2008-012 & 2008-548, I/M/O JANICE JOHNSON AND MARK JOHNSON

in November 1993. The final decree of divorce “approved and incorporated” parents of three daughters born in 1981, 1984 and 1989. The couple divorced

to modify child support. We affirm both orders. terminated his child support obligation and dismissed the wife’s cross-petition

The record supports the following. Janice and Mark Johnson are the

denied the husband’s petition to terminate child support; but (2) later successive orders of the Superior Court (Groff, J.; Love, M.) that: (1) first Mark Johnson (husband) and Janice Johnson (wife), respectively, appeal BRODERICK, C.J. In these two related, but not consolidated, cases,

and orally), for Mark Johnson. Gottesman & Hollis, P.A., of Nashua (Anna Barbara Hantz on the briefs

to press. Errors may be reported by E-mail at the following address: Janice Johnson, by brief and orally, pro se.

IN THE MATTER OF JANICE JOHNSON AND MARK JOHNSON page is: http://www.courts.state.nh.us/supreme.

2008-548 Nos. 2008-012 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district 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 selection and financing of the child’s post secondary education.

p. 2 residence. . . . The [husband] shall have a right to participate in and reasonable travel to and from college to the student’s principal well as tuition, room, board, books, fees, reasonable allowances

expenses to visit college and other related costs and expenses as

expenses for any of the children. further obligation regarding assistance for the college-related

start up expenses such as SAT fees, college application fees, travel education expenses shall include but are not limited to college occur first. For the purpose of this Permanent Stipulation, college

college student. On the other hand, the [husband] shall have no

bachelor’s degree and not be beyond the age of 24 which ever shall

full-time college student so long as the child remains a full-time required to pay child support for any child that is enrolled as a appropriate and reasonable. Accordingly, the [husband] shall be 2

daughter’s college expenses, the Trial Court (

parties’ obligation shall not exceed beyond the acquisition of a

Upon due consideration, I find the [wife’s] request to be fair,

appeal. The husband unsuccessfully moved for reconsideration and we declined his

to determine the husband’s specific contribution towards their oldest

and room and board, to the best of their ability at that time. The college education of their minor children, including both tuition expenses, both the [wife] and the [husband] shall contribute to the

child support as long as a child is a full-time college student. related expenses. Rather, she is requesting the continuation of The [wife] is not requesting any specific assistance for college-

In February 1999, in response to the wife’s petition requesting the court (18) or graduation from high school, whichever occurs later.

made their own reasonable efforts regarding contribution to

EXPENSES”) of the same stipulation provides, in pertinent part, as follows:

children shall continue until . . . the obtainment of age eighteen

of a degree from that institution, provided that the children have accredited college or university having as an objective the attaining Therefore, at such time as their children shall matriculate to an

Paragraph 13.B (“PRIVATE SCHOOLS/POST SECONDARY EDUCATION

The [husband’s] obligation for support of the parties’ minor

states in pertinent part: their permanent stipulation, including Paragraph 5.C (“SUPPORT”), which p. 3 We first turn to the husband’s appeal.

semester. The wife unsuccessfully moved for reconsideration, and appealed. semester’s expenses for the youngest daughter, not to exceed $3,000 per husband’s future college contribution would be fifty percent of each future

and dismissed the wife’s cross-petition. The court further ordered that the

daughter’s freshman year at what he had already paid through March 2008, obligation, as of April 1, 2008, fixed his college contribution for their youngest 2008, the trial court ordered the termination of the husband’s child support

was moot because it requested modification of a non-existent order. In June in full.

husband’s motion for reconsideration was denied, and he appealed. towards college involves a substantive right.” (Emphasis omitted.) The

Groff

and that the “continuance of child support as the [husband’s] contribution

the petition and cross-petition, the wife argued that the only existing order was place payable through the Division. Arrearage payments will conducted on offers of proof, the Trial Court (citing an increase in the husband’s income. During an evidentiary hearing on will continue to be made through the wage assignment already in to RSA 458-C:7 (Supp. 2008), the wife cross-petitioned to modify child support, remains a full-time college student. Said child support payments

implement the [husband’s] obligation to contribute towards college expenses”

and soon to graduate from high school. In September 2007, after a hearing second daughter was in graduate school, and the youngest child was eighteen pending, the husband petitioned to modify his college contribution. Pursuant that is enrolled as a full-time college student so long as the child obligation. The parties’ oldest daughter had graduated from college, their In January 2008, while his appeal of the September 2007 order was

support [any] earlier than January 1, 2004.

