The 10th Circuit Court-Brentwood Family Division (Luneau, M., approved by LeFrancois, J.) issued orders after the respondent, William Doherty (Husband), filed a petition to modify his child support and alimony obligations. Husband and the petitioner, Holly Doherty (Wife), both appeal. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand.
The relevant facts are as follows. The parties divorced in January 2010. They had two minor children at that time. They entered into a stipulation, which was incorporated into the divorce decree that the trial court approved; in the stipulation, they agreed upon, among other things, the amount of monthly alimony and child support to be paid by Husband.
In July 2014, after one of the parties’ children had reached majority, Husband filed a petition seeking a modification of his child support and alimony obligations. Thereafter, Wife filed a motion for contempt, in which she asserted that Husband had significant child support and alimony arrearages. Following a hearing in August 2014, the trial court issued the orders that are the subject of this appeal; in the orders, the trial court modified Husband’s child support and alimony obligations and determined the amount of arrearages that he owed.
Wife argues that the trial court erred by: (1) including foster care payments that she received in her gross income for the purpose of modifying Husband’s child support and alimony obligations; (2) terminating Husband’s ongoing alimony obligation; and (3) concluding that it, a family division court, lacked jurisdiction to enforce the parties’ agreement to share equally in certain litigation costs. “We will uphold an order on a motion to modify a support obligation absent an unsustainable exercise of discretion.”
In the Matter of Canaway & Canaway,
A. Foster Care Payments
Turning to Wife’s first argument, we provide the following background. In their stipulation, the parties agreed that, each month, Husband would pay Wife approximately $3,400 in child support and approximately $1,600 in alimony, for a monthly total of $5,000. They further agreed that alimony would continue for 15 years, and that if the child support obligation was reduced, alimony would be increased so as to maintain a total payment of $5,000 per month.
When deciding whether to modify Husband’s child support and alimony obligations, the trial court found that, at the time of the parties’ divorce, Wife’s employment income was approximately $17,500 per month. However, at the time of the hearing in 2014, the trial court found that her monthly income comprised approximately $3,600 in employment income and approximately $5,700 that she received “as a care provider for [two] disabled adults who reside[d] in her household.”
After deciding to include the foster care payments in Wife’s current income, the trial court concluded that it would be “fair and equitable” for Husband to pay $968 per month in child support pursuant to the child support guidelines. The trial court further determined that, because there had been a “substantial and unforeseen change in circumstances,” a modification of alimony was justified. Given the change in the parties’ incomes and expenses, a reduction in Wife’s monthly mortgage payment, and Husband’s inability to pay alimony in addition to child support and arrearage payments, the trial court decided to terminate Husband’s ongoing alimony obligation. Both of these modifications were made retroactive to July 14,2014 — the date that Wife filed an objection to Husband’s petition for modification, in which she sought enforcement of Husband’s child support and alimony obligations. See RSA 458-C:7, II (2004) (“Any child support modification shall not be effective prior to the date that notice of the petition for modification has been given to the [opposing party].”).
On appeal, Wife argues that, because the foster care payments that she received were “use[d] to clothe, feed and shelter the disabled adults in her care,” those funds should not have been included in her gross income for the purposes of modifying Husband’s child support obligations. In making this argument, she relies upon the definition of “gross income” under RSA 458-C:2, IV (2004), the definition of income under the federal tax code, and cases from other jurisdictions. Husband counters that the foster care payments were properly included in Wife’s income because they constituted “gross income” under RSA 458-C:2, IV. Additionally, he asserts that the federal tax code’s
Resolving this issue requires us to engage in statutory interpretation, and, therefore, our review is
de novo. See In the Matter of Woolsey & Woolsey,
“Gross income” is defined, in relevant part, as:
all income from any source, . . . including, but not limited to, wages, salary,... and payments from other government programs 0except public assistance programs, including aid to families with dependent children, aid to the permanently and totally disabled, supplemental security income, food stamps, and general assistance received from a county or town).
RSA 458-C:2, IV (emphases added). Wife asserts that the foster care payments that she received are excluded from the definition of “gross income” under RSA 458-C:2, IV as “aid to the permanently and totally disabled.” We disagree.
RSA 167:6, VI (2014) states, in pertinent part, that:
[A] person shall be eligible for aid to the permanently and totally disabled who is between the ages of 18 and 64 years of age inclusive; is a resident of the state; and is disabled as defined in the federal Social Security Act, Titles II and XVI and the regulations adopted under such act, except that the minimum required duration of the impairment shall be 48 months, unless and until the department adopts a 12-month standard in accordance with RSA 167:3-j. In determining disability, the standards for “substantial gainful activity” as used in the Social Security Act shall apply, including all work incentive provisions including Impairment Related Work Expenses, Plans to Achieve Self Support, and subsidies.... No person shall be eligible to receive such aid while receiving old age assistance, aid to the needy blind, or aid to families with dependent children.
