2007-840, I/M/O JOSEPH GOULART, JR. AND MARCIA GOULART

The petitioner, Joseph Goulart, Jr., appeals from an

brief. to press. Errors may be reported by E-mail at the following address: Puckhaber Law Offices, PLLC, of Concord, for Marcia Goulart, filed no

orally), for Joseph Goulart, Jr. Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

IN THE MATTER OF JOSEPH GOULART, JR. AND MARCIA GOULART

editorial errors in order that corrections may be made before the opinion goes No. 2007-840 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Franklin 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 matter jurisdiction to enter [such] an [o]rder.” p. 2 pay his adult son’s college education expenses],” the court “lacked subject

“expressly repealed the [c]ourt’s authority to issue [an order obligating him to

accordingly.

as RSA 461-A:14, V). Specifically, he argues that because the legislature divorce that post-dates RSA 458:17, XI-a (repealed October 1, 2005; re-codified statutory authority to enforce a college education funding obligation in a

Define Obligation Regarding College Expenses is granted Superior Court (

On appeal, Joseph Goulart contends that the family division has no

This appeal followed.

books, fees, and reasonable spending money. expenses, including, but not limited to, tuition, room, board, Parenting Plan, and he is herewith ordered to do so. His Motion to order [him] to pay for [his son’s] college expenses.” After a hearing, the responsible for payment of [their son’s] college educational [his son’s] educational expenses as he agreed to in the Final The Court fully expects Joseph Goulart, Jr. to assist with

family division ruled: obligate him to pay his son’s college-related expenses. After a hearing, the regarding college expenses, and again maintained that the court could not In July 2007, Joseph Goulart filed a motion to define his obligation

to colleges until his senior year. son was entering his junior year of secondary school and would not be applying

Hollman, J.) deemed the issue not ripe because the Goularts’

as a matter of law,” and that the superior court did not “have the authority to and grants, but not student loans, that Joseph shall be of the stipulated parenting plan, arguing that the provision was “unenforceable In February 2006, Joseph Goulart filed a motion to strike paragraph I(1)

and Joseph Goulart was represented by prior counsel. approval by the court, Marcia Goulart was represented by her current counsel During the negotiation of the stipulated parenting plan and at the time of its

that after [their son] uses his best efforts to secure scholarships an adult child. Notwithstanding said prohibition, the parties agree the Court from ordering any parent to contribute to expenses for The parties are aware of the statutory provisions prohibiting 1. Post Secondary Education p. 3 3

history on several occasions. expenses on or after February 2, 2004. parent to contribute to an adult child’s college or other educational preclude the trial court from issuing new court orders requiring a

legislature intended retroactive or prospective application of the statute, stipulation an order. Goldman & Elliott, 151 N.H. at 772; see Donovan, 152 N.H. at 61.

order shall require” to be ambiguous, we have reviewed the statute’s legislative

[I]t is clear that, at a minimum, the legislature intended to

concluded that, with regard to the intent behind the statutory prohibition: deciding that the order was a support order, Donovan, 152 N.H. at 61-6 p. 3 3; see Forcier & Mueller, 152 N.H. at 466, we

stemmed only from the statutory language’s lack of clarity as to whether the Merrimack County) approval of the parties’ stipulated parenting plan made the Mueller, 152 N.H. 46 p. 3 3, 466 (2005). While our determination of ambiguity N.H. 770, 772 (2005); Donovan, 152 N.H. at 61-62; In the Matter of Forcier &

Having previously found the statutory language of “[n]o child support

contribution to college expenses is a support order”). Donovan, 152 N.H. 55, 66 (2005) (Dalianis, J., dissenting) (an “order for

(2007). Further, and for the purposes of this appeal only, we assume without

The superior court’s (prior to the implementation of the family division in

see Daine v. Daine, 157 N.H. 426, 427 (2008).

exclusive jurisdiction with regard to divorce matters. RSA 490-D:2, I, :5 judicial branch family division is operational, the legislature has granted it Gilmore & Gilmore, 148 N.H. 111, 112 (2002). In those counties where the unsustainable exercise of discretion or an error of law.” In the Matter of disturb the trial court’s rulings regarding child support absent an “We afford broad discretion to the trial court in divorce matters, and will not LeClair, 1 p. 3 37 N.H. 213, 217 (1993) (superseded by statute on other grounds). in divorce and separation cases are conferred entirely by statute.” LeClair v. “The court’s powers in custody, maintenance, and education of children

was dated November 2, 2005. RSA 458:17, XI-a, was effective February 2, 2004. The Goularts’ divorce decree The statute was effective October 1, 2005; its identically-worded predecessor,

beyond the completion of high school. adult child’s college expenses or other educational expenses No child support order shall require a parent to contribute to an

RSA 461-A:14, V (Supp. 2008) (the statutory prohibition) reads: education expenses; Goulart’s “waiver” could not confer subject matter

p. 4 plan or issue an order requiring Joseph Goulart to pay his adult child’s college

matter jurisdiction to either approve paragraph I(1) of the Goularts’ parenting provision.” Neither the superior court nor the family division had subject college, but that with the advice of counsel, he knowingly waived that

stated, “[Goulart] was aware of and informed as to the legislation concerning

scheduled after the effective date of the Amendment?