(2005), the court held that the child support order “was specifically intended to husband’s petition. Citing In the Matter of Donovan & Donovan, 152 N.H. 55

the [husband] shall be required to pay child support for any child In May 2007, the husband petitioned to terminate his child support Guidelines. In accordance with the [February 1999 court order], children in accordance with the New Hampshire Child Support

B. Both parties[ ] agree not to seek a modification of child

week as child support beginning April 1, 2001 for the parties’ A. [The husband] shall pay to the [wife] the sum of $222.00 per

Support,” the parties’ stipulated as follows: modification to their permanent stipulation. In the paragraph entitled “Child In May 2001, the Trial Court (, J.) approved the parties’ proposed pertinent part, as follows: p. 4 time of the 1999 and 2001 orders, however, RSA 458:35-c (1992) read, in

their permanent stipulation that fixed child support at $222 per week. At the action. the child support obligation terminates without further legal

child support “for any child that is enrolled as a full-time college student so

apply in this case.

remained a full-time college student, and approved the parties’ modification to 4 of his daughters enrolled as full-time college students for so long as the child or reach the age of 18 years, whichever is later . . . at which time and 2001 trial court orders required the husband to pay child support for any

1999 and 2001 orders specified that the husband would be obligated to pay

later.” The current statutory language cited by the husband, however, does not

is provided in the order shall terminate their high school education (2004) (repealed October 1, 2005; recodified as RSA 461-A:14, IV). The 1999 stated in the order until all dependent children for whom support

Consequently, pursuant to the governing statute at the time, both the

effective May 19, 2004. (Emphasis added.) The underlined language was removed from the statute, when the child turns eighteen or graduates from high school, whichever is including all educational obligations, ‘terminates without further legal action’ that, “[p]ursuant to RSA 461-A:14, IV, a parent’s child support obligation,

2008), the duration of child support obligations was governed by RSA 458:35-c support obligation stated in the order for support shall remain as was improper and unfair.” modify support orders specifies differently, the amount of a child Unless the court or other body empowered by law to issue and

of discretion or an error of law.”

petition to terminate the previously-ordered child support, the husband argues

Prior to the October 1, 2005 effective date of RSA 461-A:14, IV (Supp. party challenging the court’s order has the burden of showing that the order

trial court’s rulings regarding child support absent an unsustainable exercise

In his appeal of the trial court’s September 2007 order denying his

112 (2002) (quotation omitted).

broad discretion to the trial court in divorce matters, and will not disturb the in divorce and separation cases are conferred entirely by statute. We afford “The court’s powers in custody, maintenance, and education of children

p. 5 daughter is attending college. to a more limited definition as to what constitutes reasonable educational child support payment into an exclusive college contribution payment, subject daughter remained a full-time college student, the order did not transform his

educational expenses are paid only during the months that his youngest

court ordered child support to continue so long as the husband’s youngest

either directly to the college or to the student; and (4) his payments for age of eighteen”; (3) his payments for college room and board must be paid general support and maintenance which terminates when a child reaches the amount of the husband’s weekly child support payment. Although the trial parties’ proposed modification to their permanent stipulation, and fixed the to pay college-related expenses. The May 2001 court order approved the

or graduated from high school.

expenses, entertainment, personal expenses and clothing “as these constitute

obligation to provide child support for his daughters when they turned eighteen

other directly related fees; (2) he is not responsible for transportation, medical contribution is limited to sharing the costs of tuition, books, room, board, and “college contribution.” Specifically, he contends that: (1) his college that the husband continue to pay child support for so long as any child was

the change in legislation. not apply to post-enactment modifications of orders that were issued prior to 461-A:14, IV does not operate to automatically terminate the husband’s

part of the trial court in determining the amount and manner of payment of his We find no merit in his arguments. The February 1999 order mandated

2005; recodified as RSA 461-A:14, V), had prospective application only, and did affects substantive right of post-divorce financial support). Therefore, RSA indication of legislative intent for retrospective application and where statute children’s college education; statute applied prospectively in absence of clear

