2016-0478 and 2017-0063, In the Matter of Vivian Silva and Robert Silva

III (2004). We vacate and remand. division of the marital estate, see 26 U.S.C. § 529 (Supp. 2017); RSA 458:16 - a, during the pendency of the divorce, and did not consider the 529 account in its savings account, or “529 account,” established for their daughter’s benefit, not find the respondent in contempt for withdrawing funds from an education inequitably divided the marital estate, see RSA 458:16 - a, II (2004); a nd (3) did deviated from the child support guidelines, see RSA 458 - C:5 (Supp. 2017); (2) respondent, Robert Silva. She argues that the trial court erred when it: (1) appeals two order s of the Circuit Court (Introcaso, J.) in her divorce from the BASSETT, J. In these consolidated appeals, t he petit ioner, Vivian Silva,

and orally), for the respondent. Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brie f

on the brie f and orally), for the petitioner. Law Offices of Lydon & Richards, P.C., of Nashua (Edward W. Richards

2017 - 0063 No s. 2016 - 0478 9th Circuit C ourt - Nashua Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

parents share in the support responsibility for their children, according to the child s upport, but also to ensure that both the custodial and non - custodial chapter 458 - C is not only to ensure uniformity in determining the amount of amount of child support awards. Laura, 161 N.H. at 335. The purpose of RSA 458 - C ( p. 2 2004 & Supp. 2017), establish a uniform system to determine the New Hampshire’s child support guidelines, codifi ed in RSA chapter

( p. 2 2001). the discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296 deciding whether the record establishes an objective basis sufficient to sustain ruling made by a judge is a pr oper exercise of judicial discretion, we are really of Laura & Scott, 161 N.H. 333, 335 (2010). “When we determine whether a 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

schedule. We agree. the child support guidelines based upon the parties’ shared parenting The petitioner first argues that the trial court erred when it deviated from

I. Child Support

final child support order, both of wh ich were denied. These appeal s followed. petitioner filed motion s to reconsider the property distribution order and the the parties’ shared parenting schedule. See RSA 458 - C:5, I(h)( p. 2 2). The trial court ju stified the adjusted support obligation on three grounds related to from $1,590.00 per month to $533.80 per month. See RSA 458 - C:5, I. The support guidelines, thereby reducing the respondent’s child support obligation issued a final order. The court ordered a downward deviation from the child Subsequently, the trial court held a final child support hearing and

him to pay full ch ild support to the petitioner. respondent’s request to deviate from the child support guidelines, and ordered Support Order regarding child support. In that temporary order, it denied the trial court entered the final divorce decree, it also entered a temporary Uniform have equal or approximately equal residential responsibility.” At the time the p lan regarding the parties’ two children, which provided that the parties “shall The parties’ final divorce decree also included an agreed - upon parenting

equalize the award. bed and breakfast. The trial court awarded other assets to the respondent to awarded the parties’ real estate, where the parties had resided and operated a outlined in RSA 458:16 - a. By agreement of the parties, the petitioner w as equal division of the marital assets based upon a consideration of the factors irrecon cilable differences. In the final divorce decree, the trial court ordered an divorce hearing, t he trial court granted the parties a divorce based upon The record supports the following facts. In July p. 2 2016, following a final p. 3 3

obligee parent. reduction of any of the fixed costs of child rearing incurred by the or approximately equ al residential responsibility will result in a (B) Whether the obligor parent has established that the equal

child - related expenses. health insurance costs and uninsured health costs, and other vacation and summer care, extracurricular activities, clothing, not limited to education, school supplies, day care, after school, apportionment of variable expenses for the children, including but residential responsibility, the parties have agreed to the specific (A) Whether, in cases of equal or approximately equal

schedule, the court “may” co nsider three factors: the application of the child support guidelines bas ed upon the parenting The statute further provides that, in considering requests for adjustments to co nstitute ground for an adjustment.” RSA 458 - C:5, I(h)(1) (emphase s added). itself shall not eliminate the need for child support and shall not by itself “[e]qual or approximately equal parenting residential responsibilities in and of special circumstance. RSA 458 - C:5, I(h). However, the statute provides that RSA 458 - C:5 expressly identifies the parties’ parenti ng schedule as a

