2009-520, In the Matter of Roberta L. (Pierce) Scott and James P. Pierce

Massachusetts decree, which expressly incorporated their separation daughter born in 1986. In April 1989, they divorced pursuant to a Massachusetts in 1982 and had two children, a son born in 1983 and a

The record reveals the following facts. The parties married in

I. Facts

remand. respondent, James P. Pierce (Husband). We affirm in part, vacate in part and Superior Court (Smukler, J.) denying her motion for certain payments from the order recommended by a Marital Master (Dalpra, M.) and approved by the DALIANIS, J. The petitioner, Roberta L. (Pierce) Scott (Wife), appeals an

brief and orally), for the respondent. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

to press. Errors may be reported by E-mail at the following address: and orally), for the petitioner. Wiggin & Nourie, P.A., of Manchester (Andrea Q. Labonte on the brief

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF ROBERTA L. (PIERCE) SCOTT AND JAMES P. PIERCE

No. 2009-520 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 ___________________________

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 occurred first. p. 2 college, no longer lived with Wife, or reached the age of twenty-three, whichever

toward the $9,360 arrearage he owed to the travel/college escrow account. The

school. In that case, emancipation occurred when the child graduated from Hampshire. order. Thereafter, she registered the Massachusetts decree and orders in New 2

2003 order also required Husband to pay Wife an additional $40 per week

education account for the children.

unless the child entered college in the September after graduating from high stipulation, emancipation occurred when the child reached age twenty-one, because more than three years had elapsed since the previous child support be emancipated at age twenty-one. By contrast, pursuant to the 1997

contribute $3,000 per year to the college expenses of the parties’ son. The rights thereunder. the $40 intended for the travel/college escrow fund, and ordering that he Massachusetts law governed the interpretation of their agreement and their amount of Husband’s child support for the two children to $187 per week, less shall bear” for their children’s college expenses. The parties agreed that The trial court granted Wife’s petition in October 2003, increasing the from the escrow account by March 30 each year would be deposited in a college stipulation allowed Wife to relocate to California. Any amount not expended See RSA 546-B:47 (2007). in an escrow account for Husband’s use to visit the children, with whom the

amount of child support under New Hampshire’s child support guidelines age eighteen, unless the child attended college, in which case the child would New Hampshire asking the trial court, among other things, to review the In 2002, after Husband moved to New Hampshire, Wife filed a petition in

Massachusetts court approved the parties’ 1997 stipulation. stipulation did not alter the college expense provision of the original decree. A

See Mass. Gen. Laws Ann. ch. 208, § 28 (West 2007). The would meet in the future to discuss “the financial responsibility each of them

differently: $73 would be for child support, and $40 per week would be placed

were “emancipated.” Under the original decree, each child was emancipated at support obligation by redefining the circumstances under which the children Additionally, the parties agreed to modify the duration of Husband’s child

“should receive the best college education available to them” and that they decree. In their original stipulation, the parties agreed that their children insurance premiums until the children were “emancipated,” as defined by the would remain $113 per week, but that this amount would be allocated divorce decree. They stipulated that Husband’s total child support obligation In April 1997, the parties agreed to modify certain aspects of their

pay child support in the amount of $98 per week plus $15 per week for health agreement. Under the decree, as modified in October 1989, Husband was to premiums between February 2003 and May 2008.

p. 3 obligation was unenforceable after February 2, 2004. the son’s college expenses, it ruled that under New Hampshire law, this

school education, whichever is later, of discretion or an error of law.” trial court’s rulings regarding child support absent an unsustainable exercise broad discretion to the trial court in divorce matters, and will not disturb the 3

daughter’s college expenses; and (4) $4,140 plus interest for health insurance plus interest for the son’s college expenses; (3) a reasonable amount for the 2003 order to the date of the daughter’s graduation from college; (2) $12,000

Husband to reimburse Wife for the amounts she claimed. This appeal followed. Husband had not complied with its 2003 order by paying $3,000 per year for has the burden of showing that the order was improper and unfair.”

