2011-0734, In the Matter of Mary Beth LaRocque and George W. LaRocque

The respondent, George W. LaRocque (Father), appeals an

the brief and orally), for the respondent. Law Office of Donald A. Kennedy on to press. Errors may be reported by E-mail at the following address: brief and orally), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in In the Matter of Laura & Scott p. 2 was not approved by the court, it is not rendered unenforceable by our decision reduce child support. He further contends that even though this agreement

contempt because the parties had agreed to waive child support arrearages and

On appeal, the Father argues that the trial court erred in finding him in

appeals.

child support, as the effective date of the modification. The Father now

child support,” and set January 7, 2011, the date the Father moved to modify “constitutes a substantial change in circumstances warranting modification of turned eighteen on June 22, 2010, and was no longer in school, which

granted the Father’s request to modify child support because their oldest child

was sufficient to support the trial court’s finding that they did not have a

that arrearages as of December 20, 2010, totaled $102,845.52. The court

evidence on the issue of whether there was such an agreement, the evidence

such an agreement and held the Father in contempt. The court determined After a hearing, the trial court found that the parties never entered into

modify the amount of child support. Although the parties presented conflicting waive any amounts due for past child support, and that she never agreed to minds.” At the hearing, however, the Mother testified that she never agreed to

his child support obligation.

the court-ordered child support “clearly establishes a mutual meeting of the

child support arrearages and to modify child support. He also moved to modify eighteen. The Father objected, arguing that the parties had agreed to waive unilaterally reduced his child support payment when their oldest child turned

evidence and that the Mother’s acceptance of a check for an amount less than The Father argues that the trial court’s findings are not supported by the

that the Father had failed to pay the full child support ordered, and had Glick v. Chocorua Forestlands Ltd. P’ship

552, 555 (1982). unless it is lacking in evidentiary support. Guri (Cushing) v. Guri, 122 N.H. and the Father did not agree to waive arrearages and reduce child support Accordingly, we will not disturb the trial court’s determination that the Mother

Following her death, he received $500,000 in life insurance proceeds. Father subsequently remarried and his second wife died in October 2010. upon sale of the property or the youngest child reaching age twenty-two. The

and a mortgage in favor of the Father in the amount of $18,000 to be paid awarded the marital homestead, but was required to execute a promissory note p. 3 See found no prejudice sufficient to justify the application of laches, and we agree. receiving [less child support than the court ordered].” The trial court, however,

IV (2004); RSA 458-C:3 (Supp. 2011). “Gross income” is defined as: that “seven years later [the Mother] complains about the fact that she is

the trial court begins with the parties’ respective gross incomes. RSA 458-C:2, laches, his argument as to prejudice is essentially limited to the bare assertion Under the child support guidelines, in calculating the amount of child support The trial court granted the Father’s request to modify child support.

purposes of the defense of laches).

delay was unreasonable and that prejudice resulted from the delay. Id

Father argues that, even absent an agreement, the facts support the defense of the trial court found that there was no agreement. To the extent that the defense of laches should be afforded to the defendant.” As we explained above,

substance of a lawsuit alone is insufficient to support a finding of prejudice for id. at 486 (explaining that the defendant’s interest in timely addressing the The party asserting laches bears the burden of proving both that the

potential plaintiff has slept on his rights.” Premier Capital v. Skaltsis by the evidence or erroneous as a matter of law. p. 3 See application of laches; we will not overturn its decision unless it is unsupported

the parties from having an agreement not approved by the Court, then the was unreasonable and prejudicial. Id the Father asserts that “if the Supreme Court finds that the Scott case prevents trial court determined that the Father did not satisfy his burden. On appeal,

finding of the arrearages as [the Father] was prejudice[d] and the delay was has broad discretion in deciding whether the circumstances justify the Alternatively, the Father argues that “[t]he defense of laches prevents the Town of Tilton, 151 N.H. 483, 486 (2004) (quotation omitted). The trial court (3) the interests to be vindicated; and (4) the resulting prejudice.” Thayer v. absent court approval. p. 3 See analysis: (1) the knowledge of the plaintiffs; (2) the conduct of the defendants; modify the child support amount, such an agreement would be unenforceable. “We consider four factors in our correctly observed that even if the parties had entered into an agreement to applicable statute of limitations period, laches will bar suit only if the delay claim to be enforced. See id. When the delay in bringing suit is less than the elapsing of time, but is principally a question of the inequity of permitting the 110, 118 (2007) (quotation omitted). Laches is not a mere matter of the

(conflicts in evidence are for the trial court to resolve). Moreover, the trial court contract. p. 3 See In the Matter of Henry & Henry, 163 N.H. 175, 181 (2012) is a question of law, which we review de

p. 4 excluded by the statute.” Finally, citing In the Matter of State & Taylor “unlike other sources of income, life insurance proceeds are not specifically

Whether life insurance proceeds fall within the definition of gross income

life insurance proceeds should not be included in his gross income.