of the best interests of the child.” RSA 458 - C:5, I. Additionally, th e trial court must consider any special circumstances “in light ne eds.” In the Matter of Carr & Edmunds, 156 N.H. 498, 504 (2007). impact of a parent’s financial condition upon his or her ability to meet a child’s as including only circumstances that are “economic in nature and relate to the Although this list is non - exclusive, we have interpreted “spec ial circumstances” adjustment that deviates from the child support guidelines. RSA 45 8 - C:5, I. that, if raised by a party or the court, the court shall consider in making an RSA 458 - C:5, I, includes a non - exclusive list of special circumstances

(2005); see RSA p. 4 458 - C:4, II. inappropriate result.” In the Matter of Forcier & Mueller, 152 N.H. 4 6 p. 3 3, 465 adjustment from the child support guidelines to avoid an unjust or finding as to why a special circumstance pursuant to RSA 458 - C:5 justifies an 335 - 36. If the trial court deviates from the guidelines, it must “make a written II, because of “[s]pecial ci rcumstances,” RSA 458 - C:5, I; Laura, 161 N.H. at application of the guidelines would be “unjust or inappropriate,” RSA 458 - C:4, guidelines, when a party shows by a preponderance of the evidence that the presumption may be overcome, and the trial court may deviate from the c orrect amount of child support. Id.; RSA 458 - C:4, II (2004). This presumption that a child support award calculated under the guidelines is the relative percentage of each parent’s income. Id. There is a rebuttable 4

explain what ‘economic consequences’ result[ed] from this payment and why it to go to the college trust fund for the children’ was not legally sufficient to simple statement that the ‘remainder of child support obligation will continue RSA p. 4 4 58 - C:4, II; see Forcier, 152 N.H. at 465 (holding that “the trial court’s expenses made the application of the guidelines “unjust or inappropriate.” responsibility for other variable expenses, or explain how the division of apportionment of variable expenses or the respondent’s assumption of T he trial court did not analyze th e economic consequences of its

incurred during their respective parenting time s. that each party is responsible for all child care costs and vacation costs b oth parties agree to the activity or program. The trial court further p rovided activities and summer programs for the children, subject to the condition that required him to pay seventy - five percent of the cost of any extracurricular percent of the cost of health insurance deductibles and co - pays. It also apportioned to him two - thirds of the cost of school supplies and seventy - five expenses. In addition to the se costs assumed by the respondent, the court the cost of child care, sustenance, transportation, clothing, and other variable The court found that, d uring his parenting time the respondent assume d

justify a deviation. Nonetheless, we conclude that the trial court’s findings were insufficient to special circumstance that may be considered pursuant to RSA p. 4 458 - C:5, I(h)(2). of this appeal, we assume that a court - ordered apportionment of expenses is a special circumstan ce under RSA 458 - C:5, I(h)(2). Accordingly, for the pur poses — as opposed to an apportionment of expenses agreed to by the parties — as a that the trial court erred when it considered its own apportionment of expenses apportionment of expenses. Cf. RSA 458 - C:5, I(h)(2)(A). Neither party asserts the parties’ agreement to apportion variable expenses, but rather, upon its own Here, the trial court justified its deviation from the guidelines not upon

deviation. We agree with the petition er. expenses” to the respondent, and it specified written reasons justifying the apportioned “the majority of financial responsibility for several child - related respondent counters that the trial court’s deviation was sustainable because it factual basis” for its adjustment under sub p aragraph I (h)(2)(A). The The petitioner first argues that the trial court erred because the re was “no I(h)(2). The petitioner c hallenges all three grounds for the trial court’s decision. obligation on three grounds related to the factors enumerated in RSA p. 4 458 - C:5, The trial court justified the respondent’s adjusted child support

