husband argues that the parties’ son. That agreement, however, never came to fruition, and the wife “substantial change of circumstances”). upon the special circumstances of an agreement to share residential custody of Here, the trial court originally allowed a downward adjustment based a substantial change of circumstances.

change of circumstances of the parties that makes continuing the original N.H. 498, 501 (2007) (quotation omitted). “There is a rebuttable presumption entry of the last order of support, the moving party must show a substantial In the Matter of Carr & Edmunds, 156

New Hampshire’s child support guidelines “shall be applied in all child ruling was clearly untenable or unreasonable to the prejudice of his case.

2008) (parties may apply for modification every three years or when there is a discretion is unsustainable. Id. at 259; see RSA 458-C:7, I (Supp. order only if it clearly appears on the evidence that the trial court’s exercise of 258 (2007). A modification should not be granted in the absence of evidence of

To obtain a modification of support obligations within three years of the

G2003B, LLC v. Town of Weare, 153 N.H. 725, 729 (2006).

exercise of discretion, the husband bears the burden of demonstrating that the 55, 59 (2005). To show that the trial court’s ruling was an unsustainable

and their respective abilities to meet them, we will set aside a modification trial courts are in the best position to determine the parties’ respective needs p. 6 6

BRODERICK, C.J.