In the Matter of Vivian Silva and Robert Silva
In the Matter of Vivian Silva and Robert Silva
Opinion
In these consolidated appeals, the petitioner, Vivian Silva, appeals two orders of the Circuit Court (
Introcaso
, J.) in her divorce from the respondent, Robert Silva. She argues that the trial court erred when it: (1) deviated from the child support guidelines,
see
RSA 458-C:5 (Supp. 2017) ; (2) inequitably divided the marital estate,
see
RSA 458:16-a, II (2004); and (3) did not find the respondent in contempt for withdrawing funds from an education savings account, or "529 account," established for their daughter's benefit, during the pendency of the divorce, and did not consider the 529 account in its division of the marital estate,
see
The record supports the following facts. In July 2016, following a final divorce hearing, the trial court granted the parties a divorce based upon irreconcilable differences. In the final divorce decree, the trial court ordered an equal division of the marital assets based upon a consideration of the factors outlined in RSA 458:16-a. By agreement of the parties, the petitioner was awarded the parties' real estate, where the parties had resided and operated a bed and breakfast. The trial court awarded other assets to the respondent to equalize the award.
The parties' final divorce decree also included an agreed-upon parenting plan regarding the parties' two children, which provided that the parties "shall have equal or approximately equal residential responsibility." At the time the trial court entered the final divorce decree, it also entered a temporary Uniform Support Order regarding child support. In that temporary order, it denied the respondent's request to deviate from the child support guidelines, and ordered him to pay full child support to the petitioner.
Subsequently, the trial court held a final child support hearing and issued a final order. The court ordered a downward deviation *288 from the child support guidelines, thereby reducing the respondent's child support obligation from $1,590.00 per month to $533.80 per month. See RSA 458-C:5, I. The trial court justified the adjusted support obligation on three grounds related to the parties' shared parenting schedule. See RSA 458-C:5, I(h)(2). The petitioner filed motions to reconsider the property distribution order and the final child support order, both of which were denied. These appeals followed.
I. Child Support
The petitioner first argues that the trial court erred when it deviated from the child support guidelines based upon the parties' shared parenting schedule. We agree.
We will not disturb the trial court's rulings regarding child support absent an unsustainable exercise of discretion or an error of law.
In the Matter of Laura & Scott
,
New Hampshire's child support guidelines, codified in RSA chapter 458-C (2004 & Supp. 2017), establish a uniform system to determine the amount of child support awards.
Laura
,
RSA 458-C:5, I, includes a non-exclusive list of special circumstances that, if raised by a party or the court, the court shall consider in making an adjustment that deviates from the child support guidelines. RSA 458-C:5, I. Although this list is non-exclusive, we have interpreted "special circumstances" as including only circumstances that are "economic in nature and relate to the impact of a parent's financial condition upon his or her ability to meet a child's needs."
In the Matter of Carr & Edmunds
,
RSA 458-C:5 expressly identifies the parties' parenting schedule as a special circumstance. RSA 458-C:5, I(h). However, the statute provides that "[e]qual or approximately equal parenting residential responsibilities in and of itself shall not eliminate the need for child support and shall not by itself constitute ground for an adjustment ." RSA 458-C:5, I(h)(1) (emphases added). The statute further provides that, in considering requests for adjustments *289 to the application of the child support guidelines based upon the parenting schedule, the court "may" consider three factors:
(A) Whether, in cases of equal or approximately equal residential responsibility, the parties have agreed to the specific apportionment of variable expenses for the children, including but not limited to education, school supplies, day care, after school, vacation and summer care, extracurricular activities, clothing, health insurance costs and uninsured health costs, and other child-related expenses.
(B) Whether the obligor parent has established that the equal or approximately equal residential responsibility will result in a reduction of any of the fixed costs of child rearing incurred by the obligee parent.
(C) Whether the income of the lower earning parent enables that parent to meet the costs of child rearing in a similar or approximately equal style to that of the other parent.
RSA 458-C:5, I(h)(2)(A)-(C).
The trial court justified the respondent's adjusted child support obligation on three grounds related to the factors enumerated in RSA 458-C:5, I(h)(2). The petitioner challenges all three grounds for the trial court's decision. The petitioner first argues that the trial court erred because there was "no factual basis" for its adjustment under subparagraph I(h)(2)(A). The respondent counters that the trial court's deviation was sustainable because it apportioned "the majority of financial responsibility for several child-related expenses" to the respondent, and it specified written reasons justifying the deviation. We agree with the petitioner.