RSA p. 4 458 - C:5, I(h)(2)(A) - (C).

a pproximately equal style to that of the other parent. that parent to meet the costs of child rearing in a similar or (C) Whether the income of the lower earning parent enables p. 5 5

esp[ecially] overhead expenses such as rent....”). value does not fluctuate with changes in output or business activity; Law Dictionary 422 - 23 (10th ed. 2014) (defining “fixed cost” as “[a] cost whose we assume that the legislature intended something different.”); se e also Black’s 791 (2011) (“When the legislature uses different language in the same statute, same statute. S ee Ettinger v. Town of Madison Planning Bd., 162 N.H. 78 p. 5 5, mean something different than the term “variable expenses” as used in the 458 - C). Accordingly, p rinciples of statutory interpretation dictate that the term I(h)(2)(B). S ee RSA 458 - C:2 (Supp. 2017) (defining t erms used in RSA chapter output”). T he statute d oes not define “fixed costs” as used in RSA 458 - C:5, (defining “variable cost” as a “cost that fluctuates directly with change s in Webster’s Third New International Dictionary 2533 (unabridged ed. 2002) health costs, and other child - related expenses” (emphases added)); see also extracurricular activities, clothing, health insurance costs and unin sured education, school supplies, day care, after school, vacation and summer care, (referring to “variable expenses for the children” as “including but not limited to or are akin to the enumerated variable expenses. See RSA 458 - C:5, I(h)(2)(A) discussed are either explicitly referred to in the statute as “variable expenses,” Indeed, with the exception of housing, the expenses that the trial court costs were reduced because of the parties’ shared residential responsibility. children.” However, the trial court did not find that any of the petitioner’s fixed “[b]oth parents provide living arrangements, clothing and other items for the during his parenting time.” See RSA 458 - C:5, I(h)(2)(B). It fu rther noted that child c are, sustenance, transportation and all other costs for the children incurred by the [petitioner] in that the [respondent] takes full responsibility for schedule “has resulted in a reduction of t he fixed costs of child rearing I n its final order, the trial court found that the parties ’ shared parenting

during his parenting time. W e agree with the petitioner. full responsibility for child care, transportation, and other costs incurred written reasons for the deviation, including that the respondent has assumed I (h)(2)(B) was a sustainable exercise of discre tion because the court gave that the trial court’s devia tion from the guidelines under sub p aragraph costs of child rearing.” See RSA 4 p. 5 58 - C:5, I(h)(2)(B). The respondent counters downward deviation because there was no “proof of [a] reduction in [her] fixed T he petitioner also argues that the trial court erred when it made a

Gordon, 147 N.H. p. 6 693, 699 - 700 (2002). guidelines. See Forcier, 1 p. 5 52 N.H. at 465 - 66; In the Matter of Gordon and inappropriate, is insufficient, as a matter of law, to justify a deviation from the why this apport ionment made adherence to the guidelines unjust or been apportioned to, or assumed by, the resp ondent, without findings as to trial court’s recognition that responsibility f or certain variable expenses had [was] consequently appropriate and just” to enter a downward deviation). The 6

estimated monthly expenses — $4,370. T he re spondent did not challenge support payment ordered by the court — $2,872 — falls well short of her The petitioner’s adjusted gross monthly income plus the reduced child

equal to that of the respondent. See RSA 458 - C:5, I(h)(2)(C). continue to meet the cos ts of child rearing in a style that is approximately gross monthly income, plus child support, is insufficient to enable her to en vironment. However, the record demonstrates that the petitioner’s adjusted ho me and business property because they provide a safe and comfortable living t he petitioner, and by ex tension, the children, benefit from the petitioner’s will reside with her in a style similar to that of the respondent. We realize that peti tioner’s financial resources and home ownership en sure that the children which is $ p. 6 6,913. Despite this disparity, the trial court rea soned that the t he respondent’s adjusted gross monthly income minus his support obligation, monthly income plus child support, is $2,872, which is significantly less than conclusion. The record demonstrate s that the petitioner’s adjusted gross We conclude that the trial court made insufficient findings to support its