child support terminates when a child turns eighteen or ends his or her high

in divorce and separation cases are conferred entirely by statute. We afford

$9,760 plus interest in arrearages owed to that account from the date of the (quotation omitted). was in college, the court reasoned that it would be inequitable to require Id. appeal. With respect to Wife’s cross-motion, although the court found that 555, 558 (2009) (quotation omitted). “The party challenging the court’s order

court concluded, he should not have paid. Because under New Hampshire law, less than the amount of child support he paid through May 2008,” which, the arrearage for the son’s college expenses, “any alleged arrearage is significantly “The court’s powers in custody, maintenance, and education of children

II. Standard of Review

travel/college escrow account as of the date of the trial court’s 2003 order and order Husband to pay her: (1) $9,360 plus interest in arrearages owed to the daughter had graduated from college. Wife cross-moved, asking the court to because Husband continued to pay child support for the daughter while she obligation. Wife does not challenge this part of the trial court’s order on see RSA 461-A:14, IV (Supp. 2009), and

effective October 1, 2005). The court also found that even if Husband owed an (2004) (effective February 2, 2004; repealed and recodified as RSA 461-A:14, V,

obligations on the ground that his son was older than twenty-three, and his The trial court granted Husband’s motion, terminating his child support

about the daughter’s plans.

In June 2008, Husband filed a petition to terminate his child support

daughter’s eventual college expenses, but required Wife to consult with him 2003 order did not address whether Husband had to contribute to the flawed under the Uniform Interstate Family Support Act (UIFSA).

child support enforcement.” Morgan ed., construction, but also upon the official comments to UIFSA.

when more than one state is involved in these proceedings.” Annotation, again in 2008. Uniform State Laws has amended the uniform act twice, once in 2001, and

1997, effective January 1, 1998. exceeded the travel/college escrow account arrearages, the court ruled that model act for guidance on the intended meaning of the election statute); do so. Because the amount of child support Husband paid for the daughter Estate N.H. 637, 6 p. 4 43 (2006) (holding that we will look to the official comments of the the parties’ daughter until she graduated from college, he was not obligated to 745 N.W.2d 924, 928 (Neb. Ct. App. 2008); cf. Bendetson v. Killarney, Inc., 154 had adopted [UIFSA] (1996) as a requirement for receipt of federal funds for See Wills v. Wills, To interpret UIFSA, we rely not only upon our ordinary rules of statutory

Fam. L.Q. 75, 83 (2008). modifying child and spousal support orders and for determining parentage See Symposium, Uniform Interstate Family Support Act, p. 4 43

Hampshire adopted UIFSA, the National Conference of Commissioners on interstate child support enforcement.” Comment, See Laws 1997, 263:32. Since New 16 No. p. 4 4 Divorce Litig. 60, 60 (April 2004). New Hampshire enacted UIFSA in “Nonmodifiable Aspect” of a Child Support Order Under Section 611 of UIFSA, arrearages because it believed that although Husband paid child support for The Date of Termination as a

A.L.R. 5th 1, 1 (2001). “[B]y 1998, all 50 states and the District of Columbia Construction and Application of Uniform Interstate Family Support Act, 90

323, 323 (2007). UIFSA “governs the procedure for establishing, enforcing, and Changes: The 2001 Amendments to UIFSA, 20 J. Am. Acad. Matrim. Lawyers

Div. 2007). It was intended to “bring greater efficiency to the process of revised in 1996.” Marshak v. Weser, 915 A.2d 613, 615 (N.J. Super. Ct. App. Commissioners on Uniform State Laws at the behest of Congress in 1992 and graduation from college, plus interest. The trial court declined to order these “UIFSA is a model act adopted by the National Conference of $9,760 from the date of the court’s 2003 order to the date of the daughter’s contends are equal to $9,360 until the date of the court’s 2003 order and 1. UIFSA In General

5 p. 4 46-B (2007). We agree.

