In re Giacomini

842 A.2d 70, 150 N.H. 498, 2004 N.H. LEXIS 13
CourtSupreme Court of New Hampshire
DecidedFebruary 2, 2004
DocketNo. 2002-716
StatusPublished
Cited by13 cases

This text of 842 A.2d 70 (In re Giacomini) 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 Giacomini, 842 A.2d 70, 150 N.H. 498, 2004 N.H. LEXIS 13 (N.H. 2004).

Opinion

BRODERICK, C.J.

The petitioner, Barbara M. Giacomini, appeals an order of the Superior Court (Houran, J.) modifying a 1988 final divorce decree. The respondent, Patrick A. Giacomini, cross-appeals. We affirm in part, vacate in part and remand.

The record supports the following facts. The parties separated in 1987 and received a final decree of divorce in September 1988. They have two children, currently ages twenty and seventeen. The decree granted physical custody of the children, who were then ages five and two, to the petitioner and liberal visitation rights to the respondent. It required the respondent to pay child support to the petitioner in the amount of $250 per week, plus an additional twenty-five percent of the gross amount of any increase in salary or any bonus in excess of a gross annual salary of $41,000. The decree also required each party to promptly provide the other with copies of their W-2 forms.

In August 2000, the petitioner moved to modify the child support obligation. In June 2001, she moved for contempt against the respondent for his failure to timely and fully discharge his child support obligations. On May 3, 2002, the trial court issued a final order. Subsequently, both parties filed motions for reconsideration.

In its revised final order, the trial court found that, from 1989 to early 2002, the respondent owed $670,500 in child support but had paid only $355,995, leaving a shortfall of $314,505. The trial court also found that the respondent was entitled to a credit of $79,688 against the shortfall for certain education expenses he paid. The court entered a judgment against the respondent for $234,817, but ruled that he was not in contempt despite his nonpayment of child support. This appeal followed.

The petitioner contends that the trial court erred by: (1) failing to find the respondent in contempt; (2) deducting “grossed-up” wages from the respondent’s declared income; (3) changing a finding it had made in its [500]*500original order; and (4) failing to award interest on the petitioner’s judgment for back child support.

By cross-appeal, the respondent contends that the trial court erred by: (1) calculating his child support arrearage according to the terms of the 1988 decree; (2) applying RSA 458:17, VII (1992), which resulted in a twenty-year statute of limitations for the petitioner, while denying him the benefit of the child support guidelines, when both statutory provisions became effective on the same date; (3) finding him in arrears, because the petitioner’s twelve-year delay in seeking relief was unreasonable and prejudicial; and (4) modifying his child support obligation as of June 19, 2001, instead of September 6, 2000, the date the petitioner’s motion to bring forward and modify was served on the respondent.

On appeal, we will affirm the findings and rulings of the trial court unless they are unsupported by the evidence or legally erroneous. In the Matter of Fowler and Fowler, 145 N.H. 516, 519 (2000). The trial court has broad discretion to review and modify child support awards because it is in the best position to determine the parties’ respective needs and resources. In the Matter of Feddersen & Cannon, 149 N.H. 194, 196 (2003). Accordingly, we will set aside a modification order only if it clearly appears, from the record, that the trial court’s exercise of discretion was unsustainable. Id.

The petitioner argues that the trial court erred by failing to find the respondent in contempt of court because, she contends, he failed to abide by the 1988 decree. The contempt power is discretionary and the proper inquiry is not whether we would have found the respondent in contempt, but whether the trial court unsustainably exercised its discretion in refusing to do so. Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 711-12 (1980); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).

The record demonstrates that the trial court reviewed the parties’ conduct since 1988 and the challenged conduct that resulted in the allegations of contempt, namely, the respondent’s failure to pay all child support, before concluding that the respondent should not .be held in contempt. The trial court stated that “[w]hile the child support arrears which have accrued in this case are large, the failure to pay child support in full does not automatically lead to a finding of contempt.” The court further stated that “[t]he petitioner asserts that the lack of an explicit finding that the respondent had just cause requires a finding of contempt.” However, the court found that implicit in its determination not to find the respondent in contempt was that it was not making the finding pursuant to [501]*501RSA 458:51 (1992), which would have placed either party in contempt. The trial court specifically stated that the respondent’s “mistaken belief that he was entitled to offset his child support payment by expenses he made in connection with his children [was] sufficiently convincing to help avoid a finding of contempt.” The trial court was not compelled to find the respondent in contempt and did not commit an unsustainable exercise of discretion by failing to do so.

The petitioner next argues that the trial court erred by deducting “grossed-up” wages, which included payments made for the respondent by his employer to cover state and federal taxes, from the respondent’s reported income on his W-2 forms. The trial court found that the respondent had “convincingly” explained that these wages were not income to him. Rather, they were part of “an accounting function to offset a tax burden created by the method the [respondent’s] employer chose to reimburse him, and the [respondent] never had constructive receipt of these funds.” The trial court’s finding was supported by the evidence, and we conclude that it did not commit an unsustainable exercise of discretion by deducting the “grossed-up” wages from the respondent’s income.

The petitioner further contends that the trial court erred by denying a requested finding in its revised final order that it had granted in its first order. In its first order, the trial court granted the petitioner’s requested finding that the respondent “ha[d] no legal excuse for not paying his child support.” In the narrative of its revised final order, however, the trial court made it clear that it did not intend to hold either party in contempt. As a result, the trial court denied the finding that it had previously granted to make the finding consistent with the narrative, as it was authorized to do by Superior Court Rule 59-A. It committed no error by correcting a factual finding it determined to be inconsistent with its final ruling.

On cross-appeal, the respondent argues that the trial court erred by calculating the child support arrearage according to the terms of the 1988 decree. He contends that because the child support guidelines became effective on April 30,1988, see RSA 458-C:l-:5 (1992), several months prior to the final decree of divorce, the trial court should have calculated the child support arrearage, accruing since 1988, in accord with the child support guidelines. Although the 1988 decree should have been based upon the child support guidelines, RSA 458:17, VIII (1992) clearly states that “[n]o modification of a support order shall alter any arrearages due prior to the date of filing the motion for modification.” See Chenausky v. Chenausky, 128 N.H. 116, 120 (1986) (stating that a trial court’s power to [502]

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Bluebook (online)
842 A.2d 70, 150 N.H. 498, 2004 N.H. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-giacomini-nh-2004.