to that affordable to” the respondent. other financial resources assure that the children will reside in a style similar ... in an upscale, safe community” and that “[h]er home combined with h er privilege of a generous and comfortable living environment for the children the court observed that, as a result of her business, the petitioner “has the of the respondent. See RSA 458 - C:5, I(h)(2)(C). I n support of this statement, meet the costs of child rearing in a similar or approximately equal style to that” including self - employment wages, alimony, and rental income, “enables her to T he trial court stated that it w as “confident” that the petitioner’s income,

marital home. Again, we agree with the petitioner. deviation in writing, explaining that the petitioner had been awarded the guidelines was a sustainable exerc ise of discretion because it justified the obligor.” The respondent counters that the trial court’s deviation from the environment for the children during her parenting periods comparable to [the] deviate from the guidelines when the obligee can maintain a home and lifestyle consideration to RSA 458 - C:5, I(h)(2)(C) and “ignored its responsibility to only T he petitioner next argues that the trial court d id not give proper

458 - C:5, I(h)(2) (B). costs were reduced by the parties’ shared residential responsibility. See RSA not make sufficient findings to support its conclusion that the petitioner’s fixed reduced her other fixed costs. Accordingly, we conclude that the trial court did shared residential responsibility reduced the cost of the petitioner’s housing or children, which is arguably a fixed cost, it did not e xplain how the parties’ costs. Although the trial court noted that each party provides housing for the for certain variable expenses resulted in a reduction of the petitioner’s fixed The trial court did not explain ho w the parties’ di vision of responsibility p. 7 7

of Martel & Martel, 15 p. 7 7 N.H. 53, 56 (2008). reasonably be made on the evidence presented, they will stand. In the Matter exercise of discretion or an error of law. Id. If the court’s findings can overturn a trial court’s decision on these ma tters absent an unsustainable Matter of Geraghty & Geraghty, 169 N.H. 404, 417 (2016). We will not matters of property distribution when fashioning a final divorce decree. In the marital estate. The trial court is afforded broad discretion in determining We next a ddress the p arties’ arguments regarding the division of the

II. Property Division

vacate the trial court’s child supp ort determination. necessary... to avoid an unjust or inappropriate result”). Accordingly, we not make a finding “to show why a departure from the guidelines [was] at 465 - 66 (vacating trial court’s order dev iating from guidelines because it did unjust or inappropriate result. See RSA 458 - C:4, II; see also Forcier, 152 N.H. not explain why a departure from the guidelines was necessary to avoid an grounds for the deviation, the court’s findings were insufficient because it d id court reference d the factors in its order, w e conclude that, as to all three I(h)(2) are neither mandatory nor exclusi ve, and despite the fact that the trial record.” RSA 458 - C:4, II. Although the factors enumerated in RSA 458 - C:5, deviation from the guidelines, the trial court make a “specific finding... on the W e disagree. The child support statute requires that, in order to justify a made sufficient findings regarding the statutory factors to support its deviation. The respondent also argue s that we must presume that the trial court

be misplaced. underemployment. W e therefore find the respondent’s reliance upon Lynn to downward deviation from the guidelines upon a findin g of voluntary neither the trial court in Lynn, see id., nor the trial court in this case, based its circumstance justifying a downward deviation from the guidelines.” However, discretion to consider the [petitioner’s] voluntary underemployment as a special Lynn & Lynn, 158 N.H. 615, 618 (2009), that “[i]t was within the court’s trial court’s deviation. T he respondent argues, relying upon In the Matter of We now turn to the respondent’s additional arguments in support of the

to justify a deviation under subparagraph I(h)(2)(C). supplies. Therefore, we conclude that the trial court made in sufficient findings cover ing other child rearing expe nses, such as food, clothing, and school mortgage payment s, property taxes, utilities, and insurance, in addition to afford the costs associated with h ome and business ownership, including petitioner’s income and her expenses demonstrates that she will not be able to these estimated monthly expenses at the final hearing. The gap between the p. 8 8

