Thе petitioner, Jane L. Carr (mother), appeals an order of the Superior Court (Barry, J.) approving the recommendation of the Marital Master (Dalpra, M.) establishing the child support obligation for the respondent, James R. Edmunds (father). We reverse and remand.
The record supports the following facts. When the parties were divorced in 2000, they executed a permanent stipulation, which, among other things, аwarded sole legal and physical custody of their two minor, adopted children to the mother. In the stipulation, the parties agreed that “it [wa]s in the best interests of the children that [the father] voluntarily relinquish his parental rights to the children and that [the mother] assume sole responsibility for them.” They also agreed that the father would “forthwith file a Prоbate Court action relinquishing his rights to the children.” The Superior Court (Sullivan, J.) approved the stipulation, but added: “If the probate court does not approve the termination of the [father]’s parental rights, the [mother] shall file a motion within thirty days of the denial for modification of the stipulation.”
Six years later, on March 3, 2006, the mother filed a motion requesting that the court order child support under the New Hampshire Child Support Guidelines (the guidelines). See RSA 458-C:7, I (2004) (amended 2007). The father objected. Both parties submitted financial affidavits and completed child support guidelines worksheets. The parties disagreed about the amount of child support owed. The mother calculated the monthly amount at $648, while the father calculated it at $594. At a hearing, the mother requested that the father be ordered to add the children to his dental insurance policy and pay half of any uncovered orthodontic costs.
After the hearing, the trial court concluded that it was authorized to order child support. It found that the father had made reasonable efforts to relinquish his parental rights pursuant to the stipulation, but had been informed that he could not do so under RSA chapters 170-B or 170-C. In establishing the amount of support, the trial court found that “a deviation from the guidelines [wa]s appropriate” because “the [father] ha[d] relied upon the parties’ prior agreemеnt and ha[d] had little, if any, contact with the children since the parties were divorced.” Accordingly, the trial court determined that the father’s child support obligation was $250 per month. It also ordered the parties to split the costs of “uninsured medical expenses.” The mother appeals this decision.
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We will uphold the trial court’s decision with regard to child support unless it is unsupported by the evidence or tainted by an error of law.
In the Matter of State & Estate of Crabtree,
“New Hampshire’s child support guidelines are codified in RSA chapter 458-C, and establish a uniform system to determine the amount of child support awards.”
In the Matter of Baker & Winkler,
The mother argues that the trial court improperly based its deviation from the guidelines upon the father’s reliance upon the parties’ prior agreement that the father would relinquish his parental rights, and his lack of contact with the children after the divorce. The mother reasons that RSA 458-C:5, I, limited the trial court to considering as “special circumstances” only those issues that either are fiscal in nature or affect a parent’s ability to provide for a child’s needs. She also claims that the trial court erred in failing to address her requests for dental insurance coverage and uncovered orthodontic еxpenses.
The father counters that the mother is judicially and equitably estopped from claiming that the parties’ agreement is not a special circumstance warranting a downward deviation from the guidelines, and, even if she is not estopped, the trial court’s bases for deviation were proper under RSA 458-C:5, I (h) and (j). He also cоntends that: the trial court’s order *502 regarding health insurance and uninsured medical expenses sufficiently addressed the mother’s requests for dental insurance and uncovered orthodontic expenses; the trial court was not required to make a distinct order with respect to such expenses; and the trial court was not required to make writtеn findings with respect to orthodontic costs because the mother never asserted that orthodontic treatment constituted a special circumstance warranting an upward adjustment in the child support award.
We first address the father’s estoppel arguments. “The doctrine of judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”
Cohoon v. IDM Software,
The father argues that because the parties’ agreement at the time of the stipulation to sever the legal relationship between himself and his children was a special circumstance under RSA 458-C:5, I, the mother is now judicially estopped from claiming that that agreement doеs not qualify as a special circumstance under that same statute. We disagree.
Specifically with respect to the third judicial estoppel factor, the father argues that the mother would gain an unfair benefit and he would suffer an unfair detriment if the mother is not estopped. However, RSA 458-C:7,1, gives either parent the right to apply fоr modification of a child support order every three years, without requiring the moving parent to show a substantial change of circumstances. A purpose of this statute is to resolve inequities in child support orders,
In the Matter of Peirce & Peirce,
The father also contends that the mother is equitably estopped from claiming that the parties’ agreement is not a special circumstance. “Equitable estoppel serves to forbid one to speak against his own act, representations or commitments communicated to another who reasonably relies upon them to his injury.”