Here, the trial court justified its deviation from the guidelines not upon the parties' agreement to apportion variable expenses, but rather, upon its own apportionment of expenses. Cf . RSA 458-C:5, I(h)(2)(A). Neither party asserts that the trial court erred when it considered its own apportionment of expenses-as opposed to an apportionment of expenses agreed to by the parties-as a special circumstance under RSA 458-C:5, I(h)(2). Accordingly, for the purposes of this appeal, we assume that a court-ordered apportionment of expenses is a special circumstance that may be considered pursuant to RSA 458-C:5, I(h)(2). Nonetheless, we conclude that the trial court's findings were insufficient to justify a deviation.
The court found that, during his parenting time the respondent assumed the cost of child care, sustenance, transportation, clothing, and other variable expenses. In addition to these costs assumed by the respondent, the court apportioned to him two-thirds of the cost of school supplies and seventy-five percent of the cost of health insurance deductibles and co-pays. It also required him to pay seventy-five percent of the cost of any extracurricular activities and summer programs for the children, subject to the condition that both parties agree to the activity or program. The trial court further provided that each party is responsible for all child care costs and vacation costs incurred during their respective parenting times.
The trial court did not analyze the economic consequences of its apportionment of variable expenses or the respondent's assumption of responsibility for other variable expenses, or explain how the division of expenses made the application of the guidelines "unjust or inappropriate." RSA 458-C:4, II;
see
Forcier
,
The petitioner also argues that the trial court erred when it made a downward deviation because there was no "proof of [a] reduction in [her] fixed costs of child rearing." See RSA 458-C:5, I(h)(2)(B). The respondent counters that the trial court's deviation from the guidelines under subparagraph I(h)(2)(B) was a sustainable exercise of discretion because the court gave written reasons for the deviation, including that the respondent has assumed full responsibility for child care, transportation, and other costs incurred during his parenting time. We agree with the petitioner.
In its final order, the trial court found that the parties' shared parenting schedule "has resulted in a reduction of the fixed costs of child rearing incurred by the [petitioner] in that the [respondent] takes full responsibility for child care, sustenance, transportation and all other costs for the children during his parenting time."
See
RSA 458-C:5, I(h)(2)(B). It further noted that "[b]oth parents provide living arrangements, clothing and other items for the children." However, the trial court did not find that any of the petitioner's fixed costs were reduced because of the parties' shared residential responsibility. Indeed, with the exception of housing, the expenses that the trial court discussed are either explicitly referred to in the statute as "variable expenses," or are akin to the enumerated variable expenses.
See
RSA 458-C:5, I(h)(2)(A) (referring to "variable expenses for the children" as "including but not limited to education, school supplies,
day care
, after school, vacation and summer care, extracurricular activities,
clothing
, health insurance costs and uninsured health costs, and other child-related expenses" (emphases added) );
see also
Webster's Third New International Dictionary
2533 (unabridged ed. 2002) (defining "variable cost" as a "cost that fluctuates directly with changes in output"). The statute does not define "fixed costs" as used in RSA 458-C:5, I(h)(2)(B).
See
RSA 458-C:2 (Supp. 2017) (defining terms used in RSA chapter 458-C). Accordingly, principles of statutory interpretation dictate that the term mean something different than the term "variable expenses" as used in the same statute.
See
Ettinger v. Town of Madison Planning Bd.
,
The trial court did not explain how the parties' division of responsibility for certain variable expenses resulted in a reduction of the petitioner's fixed costs. Although the trial court noted that each party provides housing for the children, which is arguably a fixed cost, it did not explain how the parties' shared residential responsibility reduced the cost of the petitioner's housing or reduced her other fixed costs. Accordingly, we conclude that the trial court did not make sufficient *291 findings to support its conclusion that the petitioner's fixed costs were reduced by the parties' shared residential responsibility. See RSA 458-C:5, I(h)(2)(B).
The petitioner next argues that the trial court did not give proper consideration to RSA 458-C:5, I(h)(2)(C) and "ignored its responsibility to only deviate from the guidelines when the obligee can maintain a home and lifestyle environment for the children during her parenting periods comparable to [the] obligor." The respondent counters that the trial court's deviation from the guidelines was a sustainable exercise of discretion because it justified the deviation in writing, explaining that the petitioner had been awarded the marital home. Again, we agree with the petitioner.