occupancy of the property.” Because t hese findings are supported by the [was] no evidence of repayment of these loans; rather the [parents] have taken existence of this alleged ‘loan’ in their initial financial affidavits”; and “there [was] informed of a ‘loan’ by a third party”; neither party “document[ed] the the banking institution which provided a mortgage on the parti es[’] property the loan, etc.”; “there was no specific documentation provided indicating that indicating the identity of the borrower(s), the terms of the loan, the purpose of factual findings: “[t]here was no docume ntation of these [alleged] loans the [parents].” T he trial court reached its conclusion after making the following marital estate as neither party ha[d] ‘an enforceable legal obligation’ to repay contributions “were not ‘loa ns’ which would constitute a debt chargeable to the division of the marital estate because it concluded that the parents’ financial obligation). Here, the trial court did not consider the purported debt in its r epayment of debt would represent satisfaction of a moral, not legal, estate where there was evidence upon which trial court could conclude that 57 (197 p. 8 8) (upholding trial court’s exclusion of purported debt from marital Chamberlin, 155 N.H. 13, 16 (2007); see also Azzi v. Azzi, 118 N.H. 653, 656 - 425, 437 (2006), overruled on other grounds by In the Matter of Chamberlin & chargeable to the marital estate. In the Matter of Harvey & Harvey, 153 N.H. opposed to a legal obligation — cannot properly be characterized as a debt We have rec ognized that a “moral” obligation for repayment — a s

did no t err in rejecting this premise. have a legal obligation to repay the parents. We conclude that the trial court notion that t he trial court erred because it concluded that the parties did not how the trial court erred; ho wever, all of her arguments are premise d upon the awarded to the respondent. The petitioner makes numerous arguments as to been reduced, which, in turn, would have reduced the amount of property e ncumbrance, the value of the property awarded to the petitioner would have that, had the trial court properly deemed the parents’ contributions to be an repayment, it erroneously overvalued the equity in the property. She argues parents’ financial contributions as giving rise to only a moral obligation for The petitioner argues that, because the trial court mischaracterized the

to the marital estate. the parents, it would not regard the parents’ investment as a debt chargeable determined that, because the parties did not have a legal obligation to repay legal implication of the parents’ investment. In its final order, the trial court property tha t added to the property’s value.” However, they d isagreed as to the petitioner’s parents gave the parties funds that were “an investment in the secured by the marital property. T he parties also stipulated that the property was $550,000, and that a mortgage of approximately $309,000 was marital estate would be awarded to the petitioner, that the value of the At the final divorce hearing, the parties agreed that real estate in the

A. Valuation of real esta te p. 9 9

453 (2003). N.H. at 417 - 18; In the Matter of Watterworth & Watterworth, 14 p. 9 9 N.H. 442, that the trial court unsus tain ably exercised its discretion. See Geraghty, 169 written reasons for the division of property which it orders”). W e cannot say (a) - (c), (f); see also RSA 458:16 - a, IV (2004) (requiring the court to “specify their abilitie s to secure additional assets in the future. See RSA 458:16 - a, II business; the parties’ education, health, and ability to support themselves; and contributions to the growth of common assets, including their real estate and specifically discu ssed the length of the marriage; the parties’ respective record supports this determination. Further, in its order, t he tria l court anything other than an equal division of assets to the extent. .. possible.” The be considered under RSA 458:16 - a” and found “no articulable reason to order In its order, t he trial court stated that it “look[ed] at each of the factors to