The husband’s remaining arguments all relate to perceived errors on the

completion of high school.”) (effective February 2, 2004; repealed October 1, adult child’s college expenses or other educational expenses beyond the 458:17, XI-a (“No child support order shall require a parent to contribute to an require vacating a pre-existing order that requires parents to contribute to their legislation. See Donovan & Donovan, 152 N.H. at 61-64 (new statute does not enactment modifications of orders that were issued prior to the change in RSA 461-A:14, IV, has prospective application only, and does not apply to postreasons, it follows that the amendment to RSA 458:35-c, later recodified as Matter of Forcier & Mueller, 152 N.H. 463, 466 (2005). For the identical

fixed at $222 per week as of April 2001. We have previously held that RSA long as the child remains a full-time college student,” and that amount was education of their minor children . . . to the best of their ability at that time.”

p. 6 their 1993 divorce decree calling for them to “contribute to the college

essentially revoking the 1999 and 2001 orders and “reinstating” the portion of contribution. Finally, both parties contend that the trial court erred by characterized the payment, not as child support, but as the husband’s college

stipulation concerning child support, both the trial court and the husband

the May 2001 order approved a specific modification to the permanent February 1999 order provided that the husband would pay child support, and terms of the divorce decree” appears to be unwarranted. Further, while the

child support and fix his obligation for college expenses in accordance with the

decision in his daughter’s post-secondary education, and modify it to comport with our specifically, that the trial court reexamine his obligation to contribute toward warrant a termination of child support. We disagree.

court’s characterization of the husband’s petition as a “request to terminate contribution be modified to comport with applicable state law. Thus, the trial 1993.” The petition itself, however, specifically requests that his college

we construe the husband’s petition in accordance with the relief it requested; 6 because the husband failed to show a substantial change in circumstances to because it failed to allege sufficient facts to warrant such a modification, and She further argues that the trial court erred in granting the husband’s petition support. It further ordered the husband to pay that amount for any of his

determined by the terms of the parties’ decree of divorce dated November 22,

petitions and arguments, or their characterization by the trial court. Instead,

provision concerning college expenses) in derogation of statutes and case law. oldest daughter’s college expenses, the trial court fixed the amount of child determination with regard to the husband’s specific contribution towards their In February 1999, in response to the wife’s petition requesting a petition as one requesting that his “contribution towards college [be]

In the Matter of Jacobson & Tierney, 150 N.H. 513 (2004).

We need not further parse the language of the parties’ competing

court erred because it modified a “non-existent” order (the 1993 divorce decree unsustainable exercise of discretion. Specifically, she argues that the trial the wife essentially contends that the trial court’s actions constituted an 2008 order and the parties’ briefs. The order characterizes the husband’s

petition to modify his college contribution and dismissing her cross-petition, At the outset, we note the following with regard to the trial court’s June

In her appeal of the trial court’s June 2008 order granting the husband’s

husband’s petition to terminate child support. 148 N.H. at 114. Consequently, we affirm the September 2007 denial of the school.”). p. 7 expenses or other educational expenses beyond the completion of high support order shall require a parent to contribute to an adult child’s college child support obligation. exercised its discretion to dismiss the wife’s cross-petition to modify that same terminated the husband’s child support obligation, the trial court properly

of the educational expenses for college attendance [and] improperly

impermissibly relied upon the 2004 enactment of RSA 458:17, XI-a (“No child

child support obligation was an unsustainable exercise of discretion. Having

statute’s effective date).

child support . . . in an amount without regard to the actual costs

court’s decision to terminate the husband’s child support payments

In sum, we cannot say that the trial court’s termination of the husband’s

(RSA 458:17, XI-a not applicable retroactively to divorce orders issued before

See, e.g., In the Matter of Cole & Ford, 156 N.H. 609, 612 (2007)

funding a parent’s college contribution because the order directs

Further, and contrary to the wife’s contention, we see no evidence that the trial ruling of law that cited our decision in circumstances to warrant the modification or termination of child support. failed either to allege sufficient facts or to show a substantial change in Consequently, we disagree with the wife’s argument that the husband’s petition continuance of the decree would have been improper and unfair”).

