In re Feddersen

816 A.2d 1033, 149 N.H. 194, 2003 N.H. LEXIS 24
CourtSupreme Court of New Hampshire
DecidedFebruary 28, 2003
DocketNo. 2002-322
StatusPublished
Cited by15 cases

This text of 816 A.2d 1033 (In re Feddersen) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Feddersen, 816 A.2d 1033, 149 N.H. 194, 2003 N.H. LEXIS 24 (N.H. 2003).

Opinion

Nadeau, J.

The petitioner, Frederick Feddersen, appeals the recommendation of the Master (Leonard, S. Green, Esq.) approved by the Superior Court (Brennan, J.) modifying his child support obligation following his receipt of an approximately $3.4 million settlement from a patent infringement lawsuit in 2001. The issue before the trial court was whether and how to include the settlement as “gross income” for child support purposes. See RSA 458-C:2, IV (Supp. 2002). On appeal, the petitioner concedes that the settlement was includable as income. He argues, however, that the trial court erred by: (1) using his 2001 tax returns to determine his present income instead of relying solely upon his March 2002 financial affidavit; (2) issuing a child support order based upon the 2001 settlement income for years other than 2001; (3) making the modified award retroactive to January 2001; and (4) requiring him to place money in a trust for the child as security for future child support payments. He also invites the court to overrule its decision in In the Matter of Dolan and Dolan, 147 N.H. 218 (2001). We affirm.

I. Factual Background

The petitioner and the respondent, Shelley Cannon, divorced in 1995. The respondent has custody of the couple’s son, who turned sixteen in January 2003. The 1995 decree required the petitioner to pay $3,000 per month in child support.

The petitioner is the sole shareholder of FMT Corporation, a closely held corporation. Over the years, FMT Corporation brought three patent infringement suits. The instant appeal concerns the settlement of the third such suit in 2001, for which FMT Corporation received $5 million (less attorney’s fees). After attorney’s fees, the total value of the settlement was approximately $3.4 million. The petitioner has been using the proceeds of this settlement to fund a newly created start-up business in Tennessee and to pay taxes.

In May 1998, three years after the divorce decree was issued, the respondent petitioned to modify the support order. See RSA 458-C:7 (Supp. 2002). The court did not hear the petition until nearly four years later, in March 2002.

[196]*196While the petition to modify was pending, the Master (Peter J. Bourque, Esq.) recommended and the Superior Court (Conboy, J.) approved an order temporarily modifying the petitioner’s child support obligation. The temporary order, issued in December 2000, increased the petitioner’s monthly child support obligation to $4,750. The order was made retroactive to June 1,1999.

Following the March 2002 hearing, the master ruled that the $3.4 million settlement was includable as gross income for child support purposes. Pursuant to the uniform child support guidelines, the petitioner’s total support obligation would have been $40,000 per month. The master, however, exercised his statutory discretion to reduce the petitioner’s total support obligation, explaining that “[e]ven in California, $40,000 a month for child support might seem a bit over the top.” Accordingly, he ordered the petitioner to pay $7,000 per month in child support until the child turned eighteen. Acknowledging that the $3.4 million settlement was “non-repetitive,” the master ordered the petitioner to place $200,000 in a trust fund to provide the funds to pay $7,000 per month until the couple’s child was eighteen. The master explained that placing the money in a trust was necessary “to protect the child from any future vagaries in the Petitioner’s income.”

II. Discussion

Trial courts have broad discretion to review and modify child support awards. See Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 (1989). They are in the best position to determine the parties’ respective needs and their respective ability to meet them. Id. Accordingly, we will set aside a modification order “only if it clearly appears on the evidence” that the court’s exercise of discretion was unsustainable. Butterick v. Butterick, 127 N.H. 731, 736 (1986) (quotation omitted); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).

A. Use of2001 Income

The petitioner first argues that the trial court erroneously relied upon his income for 2001 as his “present income,” rather than his income for March 2002, when the court heard the petition to modify. We disagree.

To calculate child support, the trial court must first determine each parent’s “present income.” In the Matter of Crowe & Crowe, 148 N.H. 218, 222 (2002). It is up to the trial court to decide “what income figures should be used... based upon the facts presented at the hearing.” Id. In so doing, the court may consider “[t]he credibility and forthrightness of the noncustodial parent in disclosing income.” Id. at 223 (quotation omitted).

[197]*197In Crowe, we affirmed the trial court’s use of past tax returns and other information to determine the obligor’s present income. Id. The trial court found that the amount listed on the obligor’s 1999 tax return did not reflect his current income and was thus unreliable. Id. In so finding, the court compared the obligor’s tax returns for 1996 through 1999, looked at his business records, which showed that he had drawn personal expenses from the business, and considered income generated from his rental property. Id.

As in Crowe, the trial court found the petitioner’s financial affidavit misleading. In his March 2002 financial affidavit, the petitioner listed his monthly income as $12,309. This amount did not include any of the proceeds from the patent infringement lawsuits. For instance, although the petitioner, through FMT Corporation, had received $857,000 in January 2002 as partial payment of a settlement of one lawsuit, he did not report this on the financial affidavit. Nor did he report the $3.4 million settlement FMT Corporation received in 2001, even though his wife was paid $3 million of this settlement as “salary.”

As in Crowe, the court was not required to rely solely upon the petitioner’s estimate of his present income. It was entitled to rely upon his 2001 tax returns as well as the other evidence presented of his present income. We hold that the trial court’s exercise of discretion in this regard was sustainable.

The petitioner argues that because his 2001 income was “extraordinary,” the court should not have used it as the basis for modifying his total support obligation. The relevant statutes require otherwise.

The legislature has determined that nonrecurring income is includable as “gross income” for child support purposes. See Dolan, 147 N.H. at 222; RSA 458-C:2, IV. RSA 458-C:2, IV defines “gross income” as

all income from any source, whether earned or unearned, including, but not limited to, wages, salary, commissions, tips, annuities, social security benefits, trust income, lottery or gambling winnings, interest, dividends, investment income, net rental income, self-employment income, alimony, business profits, pensions, bonuses, and payments from [certain] government programs____

This definition includes nonrecurring income, such as lottery or gambling winnings, as well as recurring income, such as wages and salary.

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Cite This Page — Counsel Stack

Bluebook (online)
816 A.2d 1033, 149 N.H. 194, 2003 N.H. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-feddersen-nh-2003.