2021-0302, In the Matter of Philip Borelli and Catherine Borelli

instant appeal are as follows: incorporated numerous standing orders. The standing orders relevant to the ranged fro m nine years old to fifteen years old as of May 2014. The USO $2,400 in monthly child support for the parties’ four children, who se ages 2014. Their uniform support order (USO) required Husband to pay Wife content of documents in the appellate record. The parties divorced in May The following facts either were found by the t rial court or reflect the

lacked authority to modify retroactively. We affirm. Catherine Borelli (Wife), a child support arrearage, which the court ruled that it the Circuit Court (Countway, J.) determining that he owes the respondent, HICKS, J. T he petitioner, Philip Borelli (Husband), appeals an order of

Catherine Borelli, self - represented party, on the brief.

Diana G. Bolander, of Wolfeboro, on the brief, for the petitioner.

No. 2021 - 0302 3rd Circuit Court - Ossipee Family Division

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

children. Husband averred in his petition that he sought to modify child that time, he was obligated to provide child support for only the two youn gest In January p. 2 2020, Husband filed a petition to modify child support. At

or submitted it to the court for approval. she did agree to it, neither she nor Husband reduced the agreement to writing support, she did not seek court intervention on the issue. To the extent that Wife’s concurrence. To the extent that Wife did not agree to the reduced $600 (one - fourth of $ p. 2 2,400). The parties dispute whether Husband did so with of child support, Husband reduced the amount of child support that he paid by old, became ineligible for child support. Nonetheless, a s each child “aged out” obligation for the remaining children when the parties’ eldest, their fifteen - year - The USO did not specify the amount of Husband’s new child sup port

specified without further legal action. stated in the order and shall take effect on the date or event the new child support obligation for the remaining children may be years support will terminate for one of the children, the amount of one child, and if the court can determine that within the next 3 SO - 4C: If the order establishes a support obligation for more than

the time of emancipation. any and all arr earages of the support obligation that may exist at upon petition of any party. . . . The obligor remains obligated for change in the number of children for whom support is ordered, be recalculated according to the guidelines whenever there is a SO - 4B: In multiple child orders, the amount of child support may

obligation . . . terminates without further legal action . . . . member of the armed services, at which time the child support age of 18 years, whichever is later, or marries, or becomes a ordered completes h is or her high school education or reaches the stated in the order until the dependent child for whom support is SO - 4A: The amount of a child support obligation shall remain as

modification. RSA 461 - A:14, VIII. arrearages due prior to the date of filing the pleading for SO - 3D: No modification of a support order shall alter any

. . . .

RSA 458 - C:7. be no earlier than the date of notice to the other party. . . . See in circumstances. The effective date of any modification shall modification of thi s support order if there is a substantial change SO - p. 3 3C: . . . Any party may petition the Court at any time for a 3

arrearage. Id. at 620, 625. We reversed. Id. at 625. child support obligation to 2014, thereby reducing the total amount of his retroactive to June 2014. Id. The trial court retroactively modified the father’s support. Id. In 2016, the father sought to modify his child support obligation graduated from high school, and, therefore no longer qualified for child support obligation in 2010. I d. In June 2014, the parties’ older child required to pay $1, p. 3 314 in monthly child support; the trial court modified his were minors. White & White, 170 N.H. at 620. At that time, the father was The parties in White & White divorced in 2003 when their two children

the trial court correctly applied White & White to this case. child support arrearage was accrued before it was decided. We conclude that from this case and that, in any event, it does not apply because part of his On appeal, Husband first argues that White & White is distinguis hable

Shepherds Hill Proponents, LLC, 17 p. 3 3 N.H. 314, 319 (2020). application of law to the facts de novo as well. Balzotti Global Grp., LLC v. interpretation de novo. I d. We review the trial court’ s legal rulings and its that we interpret pertinent stat utes, we review the trial court’ s statutory Id. at 479. However, to the extent that resolving a modification issue requires upon us if they are supported by the evidence and are not legally erroneous. 172 N.H. 474, 47 8 - 7 9 (2019). The trial court’s factual findings are binding could reasonably have been made. See In the Matter of Summers & Summers, judgment made, and we w ill not disturb the trial court’ s determination if it the record establishes an objective basis sufficient to sus tain the discretionary unsustainable exercise of discretion standard of review, we review only whether unsustainable exercise of discretion or an error of law. Id. Under our We w ill not disturb the trial court’ s rulings regarding child support absent an support orders. In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 140 (2020). Trial courts have broad discretion in reviewing and modifying child