J.G.M.C.J. Corp. v. C.L.A.S.S., Inc.,
The father claims that estoppel may arise from the mother’s failure to return to the trial court for modification of the support order within thirty days of the probate court’s decision not to approve the termination of the father’s parental rights. We disagree. The purpose of child support is to provide economic support for the children, not the obligee parent. See RSA 458-C:l. Regardless of the parents’ actions, the children should not be deprived of the amount of support to which they are entitled. Therefore, equitable estoppel cannot apply to prevent a court from awarding the proper amount of support to protect the children, particularly where the legislature has explicitly permitted parents de novo review of existing support obligations. See RSA 458-C:7, I. Accordingly, the doctrine of equitable estoppel does not apply.
We now address whether the trial court properly deviated from the child support guidelines pursuant to RSA 458-C:5, I. In matters of statutory interpretation, we are the final arbiters of the legislative intent as
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expressed in the words of the statute considered as a whole.
Petition of State of N.H. (State v. Johanson),
RSA 458-C:5,1, allows for deviation from the guidelines and provides, in pertinent part:
Special circumstances, including, but not limited to, the following, if raised by any party to the action or by the court, shall be considered and may result in adjustments in the application of support guidelines provided under this chaptеr. The court shall make written findings relative to the applicability of the following:
(h) Parenting schedule;
(j) Other special circumstances found by the court to avoid an unreasonably low or confiscatory support order, taking all relevant circumstances into consideration.
(Emphasis added.)
The father first argues that his reliance upon the parties’ prior agrеement requiring him to relinquish his parental rights may constitute a special circumstance under RSA 458-C:5,1(j). We disagree.
“When the legislature uses the phrase ‘including, but not limited to’ in a statute, the application of that statute is limited to the types of items therein particularized.”
In the Matter of Clark & Clark,
This interpretation is consistent with the stated purpose of RSA chapter 458-C “[t]o minimize the
economic consequences
of divorce to children,”
In
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the Matter of Jerome & Jerome,
Furthermore, we have previously interpreted the special circumstances set forth in RSA 458-C:5, I, as addressing “matters of support adjustments based upon income and expenses.”
In the Matter of Plaisted & Plaisted,
Accordingly, standing alone, the father’s reliance upon the parties’ prior agreement cannot, as a matter of law, qualify as a special circumstance under RSA 458-C:5, I(j). No evidence in the record demonstrates how the father’s reliance upon the stipulation affected his present financial situation such that the guidelines support amount is confiscatory. Moreover, the trial court did not find that the father suffered any economic detriment as a result of the agreement. Therefore, we reject the father’s argument that the trial court’s decision to deviate from the guidеlines based upon his reliance upon the prior agreement may be upheld under RSA 458-C:5,1(j).
The trial court’s other basis for deviation was the father’s lack of contact with the children since the divorce. The father asserts that this lack of contact coupled with the mother’s assumption of sole financial responsibility for the children rеpresent the parties’ “parenting schedule,” which is a special circumstance under RSA 458-C:5, 1(h). He argues that this “parenting schedule” warrants a downward deviation from the guidelines amount. We disagree.
RSA 461-A:1, VI (Supp. 2006) defines “parenting schedule” as “the schedule of when the child is in the care of each parent.” Under a prior version of RSA 458-C:5, 1(h), whiсh listed as a special circumstance “split or shared custody arrangements,” RSA 458-C:5,1(h) (2004), we noted that sharing equal physical custody of children may result in a downward
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adjustment of the obligor parent’s support obligations,
see In the Matter of Folley & Folley,
Here, pursuant to the “parenting schedule,” the children stay with the mother at all times, and, consequently, the mother assumes all the child-rearing expenses. The father has no visitation rights or parenting rights or responsibilities, and, therefore, incurs no costs in caring for the children outside of his support obligations. In these circumstances, where the father assumes no child-rearing expenses as a result of the parenting schedule, it would be contrary to the purpose of the child support statute to allow the father to pay
less
than the guidelines amount.
Cf. Bourdon v. Bourdon,
Furthermore, to the extent the father аlso contends that his lack of contact with the children constituted another special circumstance under RSA 458-C:5,1(j), we reject that argument for the same reasons set forth above with respect to the father’s reliance upon the prior agreement. The father’s lack of contact is not economic in nature and hаs no relation to the parties’ financial situation. Accordingly, we reverse the trial court’s finding that special circumstances warranted a downward deviation from the guidelines, and remand to the trial court for calculation of the father’s support obligation under the guidelines.
See In the Matter of Gordon & Gordon,
Finally, the mother contends that the trial court erred in fаiling to address her requests for dental insurance coverage and payment of uncovered orthodontic expenses. The record is ambiguous as to whether the trial court ruled upon these requests. We decline to examine these issues without the benefit of a clear finding by the trial court.
Weare Land Use Assoc. v. Town of Weare,
Reversed and remanded.