2011-856, In the Matter of Kimberly J. Nicholson and John P. Nicholson

provides that the Father is to pay $244 per week in child support. the court. The stipulation incorporates a “Uniform Support Order” (USO), and

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out in the parties’ permanent stipulation, which was approved and ordered by IN THE MATTER OF KIMBERLY J. NICHOLSON AND JOHN P. NICHOLSON

which time all of their children were minors. The terms of the divorce were set

Father were married and had three children. The parties divorced in 2000, at The following facts are drawn from the record. The Mother and the No. 2011-856 10th Circuit Court – Brentwood Family Division

, of Center Sandwich (Leslie H.

remand.

Brentwood Family Division (Hurd

reporter@courts.state.nh.us

obligations to the petitioner, Kimberly J. Nicholson (Mother). We reverse and Nicholson (Father), to be $28,556, plus interest, in arrears on child support ___________________________ , J.) finding the respondent, John P. CONBOY, J. This is an appeal from an order of the 10th Circuit Court – THE SUPREME COURT OF NEW HAMPSHIRE

Johnson on the brief and orally), for the respondent. Law Office of Leslie H. Johnson, PLLC to press. Errors may be reported by E-mail at the following address: and Brian D. Kenyon 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

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

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 In the Matter of Laura & Scott had been such an agreement, it would not be enforceable because, pursuant to parties to reduce support payments. Instead, it concluded that even if there

The court did not decide whether there was an agreement between the

absent an unsustainable exercise of discretion or an error of law. In the Matter We will not disturb the trial court’s rulings regarding child support

amount paid by 1/3 as each child emancipated.” requesting a reduction.” It found, rather, that the Father had “reduced the

obligation at any time.

support . . . nor was there any agreement or pleading presented to the court

even though neither party obtained an order reducing the child support arrearage should have accounted for the two older children’s emancipation On appeal, the Father argues that the trial court’s calculation of the

change.” The court observed that “at no time was there a recalculation of

the number of children for whom support is ordered, effective the date of the recalculated in accordance with the guidelines whenever there is a change in included with the USO states that “[t]he amount of child support shall be 2

of the court through private agreement.”

the emancipation of the youngest child on July 11, 2011.

30, 2011. The court noted that paragraph SO-4B of the Standing Order (SO)

award is a standing order from the trial court. Parties may not modify orders we stated in p. 2 In the Matter of Laura & Scott, 161 N.H. at 336, “the child support approved stipulation regarding child support payments is not enforceable. As acknowledge, however, that the Husband’s support obligation terminated upon trial court that any alleged agreement between the parties outside of the support “shall continue until the children reach the age of 18 or graduates [sic adjustments for the emancipation of the two older children. It did of Scott & Pierce, 160 N.H. 354, 358 (2010). At the outset, we agree with the Father to be in arrears, and calculated the amount due without making

The court held a hearing on the matter and issued an order on August

later.” The Father also argued that the petitioner had agreed to this reduction.

as each child became emancipated because the decree states that child child support orders through private agreement. The trial court found the

each child graduated from high school or reached age 18 years, whichever was

argued that the final decree entitled him to reduce his child support payments has paid no support at all since April 16, 2009. The Father objected and when their oldest child graduated from high school in May 2007 and that he

understood this to mean that the child support would be reduced by $82.00 as from high school, whichever shall last occur.” He argued that “[t]he parties

other things, that the Father had unilaterally reduced the amount of support In April 2011, the Mother filed a motion for contempt arguing, among ordered, effective the date of the change

p. 3 whenever there is a change in the number of children for whom support is that “child support shall be recalculated in accordance with the guidelines is filed.” Paragraph SO-4B of the SO does “provide otherwise,” for it instructs

effective date of any modification shall be no earlier than the date the petition

Paragraph SO-3B states that “[e]xcept as otherwise provided in this order, the

armed forces. the support ordered would remain unchanged until all (Emphasis added.) Thus, unless the court “specified differently,” the amount of

allocates the payments on a per child basis.

whichever is later; gets married; or becomes a member of the 3

amount shall remain as specified unless a legal order expressly support obligation terminates without further legal action. This or become a member of the armed forces, at which time the child

his/her high school education or reaches the age of 18 years,

(Supp. 2011). See In interpreting the meaning of a divorce decree, we review the decree de or reach the age of 18 years, whichever is later, or become married, situation. It has since been amended and recodified as RSA 461-A:14, IV to determine whether the court “specified differently.”

Child support shall terminate when the youngest child terminates

modifications of orders that were issued prior to the change in legislation.” Id SO-4A of the SO, incorporated in the stipulation, states: of the parties as expressed in the language of the stipulation. Id. Paragraph novo. Sommers v. Sommers, 143 N.H. 686, 692 (1999). We consider the intent

is provided in the order shall terminate their high school education At the time the parties divorced, RSA 458:35-c (1992) governed this emancipated as described. Accordingly, we look to the terms of the final decree Unless the court children were

prospective application only, and does not apply to post-enactment

stated in the order until all dependent children for whom support support obligation stated in the order for support shall remain as recalculation of support.. . . specifies differently, the amount of a child the terms of the divorce decree and controlling statute mandate a retrospective controlling. It provided, in relevant part: Thus, the version of RSA 458:35-c in effect at the time of the parties’ divorce is

(2009). However, the amended version is not applicable here, for it “has

In the Matter of Johnson & Johnson, 158 N.H. 555, 559

This, however, does not end our analysis. The question here is whether p. 4 Reversed and remanded

remand for a calculation of the arrearage consistent with this opinion. Accordingly, we reverse the trial court’s arrearage calculation and

trial court’s order to specify differently, and it did so.

each child’s status changed is of no consequence; RSA 458:35-c permits the parents failed to obtain a court order modifying the support obligation when upon which each of the two older children became emancipated. That the DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

court was obligated to retrospectively recalculate child support as of the dates to the plain language of the SO, in calculating the support arrearage, the trial