unsuccessfully moved for reconsideration, and this app eal followed. Husband owed “an arrearage as of February 2020 of $50,420.” Husband it lacked the authority to alter the arrearage retroactively, and, therefore, statutes as interpreted i n In the Matter of White & White, 170 N.H. 619 (2018), [Wife]” in February 2020. The court ruled that, pursuant to the pertinent and owing in the amount of $2400 until the current petition was served on never filed with and approved by the court, “child support continued to be due agreement was without effect. B ecause the parties’ alleged agreement w as parties had agreed to modify ch ild support, but ruled that their alleged Following a hearing on offers of proof, the trial court assumed that the

the parenting plan issue d with the parties’ divorce decree. which is dramatically more parenting time” than had been allotted him under support because the youngest children “are with [him] for the school year [,] p. 4 4

application of the child support guidelines and any special circumstances obligation is not based solely upon the num ber of children, but based upon an to the court f or modification of such order.” Id. We observed that “the support obligation for the remaining unemancipated children. . ., a parent must apply more than one child, but does not specify the amount of a new child support p. 4 461 - A:14, IV). However, “when an order establishes a support obligation for ‘without further legal action.’” White & White, 170 N.H. at 622 (quoting RSA termination of that support obligation unde r the enumerated circumstances establishes a support obligation for one child, RSA 461 - A:14, IV allows for the Reading these provisions together, we concluded “that when an order

Id. at 622 (quoting RSA p. 4 461 - A:14, IV - a); see RSA 461 - A:14, IV - a (2018).

p. 4 458 - C:7.” purposes of modification of the c hild support order under RSA paragraph IV is a substantial change of circumstances for Termination of support for any one of the children under effect on the date or event specified without further legal action. the remaining children may be stated in the order and shall take paragraph IV, the amount of the new child support obligation for years support will terminate for one of the children as provided in one child, and if the court can determine that within the next 3 “If the order establishes a s upport obligation for more than

that RSA p. 4 461 - A:14, IV - a provides: White & White, 170 N.H. at 621 (quoting RSA 461 - A:14, IV). And, we observed

. . . terminates without further legal action.” whi chever is later . . . at which time the child support obligation his or her high school education or reaches the age of 18 years, until the dependent child for whom support is ordered completes “of a child support obligation shall remain as stated in the order

We noted that RSA p. 4 461 - A:14, IV provides that the amount

Id.; see RSA p. 4 461 - A:14, IV (2018) (amended 2019). recalculated the amount of arrearages based upon the date of termination.” child terminated without further legal action and, therefore, the court merely older child became emancipa ted in July 2014, his support obligation for that Rather, “he maintain[ed] that, pursuant to RSA 461 - A:14, IV, when the parties’ did not modify his child support obligation. White & White, 170 N.H. at 621. neither RSA 461 - A:14, VIII nor RSA 4 p. 5 58 - C:7, II applied because the trial court RSA 461 - A:14, VIII (2018); RSA 458 - C:7, II (2018). The f ather argued that arrearage, contrary to RSA 461 - A:14, VIII and RSA 458 - C:7, II. See id. at 621; support obligation, the trial court altered a previously - accrued child support The m other argued that, by retroactively modifying the f ather’s child 5

provides: See In the Matter of Laura & Scott, 161 N.H. 333, 336 (2010). RSA 4 p. 5 58 - C:4, IV agreement was unenforceable because it was never approved by the court. and there was no such agreement in White & White. However, any such White because, here, the parties agreed to modify his child support obligation, Husband also argues that this case is distinguishable from White &

decided in White & White and their application to this case. this factual difference between the two cases is immaterial to the legal issues the requested modification in White & White was similarly based. However, upon a change in the parties’ parenting schedule and there is no evidence that part, because his request to modify his child support obligation was based from White & White. Husband argues that the cases are distinguishable in We are unpersuaded by Husband’s attempts to distinguish this case