Husband to pay the arrearages to the travel/college escrow account, which she Wife first argues that the trial court erred when it declined to order

A. Travel/College Escrow Account Arrearages

III. Discussion original support order. RSA 5 p. 4 46-B:1, IX.

p. 5 respondent is subject to personal jurisdiction here. 5

support order. B:49, III (emphasis added). The “issuing state” is the state that issued the existing child support order; and (3) a proceeding to modify an existing child

petitioner seeking modification is not a resident of this state; and (3) the enforcement. Peters,

order that may not be modified under the law of the issuing state.” RSA 546when there is no prior child support order; (2) a proceeding to enforce an New Hampshire court, however, “may not modify any aspect of a child support

obligor no longer reside in the state that issued the original order; (2) the rules for three types of proceedings within the context of child support registered here and the court finds that: (1) the child, the obligee and the issued in another state when the original child support order has been Under UIFSA, a New Hampshire court may modify a child support order sought to be advanced by the statutory scheme. :46 (enforcing order), :47-:52 (modifying order). statute as a whole. Id. at 106-07; see RSA 546-B:31-:38 (establishing order), :39-

These proceedings are: (1) a proceeding to establish a child support order interpretation. Towards a Better Solution, 15 New Eng. J. Int’l & Comp. L. 91, 106 (2009).

UIFSA consists of nine articles that supply procedural and jurisdictional

statute considered as a whole. intent and to interpret statutory language in light of the policy or purpose the final arbiters of the legislature’s intent as expressed in the words of the Id. This enables us to better discern the legislature’s consider words and phrases in isolation, but rather within the context of the overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not

Id. We construe all parts of a statute together to effectuate its

the statutory language is ambiguous or subject to more than one reasonable to include. Id. We will review legislative history, however, to aid our analysis if legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the language according to its plain and ordinary meaning. Id. We interpret first look to the language of the statute itself, and, if possible, construe that

Hampshire statute). Under our ordinary rules of statutory construction, we are official comments of Model Penal Code for guidance to interpret analogous New Hampshire statute); State v. Donohue, 150 N.H. 180, 183 (2003) (reviewing model act as well as to similar statutes from other states to interpret New New Hampshire statute is nearly identical to that of model act, we will look to of Gordon-Couture v. Brown, 152 N.H. 2 p. 6 65, 273 (2005) (because language of tribunal of this State.

precludes imposition of a further obligation of support by a

modify the original order to terminate child support at age eighteen. new state ends the support obligation at age eighteen, the new state may not support order ordered child support through age twenty-one, and the law of the

original order may be changed.”

and replaced by a new controlling order. . . , the amendments state, although the initial child support order “may be modified child support obligation is non-modifiable. As the official comments to those fulfillment of the duty of support established by that order provision that could not be modified under Massachusetts law. governs the duration of the obligation of support. The obligor’s State that is determined to have issued the initial controlling order (d) In a proceeding to modify a child-support order, the law of the

official comments to the 199 p. 6 6 version of UIFSA explain that if the original child in 2001, this section of UIFSA now reads:

obligation remains constant, even though virtually every other aspect of the support obligation because, under UIFSA, duration is a duration of the child-support that could have been modified under Massachusetts law.” to apply its own substantive law “to any provision of the child support order The 2001 amendments to UIFSA confirm that the duration of an obligor’s

Massachusetts law. In effect, Massachusetts law continues to govern any See id.

