2008-655, In the Matter of Jeffrey M. Gray and Janette L. Gray

2004, the Salem Family Division (

custody order. and mother to pay child support directly to the aunt. They appealed the

are the parents of two children; they divorced in August 2002. In October

the children’s aunt. In a separate order, the family division ordered the father

The record supports the following facts. Jeffrey Gray and Janette Gray

division’s July 8, 2005 Uniform Support Order. We affirm. Family Division (Ryan, J.) finding that he failed to comply with the family DUGGAN, J. The petitioner, Jeffrey Gray, appeals an order of the Salem

Human Services. general, on the brief), for the New Hampshire Department of Health and Kelly A. Ayotte, attorney general (James W. Kennedy, assistant attorney to press. Errors may be reported by E-mail at the following address: Jeffrey Gray, by brief, pro se.

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF JEFFREY M. GRAY AND JANETTE L. GRAY

No. 2008-655 editorial errors in order that corrections may be made before the opinion goes Salem 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 p. 2 $29,901.84 in child support. This appeal followed. to comply with the support order. As of July 25, 2008, the father owed

issues of custody and support. The Family Division ( stating that the family division lacked subject matter jurisdiction over the “notice to court, office of child support enforcement, and child support referee”

Division issued an order finding the father in contempt because he had failed

enforcement of the support order. On February 28, 2007, the father filed a

not complied with the support order. On August 12, 2008, the Salem Family

hearing. At the hearing, the family division vacated its suspension of the

family division’s order ceding jurisdiction over the children’s custody to Maine. On April 29, 2008, DHHS moved for the father to show cause why he had

motion to dismiss the notice. duty of support. DHHS moved for reconsideration. Hurd, J.) granted DHHS’s

( New Hampshire Supreme Courts. On November 15, 2006, the Family Division reconsider suspending enforcement of the support order and scheduled a 30, 2007, the Family Division (Hurd, J.) partially granted DHHS’s motion to Petition of Jeffrey G., No. 2006-0349 (N.H. November 28, 2006). On January

In an unpublished order dated November 28, 2006, we affirmed the

decision. continuing to accrue, while the appellate courts determined to whom he owed a suspended the enforcement and collection of his obligation, with the obligation DeVries, J.) denied the father’s motion without prejudice. The court

support payments when the guardianship was on appeal to both the Maine and change in custody. He contended that it was unreasonable to continue child Jeffrey G., the family division did not change the support order to reflect the vacate the October 2004 support order. He argued that after our decision in In September 2006, while that appeal was pending, the father moved to

custody of the children to the State of Maine. The father appealed that March 2006, the Salem Family Division (Korbey, J.) ceded jurisdiction over the decision, the aunt obtained a guardianship over the children in Maine. In Jeffrey G. & Janette P., 153 N.H. 200, 204-05 (2006). Within a month of our lacked statutory authority to award custody to the aunt. In the Matter of In January 2006, we held that under RSA 458:17 the family division

father did not appeal. New Hampshire Department of Health and Human Services (DHHS). The order so that the father was to make his child support payments directly to the order. On July 8, 2005, the Salem Family Division (Korbey, J.) modified the While the appeal was pending, the father moved to modify the support words used.”

p. 3 intent.” 3

the statute and where possible, we ascribe the plain and ordinary meanings to

statutory scheme.”

unambiguous, we need not look beyond it for further indications of legislative enforce the support order.

undertaking statutory interpretation, “[w]e first examine the language found in 2009) (quotation omitted). over the father’s support order, we must interpret the relevant statutes. When Coco v. Jaskunas, 159 N.H. __, __ (decided December 16, “We interpret statutes not in isolation, but in the context of the overall Appeal of Astro Spectacular, 138 N.H. 298, 300 (1994) (quotation omitted). of the legislation nor add words which the lawmakers did not see fit to include.” matter jurisdiction. time during the proceeding, including on appeal,” and may not waive subject Id. (quotation omitted). “Courts can neither ignore the plain language

2009) (quotation omitted). “When a statute’s language is plain and no jurisdiction.” custody are independent, so that the family division retained authority to Appeal of Garrison Place, 159 N.H. __, __ (decided December 16,

involved in the action.”

To determine whether the family division had subject matter jurisdiction

father may raise these arguments on appeal.

quotation omitted). A party may challenge subject matter jurisdiction “at any

Daine v. Daine, 157 N.H. 426, 428 (2008) (bracket and

power to hear or determine a case concerning subject matters over which it has App. 2001), division’s earlier decisions. Alternatively, DHHS argues that support and aff’d on other grounds, 65 P.3d 1194 (Wash. 2003). “A court lacks

other words, it is “a tribunal’s authority to adjudicate the type of controversy persons or the status of things.” Black’s Law Dictionary 931 (9th ed. 2009). In argues, the support order is unenforceable because in type of relief sought; the extent to which a court can rule on the conduct of Subject matter jurisdiction is “[j]urisdiction over the nature of the case and the division’s previous rulings bars his jurisdictional arguments in this appeal. We first address whether the father’s failure to appeal the family

by res judicata and collateral estoppel because he failed to appeal the family children to the aunt. DHHS counters that the father’s arguments are barred the Salem Family Division did not have jurisdiction to award custody of the

(Supp. 2009)) is dependent upon its authority to award custody. Therefore, he award support pursuant to RSA 458:17 (2004) (now codified at RSA 461-A:14, I jurisdictional arguments stemming from his claim that the court’s authority to The father raises twenty-one issues on appeal, including several

I. Salem Family Division’s Authority to Enforce the Support Order obligor, continues to reside in New Hampshire. p. 4 it may enforce the support order because the record reflects that the father, the Therefore, although the family division no longer has jurisdiction over custody,

a child support order even when the children move to a different state.

plain language of the statute, a New Hampshire court retains jurisdiction over this state remains the residence of the obligor.” RSA 546-B:7, I. Under the continuing, exclusive jurisdiction over a child support order . . . [a]s long as

interests of the child.”

