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                   THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________


10th Circuit Court-Brentwood Family Division
No. 2017-0133


        IN THE MATTER OF WENDY S. WHITE AND MICHAEL L. WHITE

                           Argued: November 16, 2017
                         Opinion Issued: February 9, 2018

      Marshall Law Office PLLC, of East Kingston (Keri J. Marshall on the
brief), and Law Offices of Sharon J. Rondeau, of Exeter (Sharon J. Rondeau
orally), for the petitioner.


      Sullivan Law Office, of Salem (Leah Sullivan on the brief and orally), for
the respondent.

      LYNN, J. The petitioner, Wendy S. White (Mother), appeals an order of
the Circuit Court (LeFrancois, J.) finding that the respondent, Michael L. White
(Father), was entitled to a retroactive modification of his support obligation
based upon the emancipation of the parties’ older child. We reverse and
remand.

      The following facts are drawn from the record. The Mother and the
Father were married and had two children. They divorced in 2003, at which
time their children were minors. The terms of the divorce were set out in the
parties’ permanent stipulation, which was approved by the court. The
stipulation provided that the Father was to pay child support for the two
children, and incorporated a “Uniform Support Order” (USO) that required him
to pay $1,314 per month. In February 2010, the court issued a new USO
(2010 USO) modifying the Father’s child support obligation so that he was
required to pay $390 every two weeks.

      In June 2014, the parties’ older child became emancipated upon
graduation from high school. In 2016, the Father petitioned for “a three year
review” of the 2010 USO. Specifically, he sought to “[m]odify” his child support
obligation based upon the emancipation of the parties’ older child and to have
that modification be made retroactive to July 1, 2014. The Mother argued that
there had been no substantial financial change warranting a change in the
Father’s support obligation. She further contended that any change could be
made retroactive only to the date of service of the Father’s petition in August
2016.

       Following a hearing, the trial court issued an order in February 2017
ruling that, pursuant to RSA 461-A:14, IV, “modification [was] required to be
made as of the date of emancipation [of the parties’ older child], which in this
case means the modification should take place as of August 2014.” The court
found that the statute “requires termination of the child support [for the older
child] without further legal action” and, therefore, that “there can be no
arrearages accrued in connection with child support calculated for [the child]
after July 2014 because no further child support for [the parties’ child] could
be ordered after July 2014.” As a result, the court recalculated the Father’s
child support obligation “from July 2014 through December 2016, using the
income and expenses in effect at that time based on one minor child . . . rather
than two.” Based upon this recalculation, the court reduced the total amount
of arrearages owed by the Father dating back to July 2014. The court also
issued a new USO based upon the three-year review as requested by the
Father, which reduced his child support obligation to $500 per month. This
appeal followed.

      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 Nicholson & Nicholson, 164 N.H. 105, 107 (2012). “The party challenging
the court’s order has the burden of showing that the order was improper and
unfair.” In the Matter of Johnson & Johnson, 158 N.H. 555, 558 (2009)
(quotation omitted).

       On appeal, the Mother argues that the trial court “erred as a matter of
law in retroactively modifying the [Father’s] child support obligation in a
manner that altered the accrued child support arrearage,” contrary to RSA
461-A:14, VIII and RSA 458-C:7, II. The Father counters that RSA 461-A:14,
VIII and RSA 458-C:7, II do not apply because the court did not modify his
child support obligation. Rather, he maintains that, pursuant to RSA 461-
A:14, IV, when the parties’ older child became emancipated in July 2014, his


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support obligation for that child terminated without further legal action and,
therefore, the court merely recalculated the amount of arrearages based upon
the date of termination.

       We turn first to the Father’s argument that, pursuant to RSA 461-A:14,
IV, his support obligation terminated without further legal action upon the
emancipation of the parties’ older child. Resolution of this argument requires
us to engage in statutory interpretation, and, therefore, our review is de novo.
See In the Matter of Doherty & Doherty, 168 N.H. 694, 697 (2016). We are the
final arbiter of the legislature’s intent as expressed in the words of the statute
considered as a whole. Id. “We first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning.” In the Matter of State of N.H. & Louder, 166 N.H. 353, 355 (2014)
(quotation omitted). We interpret legislative intent from the statute as written,
and we will not consider what the legislature might have said or add words that
the legislature did not include. In the Matter of Doherty & Doherty, 168 N.H.
at 697. “We construe all parts of a statute together to effectuate its overall
purpose and avoid an absurd or unjust result.” In the Matter of State of N.H.
& Louder, 166 N.H. at 355 (quotation omitted). “Moreover, we do not consider
words and phrases in isolation, but rather within the context of the statute as
a whole.” Id. (quotation omitted).