Support Act § p. 6 611 (amended 2008), 9-IB U.L.A. 446 (2005). For example, the of an issuing state’s original child support order. See Unif. Interstate Family

In this case, Massachusetts law governs the duration of Husband’s child

exclusive jurisdiction over the child support order, and obtained the authority B:49, III; Symposium, supra at 13 p. 6 6-37 (discussing 2001 amendments).

those aspects of the Massachusetts orders that were not modifiable under sought modification, did not reside here, although Husband did. Despite becoming the issuing state, New Hampshire could not modify

Grooms, 10 Cal. Rptr. 3d 14 p. 6 6, 151-52 (Ct. App. 2004). § 611 (amended 2008), 9-IB U.L.A. 255, 259 (2005); In re Marriage of Crosby & 600 N.W.2d 159, 168 (Neb. 1999); see Unif. Interstate Family Support Act

occurred, New Hampshire became the issuing state, assumed continuing 2003 when it increased the weekly amount of child support. Once this B:49, I(a). New Hampshire modified the Massachusetts child support orders in

parents and their children no longer resided in Massachusetts and Wife, who 2003 to modify the parties’ Massachusetts child support orders because the In this case, pursuant to UIFSA, New Hampshire had jurisdiction in

2. Application of UIFSA that the trial court did not err by applying New Hampshire law.

p. 7 UIFSA and the choice of law provision in the parties’ original decree. We hold err by applying New Hampshire law to this aspect of the parties’ divorce. expenses is modifiable under Massachusetts law, then the trial court did not expenses is modifiable under Massachusetts law. If payment of college

consistent with this opinion. 7 portion of the trial court’s decision and remand for further proceedings Husband had paid child support he did not owe. Therefore, we vacate this

the children’s college expenses. In making this assertion, she relies upon

the children’s college expenses, we must examine whether payment of college

of the support obligation is fixed. regarding payment to the travel/college escrow account on the ground that order. . . . Once a controlling order is identified . . . , the duration RSA 546-B:14, :49, II; Unif. Interstate Family Support Act § 611 (amended order issued under UIFSA will invariably be the initial controlling

was proper for the trial court to apply New Hampshire law to the payment of We first address Wife’s assertion under UIFSA. To determine whether it

trial court erred by excusing Husband’s failure to comply with its 2003 order may be required to pay child support until the child graduates from college, the duration. . . . In sum, absent tribunal error the first child support support obligation, and because under Massachusetts law, a divorced parent Wife next argues that the trial court erred when it applied New

statute. B. College Expenses

the law of the issuing State provides for modification of its Because Massachusetts law governs the duration of Husband’s child clear. The original time frame for support is not modifiable unless . . . 2001, the amendments should make this decision absolutely See Spencer v. Spencer, 882 N.E.2d 886, 890 (N.Y. 2008). they provide insight into the intended meaning of New Hampshire’s existing Id. at 258. Although New Hampshire has not adopted the 2001 amendments,

controlling order. If the language was insufficiently specific before duration of child-support obligation should be fixed by the From its original promulgation UIFSA determined that the

Id. at 255 (emphasis omitted). The official comment to this provision explains: matter.

p. 8 aptitudes, interests and desires.

costs beyond an undergraduate degree. of such child in an educational program, excluding educational dependent upon said parent for maintenance due to the enrollment

petition the Middlesex Probate Court for a resolution of the merged with the decree and could be modified only for a material change of the child. If they cannot resolve the issue, either party may college tuition, room, board, books and transportation fees of

joint consultation with due regard for the children’s

merged with the judgment. Under Massachusetts law, therefore, this provision financial responsibility each of them shall bear for the cost of

institution for the children shall be made on the basis of

age twenty-one but who has not attained age twenty-three, if such maintenance, support and education of any child who has attained maintenance. The court may make appropriate orders of The parties’ divorce decree stated that all “provisions relating to the children” to attend college, the parties shall meet and discuss the

B. The Husband and Wife agree that the choice of educational

modification under Massachusetts law. of a parent, and is principally dependent upon said parent for to the college expenses of their children. College expenses are, thus, subject to aptitude and interests. One year before a child is scheduled the best college education available to them in light of their A. The Husband and Wife agree that the children should receive

provision provided: which was expressly merged with their Massachusetts divorce decree. This included a college expense provision in their original separation agreement, Massachusetts case law supports this conclusion. The parties here

has not attained age twenty-one and who is domiciled in the home This provision allows, but does not mandate, that divorced parents contribute

and education of any child who has attained age eighteen but who The court may make appropriate orders of maintenance, support

part: Massachusetts General Laws chapter 208, § 28 provides, in pertinent

Rptr. 3d at 151-52; Groseth, 600 N.W.2d at 168. 2008), p. 9 9-IB U.L.A. 255, 259 (2005); In re Marriage of Crosby & Grooms, 10 Cal. 9

child support obligation pursuant to California law.