The Uniform Interstate Family Support Act, codified at RSA chapter 546-B

child support in divorce proceedings. RSA 490-D:2, I. The family division’s authority includes the power to address

awarded custody if the court determines that such an award is in the best

context.” of child support after it ceded jurisdiction over the custody dispute to Maine. pursuant to RSA 458:17.” We conclude that the family division retained jurisdiction over the issue that “the trial court had jurisdiction to determine custody of the children custody of the minor children to the aunt. Moreover, we unequivocally stated held that the family division could not award custody to the aunt. Id. family division of jurisdiction over the issues of custody or support; we merely not award her custody in this case. Id. at 205. Our decision did not divest the of marriage, alimony, custody of children, support, and to establish paternity.” not fall into either of those two classes of third parties, the family division could

two classes of third parties, grandparents and stepparents, who may be

Id. at 205. This was based on RSA 458:17, VI, which “identifies only

that the court “did not have authority to grant custody to [the aunt] in this terminates by operation of law. Jeffrey G., 153 N.H. at 204. We went on to hold

only considered whether the family division had statutory authority to award obligation to comply with the support order. We disagree. In Jeffrey G., we The father, however, argues that our decision in Jeffrey G. terminated his has granted the family division jurisdiction over “[p]etitions for divorce, nullity retained the ability to modify and enforce the support order. Daine, 157 N.H. at 427-28 (quotation omitted). Therefore, the family division to all subsequent proceedings which arise out of the original cause of action.” N.H. 194, 200 (2003). The family division’s jurisdiction continues “with respect

provided for earlier cessation of payments or the child support obligation decrees remain in effect until they are judicially modified, unless the court has

divorce is strictly statutory”). Pursuant to RSA chapter 490-D, the legislature Daine, 157 N.H. at 427 (finding “court’s authority in matters of marriage and matter jurisdiction to the family division over the father’s support order. See The plain language of RSA chapter 490-D (Supp. 2009) grants subject circumstances.”

p. 5 2005 to modify his obligation based upon a substantial change in

incapacitated.” This was further supported by “the lack of any requests since

and the total absence of any evidence that he is physically or mentally voluntarily underemployed “[b]ased upon his most current financial affidavit father submitted. In addition, the family division found the father to be determine the parent’s “present income.” When calculating a parent’s child support obligation, the court must first 5

We agree. his attitude and demeanor” raised doubts about “his credibility and voluntarily underemployed and that he failed to comply with the support order. “misleading” information on the financial affidavit.

of the noncustodial parent in disclosing income.”

order. The only evidence before the family division was a financial affidavit the

improperly required him to submit his tax returns for the years 2001-2005.

division observed that the father’s “reported income and expenses as well as DHHS contends that the Salem Family Division properly found he was Id. at 197. Here, the family This includes the use of past tax returns when the obligor provides

upon the facts presented at the hearing” and “the credibility and forthrightness “It is up to the trial court to decide what income figures should be used based

the hearing, the father provided no evidence to show that his financial discretion when it found the father failed to comply with the support order. At Next, we address the father’s argument that the family division

Finally, he challenges the court’s finding that he is $29,901.84 in arrears. has the burden of showing that the order was improper and unfair.” returns for 2001 to 2005 because they do not reflect his present income. Next, he contends that the court erred in requiring him to submit income tax of discretion or an error of law.”

We cannot conclude that the family division unsustainably exercised its

(quotation omitted). The father has not met this burden.

555, 558 (2009) (quotation omitted). “The party challenging the court’s order

voluntarily underemployed and not in compliance with the support order. 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 in divorce and separation cases are conferred entirely by statute. We afford “The court’s powers in custody, maintenance, and education of children

division unsustainably exercised its discretion when it found that he was is not in compliance with the support order. First, he argues that the family The father raises several challenges to the family division’s decree that he

II. Family Division’s Order Finding the Father in Contempt p. 6 6

owed $29,901.84 as of July 25, 2008. division unsustainably exercised its discretion when it found that the father

owed when we issued our decision in

obligation remained intact. Consequently, we cannot conclude that the family BRODERICK, C.J., and DALIANIS and CONBOY, JJ., concurred.

$29,901.84, arguing that he only owes $5,743 because that was the amount 321, 322 (1993). lack merit and warrant no extended consideration. Vogel v. Vogel, 137 N.H. We have reviewed the father’s remaining arguments and hold that they

Division issued no subsequent orders modifying the support order, the father’s Haller & Mills, 150 N.H. 427, 429-30 (2003). Because the Salem Family orders remain in effect until they are judicially modified. See In the Matter of

Finally, the father contests the family division’s finding that he owes

submit the past tax returns to aid in establishing his present income. forthrightness.” Therefore, the family division properly ordered the father to