      Because the trial court applied the current version of RSA 461-A:14, IV,
and the parties do not argue otherwise on appeal, for purposes of this appeal,
we assume that the current version of the statute applies. RSA 461-A:14, IV
(Supp. 2017) provides, in pertinent part:

             The amount of a child support obligation shall remain as
      stated in the order until the dependent child for whom support is
      ordered completes his or her high school education or reaches the
      age of 18 years, whichever is later, . . . at which time the child
      support obligation . . . terminates without further legal action.

      RSA 461-A:14, IV-a (Supp. 2017) further provides:

             If the order establishes a support obligation for more than
      one child, and if the court can determine that within the next 3
      years support will terminate for one of the children as provided in
      paragraph IV, the amount of the new child support obligation for
      the remaining children may be stated in the order and shall take
      effect on the date or event specified without further legal action.
      Termination of support for any one of the children under
      paragraph IV is a substantial change of circumstances for
      purposes of modification of the child support order under RSA
      458-C:7.



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       RSA 461-A:14, IV allows for the termination of a child support obligation
for a dependent child under the enumerated circumstances “without further
legal action.” RSA 461-A:14, IV. Under RSA 461-A:14, IV-a, when an order
establishes a support obligation for more than one child, and the court can
determine that support will terminate within the next three years for one of the
children pursuant to one of the enumerated circumstances in paragraph IV,
the court may specify in the order the amount of the new child support
obligation for the remaining children. RSA 461-A:14, IV-a. In such a case, the
amount of the new support obligation “shall take effect on the date or event
specified without further legal action.” Id. Moreover, “[t]ermination of support
for any one of the children under paragraph IV is a substantial change of
circumstances for purposes of modification of the child support order under
RSA 458-C:7.” Id. When read together, we conclude that when an order
establishes a support obligation for one child, RSA 461-A:14, IV allows for the
termination of that support obligation under the enumerated circumstances
“without further legal action.” RSA 461-A:14, IV. On the other hand, when an
order establishes a support obligation for more than one child, but does not
specify the amount of a new child support obligation for the remaining
unemancipated children upon the termination of a support obligation for one of
the children, a parent must apply to the court for modification of such order.
RSA 461-A:14, IV-a; see also RSA 458-C:7, I(a) (Supp. 2017) (authorizing an
obligor or obligee to apply to the court for modification of an existing support
order “at any time” that there has been a “substantial change of
circumstances” or “3 years after the entry of the last order for support, without
the need to show a substantial change of circumstances”).

       To interpret RSA 461-A:14, IV as suggested by the Father would nullify
the provisions of RSA 461-A:14, IV-a. This we will not do. See State v.
Maxfield, 167 N.H. 677, 683 (2015) (“We will construe statutes so as to
effectuate their evident purpose and will not apply a construction that nullifies,
to an appreciable extent, that purpose.” (quotation omitted)). Indeed, when an
order establishes a child support obligation for more than one child, it makes
sense to require the court to specify the new support obligation amount for the
remaining children when support is terminated as to one of the children
because the support obligation is not based solely upon the number of
children, but based upon an application of the child support guidelines and
any special circumstances raised by the parties or by the court. See RSA 458-
C:3-:5 (Supp. 2017); see also In the Matter of Nicholson & Nicholson, 164 N.H.
at 107 (“[T]he child support award is a standing order from the trial court.
Parties may not modify orders of the court through private agreement.”
(quotation omitted)).

      Here, the 2010 USO required the Father to pay child support for both of
the parties’ children, thereby establishing a support obligation for more than
one child. It did not, however, specify a new child support obligation upon
termination of the support obligation for the parties’ older child. Thus, the


                                        4
amount of the Father’s support obligation did not change “without further legal
action” upon the older child’s emancipation. See RSA 461-A:14, IV. Rather,
the Father was required to apply to the court for modification of the 2010 USO.
See RSA 461-A:14, IV-a; RSA 458-C:7, I(a). In 2016, he did just that.