California, and the husband moved to Oregon.

Idaho law. agreement included a provision requiring that its interpretation be governed by

bears any significant relationship to that jurisdiction.” jurisdiction to govern their affairs, that choice will be honored if the contract

the motion and applied California’s child support guidelines in doing so. Id. sufficient to justify modifying the decree. Id. The trial court granted district attorney’s office filed a motion in California to modify the husband’s

In re Marriage of Crosby & Grooms, 10 Cal. Rptr. 3d at 147-48.

53, instructive. In that case, the parties divorced in Idaho, and their We find In re the Marriage of Crosby & Grooms, 10 Cal. Rptr. 3d at 152-

Hampshire law, “[w]here parties to a contract select the law of a particular Hampshire public policy, as reflected in UIFSA. parties’ choice of law provision in their original decree would violate New (Second) of Conflict of Laws § 187(2)(b) (1 p. 9 971). We hold that to honor the preparing to do so, would constitute a material change of circumstances the state of the otherwise applicable law (here, New Hampshire). Restatement that a child was nearing college age, wanted to attend college, and was applying the chosen law would be contrary to a fundamental public policy of they would have had to seek court modification of the original decree. The fact 196, 197-98 (1991), the parties’ choice of law will not be honored when is modifiable under Massachusetts law. Therefore, pursuant to UIFSA, the trial which New Hampshire has adopted, see Glowski v. Allstate Ins. Co., 134 N.H. Thus, particularly under the circumstances here, payment of college expenses Under the approach set forth in the Restatement (Second) of Conflict of Laws, request the expenses until after the child had already graduated from college. Banker Residential Affiliates, 144 N.H. 626, 628 (2000) (quotation omitted).

The parties’ choice of law provision does not alter this result. Under New

2. Parties’ Choice of Law

law, had the parties been unable to agree about payment of college expenses,

award these expenses, and the appellate court affirmed, when the wife did not N.E.2d 844 (Mass. App. Ct. 2004), for instance, the trial court declined to to decide whether such expenses were warranted. In Purdy v. Colangelo, 810 1122 (Mass. App. Ct. 2002). The trial court would retain discretion, however,

college expenses in any specific proportion or amount, under Massachusetts As the original decree did not require the parties to pay their children’s

1 p. 9 999); Mandel v. Mandel, 906 N.E.2d 1016, 1019 (Mass. App. Ct. 2009). circumstances. See Bercume v. Bercume, 704 N.E.2d 177, 181-82 (Mass. p. 10 Hampshire law, “the trial court had broad discretionary powers to order

the trial court erred when it applied New Hampshire law.

the authority to contradict such mandates.”). given dispute, when the choice of law is dictated by statute, courts do not have Husband was ordered to pay these expenses in 2003. At that time, under New interstate child support modification.” UIFSA be followed in choosing the forum state and the law applicable to the

obligation to contribute to the children’s college expenses, we turn to whether

and parties to a certain extent, may choose which state’s law will apply in a We first address Husband’s obligation to pay the son’s college expenses.

be contrary to a fundamental public policy of New Hampshire, “i.e., that . . .

govern here and that pursuant to UIFSA, New Hampshire law applies to the Having concluded that the parties’ choice of law provision does not Hampshire law applies to Husband’s obligation to pay college expenses. Accordingly, we hold that despite the parties’ choice of law provision, New 3. New Hampshire Law materially greater interest than Massachusetts in resolving this dispute.