The trial court stated that it was "confident" that the petitioner's income, including self-employment wages, alimony, and rental income, "enables her to meet the costs of child rearing in a similar or approximately equal style to that" of the respondent. See RSA 458-C:5, I(h)(2)(C). In support of this statement, the court observed that, as a result of her business, the petitioner "has the privilege of a generous and comfortable living environment for the children ... in an upscale, safe community" and that "[h]er home combined with her other financial resources assure that the children will reside in a style similar to that affordable to" the respondent.
We conclude that the trial court made insufficient findings to support its conclusion. The record demonstrates that the petitioner's adjusted gross monthly income plus child support, is $2,872, which is significantly less than the respondent's adjusted gross monthly income minus his support obligation, which is $6,913. Despite this disparity, the trial court reasoned that the petitioner's financial resources and home ownership ensure that the children will reside with her in a style similar to that of the respondent. We realize that the petitioner, and by extension, the children, benefit from the petitioner's home and business property because they provide a safe and comfortable living environment. However, the record demonstrates that the petitioner's adjusted gross monthly income, plus child support, is insufficient to enable her to continue to meet the costs of child rearing in a style that is approximately equal to that of the respondent. See RSA 458-C:5, I(h)(2)(C).
The petitioner's adjusted gross monthly income plus the reduced child support payment ordered by the court-$2,872-falls well short of her estimated monthly expenses-$4,370. The respondent did not challenge these estimated monthly expenses at the final hearing. The gap between the petitioner's income and her expenses demonstrates that she will not be able to afford the costs associated with home and business ownership, including mortgage payments, property taxes, utilities, and insurance, in addition to covering other child rearing expenses, such as food, clothing, and school supplies. Therefore, we conclude that the trial court made insufficient findings to justify a deviation under subparagraph I(h)(2)(C).
We now turn to the respondent's additional arguments in support of the trial court's deviation. The respondent argues, relying upon
In the Matter of Lynn & Lynn
,
The respondent also argues that we must presume that the trial court made sufficient findings regarding the statutory factors to support its deviation. We disagree. The child support statute requires that, in order to justify a deviation from the guidelines, the trial court make a "specific finding ... on the record." RSA 458-C:4, II. Although the factors enumerated in RSA 458-C:5, I(h)(2) are neither mandatory nor exclusive, and despite the fact that the trial court referenced the factors in its order, we conclude that, as to all three grounds for the deviation, the court's findings were insufficient because it did not explain why a departure from the guidelines was necessary to avoid an unjust or inappropriate result.
See
RSA 458-C:4, II;
see also
Forcier
,
II. Property Division
We next address the parties' arguments regarding the division of the marital estate. The trial court is afforded broad discretion in determining matters of property distribution when fashioning a final divorce decree.
In the Matter of Geraghty & Geraghty
,
A. Valuation of real estate
At the final divorce hearing, the parties agreed that real estate in the marital estate would be awarded to the petitioner, that the value of the property was $550,000, and that a mortgage of approximately $309,000 was secured by the marital property. The parties also stipulated that the petitioner's parents gave the parties funds that were "an investment in the property that added to the property's value." However, they disagreed as to the legal implication of the parents' investment. In its final order, the trial court determined that, because the parties did not have a legal obligation to repay the parents, it would not regard the parents' investment as a debt chargeable to the marital estate.
The petitioner argues that, because the trial court mischaracterized the parents' financial contributions as giving rise to only a moral obligation for repayment, it erroneously overvalued the equity in the property. She argues that, had the trial court properly deemed the parents' contributions to be an encumbrance, the value of the property awarded to the petitioner would have been reduced, which, in turn, would have reduced the amount of property awarded to the respondent. The petitioner makes numerous arguments as to how the trial court erred; however, all of her arguments are premised upon the notion that the trial court erred because it concluded that the parties did not have a legal obligation to repay the parents. We conclude that the trial court did not err in rejecting this premise.
We have recognized that a "moral" obligation for repayment-as opposed to a legal obligation-cannot properly be characterized as a debt chargeable to the marital estate.
