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2008-597, I/M/O MANON F. LYNN AND PAUL J. LYNN
insurance coverage unaffordable.
part-time. The mother also alleged that her part-time status will make health
Hampshire Technical Institute, and intended to change her employment to obligation because she had been accepted into a nursing program at New income. In April 2008, the mother filed a motion to modify her child support
represented a downward deviation from the guidelines because of her limited
insurance coverage and paying $300.00 per month in child support, which father. As of July 2006, the mother was responsible for providing health one resides with her mother, and the other two children reside with their
2005, and have four children from the marriage. One child resides on his own,
the Derry Family Division (
The record supports the following facts. The parties divorced in August
Manon F. Lynn (mother), to modify a child support order. We affirm.
Ryan, J.) granting the motion of the petitioner,
DUGGAN, J.
The respondent, Paul J. Lynn (father), appeals the order of
Paul J. Lynn, by brief, pro se. to press. Errors may be reported by E-mail at the following address:
Manon F. Lynn, by brief, pro se.
Opinion Issued: April 24, 2009 Submitted: February 18, 2009
page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF MANON F. LYNN AND PAUL J. LYNN
No. 2008-597 editorial errors in order that corrections may be made before the opinion goes Derry Family Division 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 may consider in determining if modification is warranted.
denied. This appeal followed.
school and become voluntarily underemployed is a factor that the trial court
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in the long term.” The father moved for reconsideration, which the court and unfair.
support obligations. in determining if modification is warranted). A parent’s decision to attend
whether modification is required. determining whether the financial situation of the parties has changed and in circumstances, the trial court may consider a variety of factors in 441-42 (Wis. Ct. App. 1993). Conn. L. Rev. 647, 672-73 (1997); see also Kelly v. Hougham, 504 N.W.2d 440, to improve her income and her marketability is in the best interest of all parties and Child Support and the “Voluntary Reduction of Income” Doctrine, 29 the child support guidelines. The trial court ruled that the mother’s “attempt change in circumstances that makes continuing the original order improper See Becker, Spousal residential responsibility for [one] child” warranted a downward deviation from entry of the last order of support, the moving party must show a substantial argues that the mother voluntarily reduced her income to circumvent her child 512, 514 (1979) (inability to pay and the reasons for such inability are factors underemployed and erred by not imputing income to her. The father also father argues that the trial court found that the mother is voluntarily support to step-children may warrant modification); Lafond v. Lafond, 119 N.H. Rohdenburg, 149 N.H. 276, 280 (2003) (remarriage and consequential duties of
See In the Matter of Rohdenburg &
Although RSA 458-C:7 does not specify what constitutes a substantial change
In the Matter of Adams & Houle, 156 N.H. 257, 258 (2007).
the special circumstances of the mother’s “low income” and “primary To obtain a modification of support obligations within three years of the
Matter of Donovan & Donovan, 152 N.H. 55, 59 (2005). unsustainable exercise of discretion in deviating from the guidelines. The evidence that the trial court’s exercise of discretion is unsustainable. In the them, we will set aside a modification order only if it clearly appears from the determine the parties’ respective needs and their respective abilities to meet Ford, 156 N.H. 609, 610 (2007). Because trial courts are in the best position to unsupported by the evidence or legally erroneous. In the Matter of Cole & We will affirm the findings and rulings of the trial court unless they are
in circumstances” that warranted modification. The trial court also found that trial court cited the mother’s “income while in school” as a “substantial change and the mother is no longer responsible for providing health insurance. The On appeal, the father argues that the trial court committed an
support order so that neither party is responsible for child support payments The trial court granted the mother’s request and modified the child specific written findings of special circumstances.
support obligation. RSA 458-C:3.
I(c). Thus, the trial court complied with the statutory requirements in making
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hearing for our review, parents’ income, it then uses the child support formula to calculate the child
and “economic consequences of the presence of . . . children,” RSA 458-C:5, “[s]ignificantly high or low income of the obligee or obligor,” RSA 458-C:5, I(b), adjustment from the child support guidelines. Included within this list is
circumstances” to warrant a downward deviation. adjustments to the application of the child support guidelines if it finds “special court erred in these findings. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, “primary residential responsibility for [one] child.” The trial court may make see Sup. Ct. R. 13(2), we cannot conclude that the trial Because the sparse record before us does not include a transcript of the incapacitated.” RSA 458-C:2, IV(a). Once the trial court determines the unemployed or underemployed, unless the parent is physically or mentally See RSA 458-C:5. amount a parent has earned in cases where the parent voluntarily becomes parent has earned). marketability is in the best interest of all parties in the long term.” difference between the amount the parent is earning and the amount the court ruled: “[The mother’s] attempt to improve her income and her school.” The trial court did not impute income to the mother. Instead, the trial underemployment. the trial court’s discretion not to impute income despite the voluntary 2008). RSA 458-C:5, I, lists “special circumstances” that would warrant an child support order based upon a parent’s decision to attend school, it is within See RSA 458-C:5 (Supp.
impute income is discretionary. to her. We reject this argument. Pursuant to the guidelines, whether to deviation of the guidelines—specifically, the mother’s “low income” and voluntarily underemployed, the trial court was then required to impute income The trial court went on to find special circumstances for a downward
gross income the difference between the amount a parent is earning and the (2006) (holding that trial court has discretion to impute less than the total
See In the Matter of Bazemore & Jack, 153 N.H. 351, 354 substantial change in circumstances to be “the [mother’s] income while in
discretion, may consider . . . .”). Thus, if the trial court decides to modify the
See RSA 458-C:2, IV(a) (“The court, in its
The father argues that because the trial court found that the mother was
is the following language: “The [trial] court, in its discretion, may consider as
court uses the parents’ gross income. Here, the trial court modified the child support order, finding the
RSA 458-C:3, II (Supp. 2008). Included within the definition of “gross income”
See RSA 458-C:2, I, IV, VI (Supp. 2008);
support award or once the trial court makes a finding for modification, the trial When calculating the child support amount, either in the original child transcript, we cannot say whether such circumstances existed here.
accordingly, deny a motion to modify or reduce child support). Without a
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case that would compel the trial court to impute income to such a parent (and,
sustainably exercised its discretion. assume that the record supported the trial court’s findings and that it
case, they do not require it. There might well be circumstances in a particular
misconstrued to entitle a parent to a reduced child support obligation
(father), did not provide a transcript as part of the record on appeal, we must
school. This is not so. While the applicable statutes allow the result in this whenever the parent has voluntarily reduced his or her income so as to attend
I write separately because I am concerned that this opinion could be
was no error of law here and that, because the respondent, Paul J. Lynn error of law, we must affirm its decision. Because the father failed to demonstrate that the trial court committed any order for legal errors only. See Atwood v. Owens, 142 N.H. 396, 397 (1997). supported its decision. specially. See Bean, 151 N.H. at 250. We review the trial court’s Without a transcript of the trial court hearing, we assume that the evidence Rix v. Kinderworks Corp., 136 N.H. 548, 553 (1992); see also Sup. Ct. R. 13. provide this court with a record sufficient to decide his issues on appeal. See N.H. 248, 250 (2004). As the appealing party, the father had the burden to guidelines. See Bean v. Red Oak Prop. Mgmt., 151 mother voluntarily reduced her income to circumvent the child support must assume that the evidence does not support the father’s argument that the
DALIANIS, J., concurring specially. I agree with the majority that there
BRODERICK, C.J., and HICKS, J., concurred; DALIANIS, J., concurred
Affirmed.
evidence supported result reached by trial court). For this same reason, we 250 (2004) (because of lack of a transcript, supreme court must assume