See also
RSA 167:3-j (2014) (concerning minimum duration of impairment for aid to the permanently and totally disabled);
Petition of Kilton,
Here, Wife has not provided us with a record concerning the origins of the foster care payments. Thus, on the record before us, there is no evidence that the payments that she received were actually made under the aid to the permanently and totally disabled program; additionally, there is no evidence that the adults in her care met all of the statutory requirements to establish eligibility for such aid.
See
RSA 167:6, VI;
see also
RSA 167:3-j. Accordingly, we cannot conclude that those payments can be excluded from the definition of “gross income” under RSA 458-C:2, IV as “aid to the permanently and totally disabled.”
See Bean v. Red Oak Prop.
Mgmt.,
Accordingly, given the broad statutory definition of “gross income,”
see In the Matter of LaRocque & LaRocque,
Nevertheless, Wife asserts that, because the foster care payments are excluded from her gross income for tax purposes under the federal tax code, they should also be excluded from her gross income under RSA 458-C:2, IV.
See
26 U.S.C. § 131(a) (2012) (“Gross income shall not include
amounts received by a foster care provider during the taxable year as qualified foster care payments.”)- We disagree. We have repeatedly stated that how the “federal income taxation statutes define ‘income’ is of little relevance to our interpretation of gross income under the child support guidelines.”
Hampers,
Moreover, we are not persuaded by Wife’s reliance upon cases from other jurisdictions that have held that foster care payments received by a foster parent of children should be excluded from the foster parent’s income.
See, e.g., In re Marriage of Dunkle,
Finally, to the extent that Wife attempts to assert a distinct and additional argument that “gross income” for child support purposes should be treated differently than income for alimony purposes,
see
RSA 458:19, IV (2004) (listing factors for trial courts to consider when determining alimony, including the “amount and sources of income” of each party), we decline to address it because it was not adequately developed for appellate review,
see In the Matter of Thayer and Thayer,
B. Reducing Gross Income
Wife next asserts that the trial court erred by failing to: (1) account for the reduction in the payments that she received when one of the foster adults in her care was removed from her home; and (2) deduct expenses that she incurred relating to the care of the foster adults. We agree with Wife on both points.
Moreover, we agree with Wife that the trial court should have deducted from her monthly foster care payments, and, thus, from her gross income, the reasonable and necessary expenditures that she incurred in providing for the foster adult remaining in her care. As we have explained, “gross income” under RSA 458-C:2 means the total amount available to parents for paying child support.
See id.
at 484;
see also Woolsey,
Accordingly, we vacate the trial court’s determination of Wife’s monthly gross income, and remand for the trial court to determine the extent of the foster care payments that remained available to Wife, after deducting from the payments the reasonable and necessary expenses that Wife actually incurred and paid to care for the foster adult who remained in her home.
See Woolsey,
C. Modification of Alimony
Relying primarily upon our decision in
Laflamme v. Laflamme,
As we have stated, “[t]he party requesting an alimony modification must show that a substantial change in circumstances has arisen since the initial award, making the current alimony amount either improper or unfair.”
Canaway,
In
Laflamme,
the trial court modified the defendant’s alimony obligation based upon a finding that the defendant had sold assets and no longer had income to pay alimony due to his retirement.
Laflamme,
Laflamme
is readily distinguishable. First, as the trial court here observed in its order, the parties’ incomes and expenses had changed significantly since the divorce decree.
See Canaway,
Moreover, unlike
Laflamme,
in which the trial court found that both the defendant’s retirement and the sale of his assets were anticipated by the parties at the time of the divorce decree,
see Laflamme,
Furthermore, the parties’ stipulation contemplated reconsideration of Husband’s alimony obligation under certain circumstances.
See Arvenitis,
Accordingly, in light of the trial court’s finding that there had been unanticipated and unforeseeable significant changes in the parties’ finances, the terms of the parties’ stipulation, and the reduction
Nonetheless, Wife asserts that, even if the trial court had the discretion to revisit and potentially modify the alimony award, it unsustainably exercised that discretion by eliminating Husband’s alimony obligation. According to Wife, the significant decrease in her income supported continuation — rather than elimination — of alimony, and she also argues that the trial court erroneously cited Husband’s inability to pay his child support and alimony arrearages as a reason to terminate alimony.
We, however, need not address whether the trial court’s order eliminating alimony is unsupportable because of either the dramatic decrease in Wife’s income or the trial court’s reliance upon Husband’s inability to pay certain arrearages. Because we are vacating for redetermination of Wife’s gross income for child support purposes, and because the trial court relied, in part, upon that gross income figure when deciding to eliminate Husband’s ongoing alimony obligation, we also vacate the alimony award and remand for redetermination of whether and to what extent ongoing alimony is warranted.