In the Matter of Harvey & Harvey
,
B. Equal distribution of marital estate
The petitioner also argues that the trial court erred when it made an equal distribution of the marital estate. Specifically, she contends that the distribution was not equitable because: (1) the respondent's earnings and employer-provided benefits "have always been and will likely continue to be twice what [the petitioner's] are or will be"; (2) her earnings are insufficient to cover her living expenses or to allow her to acquire capital assets in the future; (3) the petitioner's "career was interrupted and then terminated due to child care demands and the parties' decision to start a bed and breakfast home business"; and (4) at the time of the divorce, the respondent had significantly more in retirement savings. See RSA 458:16-a, II(b)-(c), (g), (i). The respondent counters that the petitioner's argument is waived because it was not included in the petitioner's notice of appeal. On the merits, the respondent argues that the trial court sustainably exercised its discretion when it equally divided the marital property because the trial court considered each of the RSA 458:16-a, II factors, and, under the statute, an equal distribution is presumptively equitable.
Assuming, without deciding, that the petitioner's argument is not waived, we agree with the respondent that the trial court sustainably exercised its discretion. Under RSA 458:16-a, II, "an equal division of property is presumed equitable unless the trial court decides otherwise after considering one or more of the factors designated in the statute."
Geraghty
,
In its order, the trial court stated that it "look[ed] at each of the factors to be considered under RSA 458:16-a" and found
*294
"no articulable reason to order anything other than an equal division of assets to the extent ... possible." The record supports this determination. Further, in its order, the trial court specifically discussed the length of the marriage; the parties' respective contributions to the growth of common assets, including their real estate and business; the parties' education, health, and ability to support themselves; and their abilities to secure additional assets in the future.
See
RSA 458:16-a, II (a)-(c), (f);
see also
RSA 458:16-a, IV (2004) (requiring the court to "specify written reasons for the division of property which it orders"). We cannot say that the trial court unsustainably exercised its discretion.
See
Geraghty
,
C. Evidentiary rulings
The petitioner next argues that the trial court erred when it prohibited introduction of certain evidence related to the parents' contribution to the parties' real estate. The petitioner merely asserts that the court erred when it "refused to allow" her to introduce certain evidence, but she does not develop an argument as to why those rulings were in error or point to any authority in support of her position. Because we confine our review to only those issues that the petitioner has fully briefed, we deem these arguments waived.
See
State v. Blackmer
,
III. 529 Account
Finally, we address the parties' arguments regarding the 529 account that was established for the parties' daughter's benefit and held in the respondent's name. Prior to the final divorce hearing, the petitioner filed a motion for contempt, claiming that, by withdrawing funds from the 529 account, the respondent had violated a court order. Cf . RSA 458:16, I(g) (2004) (providing that, after the filing of a divorce, trial court may, within its discretion, issue a temporary restraining order "[e]njoining any party from transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, except in the usual course of business or for the necessities of life"). After the final divorce hearing, at which the respondent testified about his withdrawal of funds, the trial court found that, because "he was unable to meet his ongoing financial expenses," the respondent had removed one half of the funds from the 529 account during the pendency of the divorce. Although the court ruled that the respondent was "responsible for any tax, fees or penalties associated with the withdrawals he made from the account," it did not award the balance of the 529 account to the petitioner. There is no evidence in the record that the court found the respondent in contempt.
The petitioner argues that the trial court erred by "fail[ing] to take any action on [her] motion," and by failing to find him in contempt. The respondent counters that we should reject the petitioner's argument because she has not provided us a sufficient record to decide the issue. We agree with the respondent.
"It is the burden of the appealing party, here the [petitioner], to provide this court with a record sufficient to decide her issues on appeal ...."
Bean v. Red Oak Prop. Mgmt.
,
The petitioner also argues that the trial court erred in that it either did not consider the 529 account when making its property distribution, or if it did, its property distribution did not comply with RSA 458:16-a, III. RSA 458:16-a, III provides that if either or both parties retain an ownership interest in a 529 account, "the court may, in its discretion, preserve the account for its original purpose or may treat the account as property of the marriage subject to equitable division." RSA 458:16-a, III. The petitioner argues that the trial court erred when it did not treat all of the account funds in the same manner-either as a marital asset subject to equitable distribution, or as preserved for its original purpose. In other words, the petitioner asserts that it was error for the trial court to allow the respondent to retain the withdrawn funds, while also requiring that the remainder of the funds be preserved for their original purpose in the account.
Given the record before us, it is unclear whether the trial court considered the 529 account funds in its property distribution, and if it did, how it disposed of the balance of those funds. In the absence of a clear finding by the trial court as to these matters, we decline to address the parties' arguments on this issue.
See
Carr
,
Vacated and remanded .
LYNN, C.J., and HICKS and HANTZ MARCONI, JJ., concurred.
Reference
- Full Case Name
- In the MATTER OF Vivian SILVA and Robert Silva
- Status
- Published