       We now turn to whether the 2017 order of the trial court was, as the
Mother suggests, a modification of the 2010 USO. RSA 461-A:14, VIII (Supp.
2017) provides that “[n]o modification of a support order shall alter any
arrearages due prior to the date of filing the motion for modification.” RSA
458-C:7, II (Supp. 2017) provides, in relevant part, that “[a]ny child support
modification shall not be effective prior to the date that notice of the petition for
modification has been given to the respondent.” We have held that, pursuant
to this provision, the trial court lacks discretion to modify any child support
order beyond the date of notice to the other party. See In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 58 (2006).

        The record before us reveals that the 2010 USO ordered the Father to
pay $390 every two weeks in child support for the parties’ two children. In its
2017 order, the trial court “calculated a new child support” amount and
thereby ordered the Father to pay the Mother $500 per month. We conclude
that the court’s 2017 order constituted a modification of child support and,
therefore, that the court erred in altering the arrearages owed prior to the date
of filing the petition for modification. See RSA 461-A:14, VIII; RSA 458-C:7, II;
see also In the Matter of Zikmanis & Peabody, 160 N.H. 82, 84 (2010).

      Relying upon In the Matter of Nicholson & Nicholson, the Father
contends that the language of paragraphs SO-3B and SO-4A of the 2010 USO
standing order allowed for the recalculation of his support obligation
retroactive to the date of the parties’ older son’s emancipation and, therefore,
“there was no modification of child support as addressed in” RSA 458-C:7, II.
Nicholson, however, is distinguishable.

       In Nicholson, we examined whether the terms of the divorce decree and
the controlling statute mandated a retrospective recalculation of support based
upon the emancipation of the parties’ two oldest children. In the Matter of
Nicholson & Nicholson, 164 N.H. at 107. The controlling statute, former RSA
458:35-c (1992), provided that “[u]nless the court specifies differently,” the
amount of the support ordered at the time the parties divorced would remain
unchanged until all children were emancipated. Id. (quotation, emphasis, and
ellipsis omitted). We, therefore, looked to the terms of the final divorce decree
to determine whether the court “specified differently.” Id. (quotation omitted).

       Paragraph SO-4A of the standing order, incorporated into the parties’
stipulation, stated that “[c]hild support shall terminate when the youngest
child terminates his/her high school education or reaches the age of 18 years,
whichever is later; gets married; or becomes a member of the armed forces.”


                                         5
Id. at 108 (quotation omitted). Paragraph SO-3B provided that “except as
otherwise provided in this order, the effective date of any modification shall be
no earlier than the date the petition is filed.” Id. (quotation and brackets
omitted). Because paragraph SO-4B did provide otherwise, in that it instructed
that “child support shall be recalculated in accordance with the guidelines
whenever there is a change in the number of children for whom support is
ordered, effective the date of the change,” we concluded that the trial court was
obligated to retrospectively recalculate child support as of the dates upon
which each of the two older children became emancipated. Id. (quotation
omitted).

       Here, paragraph SO-3B of the 2010 USO standing order stated, in
relevant part, that “[e]xcept as otherwise provided, the effective date of any
modification shall be no earlier than the date of notice to the other party.”
Paragraph SO-4A provided that “[a]n obligation for child support terminates
when a child terminates his/her high school education or reaches the age of 18
years, whichever is later.” Paragraph SO-4B further provided that “[t]he
amount of child support may be recalculated according to the guidelines
whenever there is a change in the number of children for whom support is
ordered, upon petition by any party.” (Emphasis added.) Unlike Nicholson
where the amount of child support could be recalculated “effective the date of
the change,” In the Matter of Nicholson & Nicholson, 164 N.H. at 108
(quotation and emphasis omitted), in this case, the amount of support may be
recalculated only “upon petition by any party.” Thus, Nicholson does not
provide support for retroactively modifying the Father’s support obligation to
the date the older child became emancipated. Rather, in this case, pursuant to
the 2010 USO, RSA 461-A:14, IV-a, and RSA 458-C:7, the 2010 USO remained
in effect until the Father petitioned the court for modification, at which time
the court could modify his support obligation based upon the older child’s
emancipation. See RSA 461-A:14, IV-a; RSA 458-C:7. However, the court
could not “alter any arrearages due prior to the date of filing the motion for
modification.” RSA 461-A:14, VIII.

     For these reasons, we conclude that the trial court erred by retroactively
modifying the Father’s support obligation and thereby reducing the total
amount of arrearages owed by the Father dating back to July 2014.

                                                 Reversed and remanded.

     DALIANIS, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.




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