enforceable right to compel the payments.” The trial court also noted that

child support amount. On appeal, the Father argues that, as a matter of law,

money were in fact paid over to the [Father] and he would have had an items enumerated in RSA 458-C:2, IV, stating “[t]he proceeds in the form of that life insurance proceeds have the same two characteristics as the other 4

statutory definition of gross income and included it in calculating the modified insurance proceeds from the death of the Father’s second wife falls within the RSA 458-C:2, IV. The trial court determined that the $500,000 in life

to the types of items therein particularized. Id

The trial court gave several reasons for its decision. First, it explained

monetary.” Id N.H. 700 (2006), the trial court noted that: benefits, and disability benefits . . . ., 153 workers’ compensation, veterans’ benefits, unemployment government programs . . . including, but not limited to,

“including, but not limited to” in the statute limits the application of the statute

the words used. Id legal obligation to give.” Id. generally speaking, has a legally enforceable right and which the provider has a

. Second, the items listed “are all things to which the recipient,

as expressed in the words of the statute considered as a whole. In the Matter of money” as opposed to “items that, although they may carry value, are not characteristics. Id. “First, all of the items listed involve payments in the form the items particularized in the statutory definition of “gross income” share two profits, pensions, bonuses, and payments from other. at 267. We have explained that

definition of gross income, nor expressly excluded. The use of the phrase Life insurance proceeds are neither specifically included in the statutory

of the statute, and, where possible, ascribe the plain and ordinary meanings to of Fulton & Fulton, 154 N.H. 264, 266 (2006). We first examine the language

155 N.H. 259, 262 (2007). We are the final arbiters of the legislature’s intent

rental income, self-employment income, alimony, business gambling winnings, interest, dividends, investment income, net annuities, social security benefits, trust income, lottery or

including, but not limited to, wages, salary, commissions, tips, all income from any source, whether earned or unearned, p. 5 “The amount of child support shall be recalculated in accordance with the

provision of the parties’ Uniform Support Order – Standing Order, which states:

eighteen and was no longer in school. He relies upon paragraph SO-4B, a modification should be June 22, 2010, the date on which his daughter turned were in effect at the time of the parties’ divorce, the effective date of the wages and wage equivalents, In the Matter of Jerome & Jerome

effective date of the modification. He asserts that based upon the orders that The statutory definition of gross income is broad; it is not limited to

We agree with the trial court.

2011, the date on which he requested that child support be modified, as the Finally, the Father argues that the trial court erred in setting January 7,

it is income. than in some periodic fashion, does not preclude a finding that court has specifically held that this method of payment, rather

this case the insurance proceeds were paid in a lump sum, the explained in Taylor

the proceeds. We, therefore, conclude that the definition of gross income in child support obligations based merely upon the means by which they receive obligors who both receive life insurance proceeds to have substantially different

investment income are included in the definition. Although in excluding them from the definition of gross income. For the same reasons we utilized for investment purposes and proceeds characterized as proceeds in this case were paid in a lump sum is insufficient to justify payout upon a particular event occurring. Life insurance is also intended to refer to certain annuities and not others.”). The mere fact that the

periodic annuity-type distributions. See

settlements, it would not make sense for two similarly situated child support C:2, IV. Gross income also includes nonrecurring income. In the Matter of, 153 N.H. at 704, with regard to personal injury

definition, and similar to life insurance, might condition a cannot] presume that, when the legislature used the word ‘annuities’ it Jerome, 150 N.H. at 629 (“Plainly, annuities are listed in the statute. . . . [We annuities would fall within the plain language of the definition of gross income. Insurance 2d §180.13, at 578-81 (2006). Those that are paid essentially as

proceeds can be paid in various ways, including lump sum payments and Feddersen & Cannon, 149 N.H. 194, 197 (2003). Moreover, life insurance

629 (2004), and it encompasses both earned and unearned income, RSA 458-

or trust income, both of which are included within the little difference between an insurance contract and an annuity purposes of the definition of gross income, there appears to be

of the underlying insurance contract or how it was funded, for Although there was no evidence presented as to the details p. 6 6 Affirmed in part; reversed in

affects the Father’s support and arrearage obligations. court the determination as to how the receipt of the life insurance proceeds

assigned under RSA 490:3, concurred.

received the life insurance proceeds as of June 22, 2010. We leave to the trial

DALIANIS, C.J., and HICKS, J., concurred; GALWAY, J., retired, specially

well as his arrearages, in light of this opinion. We note that the Father had not for the court to recalculate the Father’s on-going child support obligation, as should be June 22, 2010. Accordingly, we vacate the court’s order and remand

light of our decision in In the Matter of Nicholson & Nicholson remanded At the time the parties divorced, RSA 458:35-c (1992) governed. Thus, in part; vacated in part; and

(decided August 21, 2012), we agree that the effective date of the modification

support is ordered, effective the date of the change.” guidelines whenever there is a change in the number of children for whom