D. Jurisdiction of Trial Court
Wife next argues that the trial court, a family division court, erred by concluding that it lacked jurisdiction to enforce a provision in the parties’ stipulation. The disputed provision states that the parties would be “equally responsible for payment of any and all legal fees incurred and/or judgments/settlements requiring them to compensate any party” in a separate and ongoing boundary lawsuit. Although the trial court acknowledged the parties’ agreement to divide such legal fees, it concluded that it could enforce only “the part of the debt that was incurred as of the date of the Divorce Decree,” and that no part of the debt existed at that time. The trial court stated that “[a]ny post-Decree debt to the firm the parties hired in the [boundary] lawsuit needs to be addressed in the context of the lawsuit, or in another forum.”
Wife asserts that the trial court had jurisdiction to enforce the parties’ agreement to share the legal fees associated with the ongoing boundary lawsuit because such litigation costs were part of the marital debt that it could properly consider when distributing the marital estate. Husband counters that the trial court “correctly held that its jurisdiction extends only as far as dividing the assets and debts of the parties as of the date of divorce, but not afterward,” because it has no “legal authority to assign post-divorce debt.” We agree with Wife.
Our decision in
Maldini v. Maldini,
II. Husband’s Cross-Appeal
A. Retroactive Alimony Modification
Husband first argues that the trial court erred by failing to retroactively modify his alimony obligation to a date earlier than July 14,2014. Although
we have vacated the trial court’s decision to eliminate his ongoing alimony obligation, we will address this issue because it is likely to arise upon remand.
See Figlioli v. R.J. Moreau Cos.,
In determining July 14 to be the effective date of the alimony modification, the trial court explained that, because it did not receive a return of service of Husband’s petition for modification of child support and alimony, the earliest date to which it could retroactively modify the obligations was July 14 — the date that Wife filed an objection to the petition, thus evidencing receipt of Husband’s petition. See RSA 458-C:7, II (“Any child support modification shall not be effective prior to the date that notice of the petition for modification has been given to the [opposing party].”). Husband concedes that, pursuant to RSA 458-C:7, II, the trial court cannot retroactively modify his child support obligation prior to July 14 — the date that notice of the petition for modification was provided to Wife. However, he argues that, because alimony differs from child support and each is governed by different statutes, the same limitation does not apply to alimony modifications. Thus, he argues, the trial court had the ability to modify his alimony to a date prior to July 14. We disagree.
Our decision in
In the Matter of Birmingham & Birmingham,
Thus, based upon
Birmingham,
we conclude that the trial court in this case had no authority to grant a retroactive modification of alimony to a date earlier than the date Wife received notice of Husband’s petition for modification.
See id.
Regardless of any ambiguity in the phrase “similarly limited,” our decision in
Birmingham
effectively imported into retroactive alimony modifications the same notice requirements that are applicable to retroactive child support modifications.
See id.
We also observe that, although in
Birmingham
we invited the legislature to clarify the statutes governing the trial court’s authority to grant a retroactive modification of alimony,
id.,
the legislature has not amended those statutes,
see
RSA 458:14, :32 (2004). Thus, we assume that our holding in
Birmingham
conforms to legislative intent.
See Ichiban Japanese Steakhouse v.
Rocheleau,
B. Child Support Arrearages
Husband next argues that the evidence presented to the trial court did not support the trial court’s determination of the amount of his child support arrearages. At the hearing on the petition to modify, each party submitted records purporting to demonstrate the amount of child support that Husband had paid and still owed between the date of the parties’ stipulation — in which Husband agreed to pay approximately $3,400 per month in child support — and July 2014. According to Wife’s records, Husband’s child support arrearages amounted to approximately $73,100. Husband’s documents, however, purported to demonstrate an arrearage of approximately $47,400. After reviewing the documents provided by the parties, the trial court concluded that Wife’s documents were “credible,” and that Husband owed approximately $73,100 in child support arrearages.
On appeal, Husband argues that the trial court’s decision is not supported by the documentary evidence presented at the hearing. According to Husband, when the trial court adopted Wife’s arrearage amount, it erroneously “ignored” the allegedly more accurate records that he submitted, which included bank deposit receipts. In response, Wife contends that we should affirm the trial court’s determination of child support arrearages because the trial court found the records that she submitted to be “credible.” She argues that our task is not to reweigh the evidence
presented to the trial court, and she asserts that, because the trial court’s finding is supported by the documentary evidence that she submitted, we should defer to the trial court’s finding.
See In re Guardianship of E.L.,
Nonetheless, even under a less deferential standard, we cannot conclude that the trial court erred by ruling that Husband owes approximately $73,100 in child support arrearages. First, many of the bank deposit receipts that Husband has submitted on appeal — which he claims provide “incontrovertible proof’ that his child support arrearages total approximately $47,400 — are illegible.
See Bean,
Affirmed in part; reversed in part; vacated in part; and remanded.