fa ctors or give them equal weight. S ee Geraghty, 16 p. 9 9 N.H. at 417. 154 N.H. 426, 431 (2006). T he court need not consider all of the enumer ated relevant, see RSA 458:16 - a, II(o); see also In the Matter of Sarvela & Sarvela, 458:16 - a, II, and also permits the court to consider any other factor it deems omitted). The statute lists factors that the cou rt may consider, s ee RSA of the factors designated in the statute.” Geraghty, 169 N.H. at 417 (quotation equitable unless the trial court decides otherwise after considering one or more discretion. Unde r RSA 458:16 - a, II, “an equal division of property is presumed we agree with the respondent that the trial court sustainably exercise d its Assuming, without deciding, that the petitioner’s a rgument is not waived,

equitable. II factors, and, under the statute, an equal distribution i s presumptively marital property because the trial court considered each of the RSA 458:16 - a, the trial court sustainably exercise d its discretion when it equally divided the in the petitioner’s notice of appeal. On the merits, the respondent argues that counters that the petitioner’s argument is waived because it was not included more in retirement savings. See RSA 458:16 - a, II (b) - (c), (g), (i). T he respondent business”; and (4) at the time of the divorce, the respondent had significantly care demands and the parties’ decision to start a bed and breakfast home (3) the petitioner’s “career was interrupted and then terminated due to child cover her living expenses or to allow her to acquire capital assets in the future; twice what [the petitioner’s] are or will be”; (2) her earnings are insufficient to employer - provided benefi ts “have always been and will likely continue to be distribution was not equitable because: (1) the respondent’s earnings and equal distribution of the marital estate. Specifically, she contends that the T he petitioner also argues that the trial court erred when it made an

B. E qual distribution of marital estate

discretion. See Harvey, 153 N.H. at 437; Azzi, 118 N.H. at 656 - 57. record, we cannot conclude that the trial court unsustainably exercised its p. 10 10

Although the petitioner argues, in part, that the trial court failed to rule upon copy of th e trial court’s or der on the petitioner’s motion for contempt. withdrawing funds from the account. Nor does the record on appeal include a copy of the trial cour t’s order that she claims the respondent violated by The petitioner has not provided us with a copy of her motion for contempt, or a Red Oak Prop. Mgmt., 15 1 N.H. 248, 250 (2004); see also Sup. Ct. R. 13(2). this court with a record sufficient to decide her issues on appeal....” Bean v. “It is the burden of the appealing party, here the [petitioner], to provide

respondent. provided us a sufficient record to decide the issue. We agree with the counters that we should reject the petitioner’s argument because she has not action on [he r] motion,” and by fa iling to find him in contempt. The respondent The petitioner argues that the trial court erred by “fail[ing] to take any

contempt. There is no evidence in the record that the court found the respondent in account,” it did not award the balance of the 529 account to the petitioner. tax, fees or penalties asso ciated with the withdrawals he made from the divorce. Although the court ruled that the respondent was “responsible for any removed one half of the funds from the 529 account during the pendency of the was unable to meet his ongoing financial expenses,” the respondent had testified about his withdrawal of funds, the trial court found that, because “he the necessities of life”). After the final divorce hearing, at which the respondent of any property, real or personal, except in the usual course of business or for transferring, encumbering, hypothecating, concealing or in any way d isposing discretion, issue a temporary restraining order “[e]njoining any party from (providing that, after the filing of a divorce, trial court may, within its account, th e respondent had violated a court order. Cf. RSA 458:16, I(g) (2004) motion for contempt, claiming that, by withdrawing funds from the 529 respondent’s name. Prior to the final divorce hearing, the petitioner filed a that was es tablished for the parties’ daughter’s benefit and held in the Finally, we address the pa rties’ arguments regarding the 529 account

III. 529 Account

State v. Blackmer, 149 N.H. 47, 49 (2003). that the petitioner has fully briefed, we deem these arguments waived. See support of her position. Because we con fine our review to only those issues an argument as to why those rulings were in error or point to any authority in “refused to allow” her to introduce certain evidence, but she does not develop parties’ real estate. T he petitioner merely asserts that the court erred when it introduction of certain evidence related to the parents’ contribution to the The petitioner next argues that the trial court erred when it prohibited

C. Evidentiary rulings p. 11 11

LYNN, C.J.