served on Wife. See id. until February 2020, when his petition to modify his suppor t obligation was correctly ruled, Husband was required to pay $2,400 in monthly chil d support ineligible for support. Id. Under these circumstances, as the trial court specify a new child support obligation when the parties’ eldest child became child. Id. The USO in this case, like the USO in White & White, failed to the USO in White & White, established a support obligation for more than one thereby, to alter the arrearages that he owed. Id. The USO in this case, like discretion to mo dify Husband’s child support obligation retroactively and, Like the trial court in White & White, the trial court in this case lacked The principles that we articulated in White & White are dispositive here.

(quoting RSA 461 - A:14, VIII). retroactively to 2014 and, thereby, to alter the arrearages that he owed. Id. the trial court lacked discretion to modify the father’s child support obligation alter any arrearages due prior to the date of filing the motion for modification,’” because, und er RSA 461 - A:14, VIII, “‘[n]o modification of a support order shall modification” of the USO. Id. (citation omitted). We further explained that emancipation. Rather, the Father was required to apply to the court for the Father’s support obligation did not change . . . upon the older child’s when the parties’ older child became ineligible for child support, “the amount of Because the parties’ USO did not specify a new child support obligation

of child su pport under RSA 4 p. 5 58 - C:7. Id. RSA 4 p. 6 61 - A:14, IV - a, or in a new support order upon a motion for modification for the remaining children,” either in the original support order as set forth in makes sense to require the court to specify the new support obligation amount an order establishes a child support obligation for more than one ch ild, it raised by the parties or by the court.” Id. at 623. Thus, we reasoned, “when 6

authority to modify his arrearage retroactively. We disagree. Husband next asserts that, nonetheless, the trial court had equitable

accrued in 201 p. 6 6, our holding in White & White applies to this case. See id. id. And, because they were all enacted before Husband’s arrearage first 458 - C:7, II applies from the effective date of those versions of the statutes. See ruling in White & White interpreting RSA 461 - A:14, IV, IV - a, VIII, and RSA what it should have always been.” Id. (quota tion omitted). Therefore, our N.H. 609, 611 (2007). “By saying what the law is, the court says, in effect, legislation from the time of its enactment.” In the Matter of Cole & Ford, 156 N.H. at 621 - 23. “Ju dicial construction of a statute becomes part of the accrued. See RSA 461 - A:14, IV, IV - a, VIII; RSA 458 - C:7, II; White & White, 170 provisions, all o f which were in effect in 2016 when Husband’s arrearage first Second, in White & White, we simply interpreted four statut ory

decided it in 2018. Id. “retroactively to all cases pending and to all events arising before or after” we question for a later date. Accordingly, our holding in that case applies limited our holding to prospective application nor reserved the retroactivity Northumberland, 149 N.H. 728, 730 (2003). In White & White, we neither arising before or after the date of the decision.” Lee James Enters. v. Town of the new rule will be applied retroactively to all cases pending and to all events retroactivit y question for a later date when we establish a n ew rule of law, then First, o ur settled rule is that “if we do not expressly de cide or reserve the

Husband is mistaken for two reasons. 2 01 p. 6 6, before we decided White & White in 2018, White & White does not apply. We reject Husband’s assertion that because his arrearage first accrued in

pri vate agreement.” Id. from the trial court,” and “[p]arties may not modify orders of the court through Scott, 1 p. 6 61 N.H. at 336. Moreover, a “child support award is a stand ing order of any agreement that departs from the child support guidelines.” Laura & RSA 458 - C:4, IV (2018). RSA 458 - C:4, IV “explicitly requires judicial approval

supporting such finding. th e guidelines would be inappropriate or unjust and state the facts finding or a specific finding on the record that the application of 458 - C:5, and in certifying the agreement shall enter a written unjust in such particular case, using the criteria set forth in RSA whether the a pplication of the guidelines would be inappropriate or child support] guidelines . . . , the presiding officer shall determine agreement between the parties, and not made according to [the When arrangements for child support are delineated in an p. 7 7