The child support guidelines formula is an incorrect method of

pertinent part:

In its 2008 order, the trial court granted the husband’s request for a conflict with our decisions at that time. paid via the mechanism of child support. Such a conflation was not clearly in ordering that the husband’s contribution toward college expenses would be burden of “proving a substantial change in circumstances such that the (1995) (to obtain modification of parties’ support obligations, petitioner has contribution to college expenses. Cf. Snyder v. Clifton, 139 N.H. 549, 551 the husband was entitled to petition the trial court in 2008 to modify his thereof, unforeseen by either the parties or the trial court in 1999, we believe Tierney, 150 N.H. at 517. Given this change in the law, or at least clarification expenses are not synonymous and are not to be conflated. Jacobson & In 2004, however, we made clear that child support and educational

the trial court had conflated the college contribution with child support by three daughters for so long as she was a full-time college student. Essentially, p. 8 EDUCATION EXPENSES”) of the same stipulation. it did not modify Paragraph 13.B (“PRIVATE SCHOOLS/POST SECONDARY modified only the child support provision of their 1993 permanent stipulation;

toward the college education of their daughters. Further, the 2001 order

Within this context, trial courts are in the best position to determine the

arguments. at that time.” We are not persuaded that the court erred by doing so.

it did not amend the requirement in the divorce decree that the wife contribute 8 addressed the husband’s obligation to contribute toward the college expenses, expenses. SUPPORT FOR CHILDREN IN COLLEGE.” Moreover, while the 1999 order

rulings of law, based upon the testimony and exhibits presented at the hearing.

argument, we disagree with both the reinstatement and statutory preclusion children, including both tuition and room and board, to the best of their ability

the trial court retained the authority to order contributions toward college Indeed, that portion of the order was entitled “COLLEGE EXPENSES—CHILD the 2004 enactment of RSA 458:17, XI-a (recodified as RSA 461-A:14, V), and parties remained obligated to contribute to college expenses in 2001, prior to The trial court made its decision, including its findings of fact and

husband’s college contribution from the mechanism of child support payments. within its discretion to examine the situation anew, and to distinguish the A:14, V (Supp. 2008). Although the wife has not made the latter statutory provision that the parties “shall contribute to the college education of their . . . viable and the court was precluded from modifying it, pursuant to RSA 461- trial court took guidance from the divorce decree’s original college contribution the child support obligation, the college contribution provision was no longer in order to provide for an equitable college contribution from each party, the

See Cole & Ford, 156 N.H. at 612. In examining the situation anew

to satisfy the husband’s obligation to contribute toward college expenses. Thus, under the facts of this case, we conclude that in substance, both

terminated the husband’s child support obligation, we believe it was also

“replaced” the college contribution provision of the 1993 divorce decree with

It is clear that the trial court intended the child support ordered in 1999

version of RSA 458:35-c then in effect. Consequently, and once the trial court completing their secondary school education was grounded solely in the continue beyond either his daughters’ reaching the age of eighteen years or time.” The husband further argues that once the trial court, in 1999, college education of their minor children . . . to the best of their ability at that portion of their 1993 divorce decree calling for them to “contribute to the Both parties contend that the trial court erred in “reinstating” that

and 2001 to order that the husband’s obligation to pay child support would As previously discussed, the trial court’s discretionary authority in 1 p. 9 999 9

DUGGAN and HICKS, JJ., concurred.

petition to modify child support. terminating his child support obligation, and dismissing the wife’s crosscourt order granting the husband’s petition to modify his college contribution, Lambert, 147 N.H. 2 p. 9 95, 296 (2001). Accordingly, we affirm the June 2008 trial court’s decision was an unsustainable exercise of discretion. See State v. and she has consequently failed to meet her burden of showing that the trial We fail to see any unfair prejudice to the wife by the trial court’s action,

sufficient to support the result reached by the trial court.”). (“[A]bsent a transcript of the hearing, we must assume that the evidence was See Sup. Ct. R. 15(3); Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) the trial court’s decision was “contrary to the weight of the evidence presented.” has not provided an adequate record for this court to review her allegation that court that she wished to proceed without preparation of the transcript, the wife Matter of Jerome & Jerome, 150 N.H. 626, 628 (2004). Having notified this parties’ respective needs and their respective abilities to meet them. See In the