1014 (Kan. Ct. App. 2005) (“Although there are circumstances in which courts, only state with a legitimate interest in dispute); cf. Hale v. Hale, 108 P.3d 1012, applying Massachusetts’ law regarding the payment of college expenses would because, now that the parties and their children live in Florida, Florida is the contrary to public policy. Florida law despite parties’ agreement that California law would govern Wagner v. Wagner, 885 So. 2d 488, 494 (Fla. Dist. Ct. App. 2004) (applying

amount of child support. order, California has a materially greater interest than Idaho in determining the Massachusetts child support order under UIFSA, New Hampshire has a under UIFSA, California is the correct forum for modifying the child support Hampshire and New Hampshire is the proper forum for modifying the

(Massachusetts). New Hampshire, like California, has adopted UIFSA and apply would, among other things, undermine the mandate of UIFSA and be neither the parties nor their children live in the original forum state We find this reasoning persuasive. Here, as in the California case,

Additionally, the court observed, because the wife lives in California, and, applicable to an interstate child support modification.” Id. at 153. i.e., that the UIFSA be followed in choosing the forum state and the law support guidelines would be contrary to a fundamental policy of California law,

The appellate court disagreed, reasoning that requiring that Idaho law

parties’ choice of law provision. Id. at 152. The husband appealed, arguing, in part, that this was error because of the meaning of the parties’ 1997 stipulation and the trial court’s 2003 order,

p. 11 contribution to the travel/college escrow account. Based upon the plain

required him to pay $187 per week in child support, less the $40 per week further modified the amount of Husband’s child support obligation when it premium payment, the 1997 stipulation did not. The court’s 2003 order

but whereas the 1989 decree allocated $15 of this amount to a medical

to the 1997 stipulation, Husband continued to owe Wife $113 in child support, premiums, the parties’ 1997 stipulation eliminated this requirement. Pursuant decree required Husband to pay Wife $15 per week for health insurance

expenses. 11 trial court had no jurisdiction to issue a new order for payment of these 2008, when the daughter graduated from college. Although the parties’ 1989 2, 2004 change in the law, and because that change operates prospectively, the

towards the cost of health insurance premiums from February 2003 until May dollar amount toward the daughter’s college expenses predating the February Husband to pay $4,140 to Wife to account for the $15 per week he failed to pay

determine the amount Husband owes.

court retained the authority to enforce its 2003 order.

there is no order requiring Husband to pay a set percentage of or a specific Wife next contends that the trial court erred when it declined to order

C. Health Insurance Premium Contribution

contribute to these expenses. son’s college expenses, we vacate this portion of its order and remand for it to affirm the trial court’s decision denying Wife’s request to order Husband to Matter of Goulart & Goulart, 158 N.H. 328, 330-32 (2009). We, therefore,

See In the Matter of Donovan & Donovan, 152 N.H. at 63-64; In the college expenses predated the February 2, 2004 change in the law, the trial

amendment only applies prospectively. We next address payment of the daughter’s college expenses. Because

misapplied New Hampshire law with respect to Husband’s contribution to the Cole & Ford, 156 N.H. at 612. Because we conclude that the trial court

the 2003 order that required Husband to pay $3,000 per year toward the son’s (2007); In the Matter of Forcier & Mueller, 152 N.H. 463, 466 (2005). Because Donovan, 152 N.H. at 63-64; In the Matter of Cole & Ford, 156 N.H. 609, 612

expenses. This was error. We have repeatedly held that the February 2, 2004 amendment nullified its 2003 order mandating payment of the son’s college The trial court applied this amendment retroactively, ruling that the

contribute to an adult child’s college expenses. See id.; RSA 458:17, XI-a. statute was amended to preclude a trial court from ordering a parent to New Hampshire law changed, effective February 2, 2004, when the pertinent Matter of Donovan & Donovan, 152 N.H. 55, 61 (2005) (quotation omitted). divorced parents to contribute to their children’s college expenses.” In the p. 12 12

BRODERICK, C.J.