Joseph Goulart’s argument in his brief that the family division erred when it contribute to their adult child’s college expenses. Consequently, we agree with enforce a provision in a stipulated parenting plan that requires parents to 4

amendment and its prohibition became effective. scheduled for March 11, 2004. On February 4, 2004, however, the statutory

prior to the enactment of the Amendment but the hearing was jurisdiction over the subject matter. been rendered, the statutory amendment deprived the court of expenses derived solely from statute and no final judgment had

family division are deprived of subject matter jurisdiction to either approve or

University of New Hampshire. The father objected and a hearing was

adult child when the Motion for college contributions was filed

ordering the [father] to contribute to their adult son’s college

Accordingly, under the statutory amendment, the superior court and the

contrary, we follow our earlier dicta for the purposes of this appeal. Id. at 775 (quotation and brackets omitted). As neither party has argued to the then twenty-two-year-old son, who was enrolled as a full-time student at the child support, in which she sought contribution for college expenses for their August 2003, the mother filed a motion to bring forward and modify existing considering contribution of college educational expenses for an

Because the [mother’s] opportunity to have the trial court consider

We added the following dicta:

Id. (brackets omitted). We responded in the affirmative. Id.

contribute toward their children’s college expenses. Twelve years later, in Does the [statutory amendment] preclude the Court from

ruling with the following question for our resolution: at 771. The superior court then submitted an interlocutory transfer without

spite of the court’s statutory authority at that time to order divorced parents to college, trusting that the parents could discuss and agree upon that issue, in 1991. In its order, the superior court indicated that it made no order regarding In Goldman & Elliott, the parents of two minor children were divorced in parenting plan between two divorcing parties, both of whom are represented by

p. 5 statutory language with respect to the approval or enforcement of a stipulated

(citation, quotations, and brackets omitted)); fraud, undue influence, deceit, misrepresentation, or mutual mistake.” order it. As such, we respectfully urge the legislature to reexamine the otherwise would not simply because they thought a court would otherwise child’s college expenses, or parties agreeing to a support provision that they

property division in this case.

unless the complaining party shows that the distribution is invalid due to

a court unilaterally deciding who would fund, and to what extent, the adult

and remand for further proceedings consistent with this opinion. 5

stipulations, and whether any such reliance affected a fair and equitable justifiably relied upon the college expenses agreement in formulating their concerned. Consequently, questions may arise as to whether the parties changed circumstances. Such a property distribution will not be modified

legislature’s intent behind the prohibition was to cure the perceived ill of either properly defers to the statutory prohibition. We believe, however, that the

expenses. Consequently, we reverse that portion of the family division’s order

expenses, was apparently based upon a good-faith mutual mistake of law by all the spouses’ property and is not subject to judicial modification on account of

leave such consideration to the family division on remand. Finally, and given the assumptions made here, we note that our decision

of law in ordering Joseph Goulart to contribute to his adult son’s college Hampshire Practice, Family Law § 19.21, at 106 (3d ed. 2002). permanent stipulation by striking paragraph I(1), however, it erred as a matter see also 3A C. Douglas, New motion to define his obligation. As the family division should have modified the

erroneous due to the plan’s inclusion of the provision concerning college a divorce decree is a final distribution of a sum of money or a specific portion of Birmingham & Birmingham, 154 N.H. 51, 57 (2006) (“A property settlement in

Marcia Goulart is entitled to reopen the property settlement in this case, and of property between the parties.”). We voice no opinion here as to whether dissolution of a marriage is decreed, the court may order an equitable division

limited sense, we agree with the family division’s granting of Joseph Goulart’s

The superior court’s approval of the stipulated parenting plan, made

stipulation by striking paragraph I(1) of the stipulated parenting plan. In that college expenses. We read it as a motion, in essence, to modify the permanent Joseph Goulart filed his motion as one to define his obligation regarding

appeal, and may not be waived.” (citation omitted)). jurisdiction may be raised at any time during the proceeding, including on without subject matter jurisdiction is void. A challenge to subject matter Close v. Fisette, 14 p. 6 6 N.H. 480, 483 (2001) (“A decision rendered by a court jurisdiction where it did not exist; and any such orders were void. See, e.g., 6

construed so as to promote the policy stated in this section.” plan,” and of RSA 4 p. 6 61-A:2, II (Supp. 2008) which states: “This chapter shall be “[g]rant parents and courts the widest discretion in developing a parenting

parenting plan with the assistance of legal and mediation professionals” and to

policy of this state . . . to . . . [e]ncourage parents to develop their own 2008) (“Statement of Purpose”) which reads, in pertinent part, that “it is the child’s college expenses. We do so mindful of RSA 4 p. 6 61-A:2, I(c)-(d) (Supp. DALIANIS, DUGGAN and GALWAY, JJ., concurred.

mutually agreed that one or both will voluntarily contribute to their adult counsel and fully informed of the statutory prohibition, where the parties have