or mistake, unmixed with any fraud or negligence on their part.”). and of which they were prevented from availing themselves by fraud, accident, mistake, which renders it against conscience to execute the decree they attack, seek, there must be some substantial ground, such as fraud, accident, or Hollings, p. 7 73 N.H. 495, 502 (1906) (“To entitle the plaintiffs to the relief they vacating their decree was required becau se they had reconciled); Knight v. not argue fraud, accident, mistake, or misfortune, but rather argued that that it lacked authority to vacate the parties’ divorce decree where parties did McCarron, 168 N. H. 37 2, 375 - 76 (2015) (upholding trial court’s determination accident, mistake, or misfortune. See, e.g., In the Matter of H arman & ground, outside a party’s control, amounting to good cause, such as fraud, generally, lack authority to modify judgments absent proof of some substantial Matter of Giacomini & Giacomini, 151 N.H. 775, 777, 779 (2005). Trial courts, payable.” RSA 461 - A:14, VI (2018); see Cole & Ford, 156 N.H. at 610; In the under [RSA] chapter [461 - A] shall be deemed ju dgments when due and Further, by statute, “[a] ll support payments ordered . . . by the court

to alter a child support arrearage retroactively. matters, according to the statutes governing such matters, it has no authority Therefore, although the circuit court sits as a court of equity in divorce prior to the date of filing the motion for modification,” RSA 461 - A:14, VIII. by statute, “[n]o modification of a support order shall alter any arrearages due to the other party,” White & White, 1 p. 7 70 N.H. at 623; see RSA 458 - C:7, II, and, has no authority “to modify any child s upport order beyond the date of notice distribute only property that belongs to the divorcing parties). The circuit court court sits as a court in equity in divorce matters, RSA 458:16 - a allows it to invalidate a mortgage int erest belonging to a third party because, although the statutes. See id. at 517 - 18 (deciding that divorce court lacked jurisdiction to may only exercise its equitable authority consistently with its governing Although the circuit court acts as a court of equity in divorce matters, it

51 p. 8 8 (2013). things, . . . orders of support.” In the Matter of Muller & Muller, 164 N.H. 512, overall scheme of the relevant divorce statutes governs issues of, among other 629 (2018) (quotation and citation omitted); see RSA 490 - D:3 (2010). “[T]he exercising this jurisdiction.” Estate of Mortner v. Thompson, 1 p. 7 70 N.H. 625, legislature has afforded the [circuit court] the powers of a court in equity in render equitable orders is inherent in the resolution of divorce matte rs, the where it has exclusive subject matter jurisdiction). “Because the need to the judicial branch family division shall be deemed to be to the circuit court RSA 490 - D:2, I (2010); RSA 490 - F:18 (Supp. 2 021) (references in statutes to for divorce. See In the Matter of O’Neil & O’Neil, 159 N.H. 615, 622 (2010); jurisdiction conferred by statute in certain discrete areas, including petitions The circuit cour t is a court of limited jurisdiction, with exclusive 8

JJ., concurred. M AC DONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,

expenses” without prejudice to her seeking this relief in the trial court. with [Wife] as trustee or in a 529 in the children’s names to offset educational that we order Husband to “place the full arrearage amount in educational trust motion for such fees under Supreme Court Rule 23. We deny Wife’s request deny Wife’s request for appellate attorney’s fees without prejudice to her filing a 2021). For all of the above reasons, we uphold the trial court’s decision. We 45 p. 8 8 - C:5 to determine the amount of that arrearage. See RSA 458 - C:5 (Supp. assertion that the trial court should have used the factors enumerated in RSA the child support arrearage retroacti vely, we necessarily reject Husband’s Finally, having determined that the trial court lacked authority to alter

agreement to vacate the decree). authority to vacate their divorce decree based solely on their reconciliation and Cf. id. at 375 - 76 (rejecting the parties’ argumen t that the trial court had insufficient as a matter of law to modify Husband’s child support arrearage. children would live with him for a period of time. These grounds are action was required to modify support; and the parties agreed that the younger parties agreed to modify the support; his lawyer did not tell him that court which he relies to argue that his arrearage should be modified are that: the arrearage. See Harman & McCarr on, 16 p. 8 8 N. H. at 375. The only grounds upon Husband does not assert any of these grounds for modifying his