In the Matter of the State of New Hampshire and Cory R. Lounder

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
No. 2013-359

IN THE MATTER OF THE STATE OF NEW HAMPSHIRE
AND CORY R. LOUNDER

Submitted: March 6, 2014
Opinion Issued: June 13, 2014

Sederquest Law Office, of Peterborough (Rachel Sederquest on the brief),
for the respondent.

Joseph A. Foster, attorney general, for the State, filed no brief.

The petitioner, self-represented, filed no brief.

LYNN, J. The respondent, Cory R. Lounder, appeals an order of the
Superior Court (Kissinger, J.) denying his petition to modify child support. He
argues that the trial court erred by concluding that his incarcerated status
made him ineligible for a reduction in support. We reverse and remand.

The following facts were found by the trial court or are supported by the
record. In November 2009, the trial court approved a uniform support order
that obligated the respondent to pay $109 per week in child support to the
mother of his children. At that time, the respondent was employed full-time
and earning $9.50 per hour. He was subsequently convicted of arson, for
which he was sentenced to prison in February 2013. He is ineligible for release
before 2016. As a consequence of his incarceration, the respondent lost his
employment and has no other sources of income. In August 2012, he filed a
petition requesting a reduction in his support obligation to $50 per month, the
minimum support order, based upon a substantial change of circumstances.
See RSA 458-C:7, I(a) (2004 & Supp. 2013).

Following a hearing, the court denied the respondent’s petition, stating:
“[The respondent’s] incarcerated status does not warrant a reduction in his
child support obligation.” The respondent moved for reconsideration, which
the court denied “for the reasons discussed in Noddin v. Noddin, 123 N.H. 73,
76 (1983).” This appeal followed.

On appeal, the respondent argues that the trial court erred: (1) by
concluding that his incarcerated status did not qualify as a substantial change
of circumstances; and (2) by equating incarceration with voluntary
unemployment.

We first address whether the trial court erred by ruling that the
respondent’s incarceration did not qualify as a substantial change of
circumstances. “Because trial courts are in the best position to determine the
parties’ respective needs and their respective abilities to meet them, 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 Muller
& Muller, 164 N.H. 512, 520-21 (2013) (citation omitted).

To resolve this appeal, we must interpret RSA chapter 458-C (2004 &
Supp. 2013). “The interpretation of a statute is a question of law, which we
review de novo. State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 730,
738 (2011). “In matters of statutory interpretation, we are the final arbiter of
the intent of the legislature 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.”
Id. “We interpret legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include.” Id. “We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.”
Id. “Moreover, we do not consider words and phrases in isolation, but rather
within the context of the statute as a whole.” Id.

RSA 458-C:7, I(a) authorizes a parent to apply for modification of an
existing support order:

The obligor or obligee may apply to the court . . . for modification of
such order 3 years after the entry of the last order for support,

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 without the need to show a substantial change of circumstances.
This section shall not prohibit the obligor or obligee from applying
at any time for a modification based on substantial change of
circumstances.

“To obtain a modification of support obligations within three years of the entry
of the last order of support, the moving party must show a substantial change
in circumstances that makes continuing the original order improper and
unfair.” In the Matter of Lynn & Lynn, 158 N.H. 615, 617 (2009). “Although
RSA 458-C:7 does not specify what constitutes a substantial change in
circumstances, the trial court may consider a variety of factors in determining
whether the financial situation of the parties has changed and whether
modification is required.” Id. “In determining whether a substantial change in
circumstances exists, the trial court will look at the needs of the parties and
their respective abilities to meet those needs.” In the Matter of Adams & Houle,
156 N.H. 257, 259 (2007) (quotation omitted). “This is a fact-specific inquiry
that requires the admission of evidence as to the parties’ needs and abilities.”
Id.

Incarceration can have a direct effect on a parent’s income by causing
loss of employment, and the loss of employment-related income can
substantially change an inmate’s ability to pay child support. Furthermore,
inmates lack the ability to obtain new employment while incarcerated.
Because incarceration may cause a substantial change of circumstances
sufficient to warrant modification, the trial court must consider incarceration
when determining whether to modify a child support order. This does not,
however, preclude a court from determining that a parent has remaining
sources of income such that modification is unwarranted. See RSA 458-C:2, IV
(2004 & Supp. 2013).

In this case, the record shows that the respondent’s incarceration caused
a substantial change of circumstances because he lost his employment due to
his incarceration, had no ability to obtain employment while incarcerated, and
possessed no other source of income. As noted above, the trial court relied
upon Noddin v. Noddin, 123 N.H. 73 (1983), when it concluded that the
respondent’s incarceration did not cause a substantial change of
circumstances. This reliance was misplaced. Prior to the enactment of RSA
chapter 458-C, we had held that a parent who was terminated from
employment because of his own wrongdoing was not eligible for a reduction in
support payments due to his reduced ability to pay. Noddin, 123 N.H. at 76.
After the enactment of RSA chapter 458-C, however, we have repeatedly held
that RSA 458-C:2, IV(a) supersedes our decision in Noddin. See In the Matter
of Sarvela & Sarvela, 154 N.H. 426, 436 (2006); In the Matter of Rossino &
Rossino, 153 N.H. 367, 370 (2006). Therefore, the trial court erred by relying

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upon Noddin and by failing to conclude that the respondent’s incarceration
caused a substantial change of circumstances.

We next address whether the trial court erred by concluding that the
respondent’s incarceration constituted voluntary unemployment. “Whether a
party is voluntarily unemployed is a question for the fact finder, whose decision
will not be disturbed on appeal if supported by evidence in the record.” Muller,
164 N.H. at 521. In making this determination, a court should consider the
circumstances surrounding a parent’s departure from employment, including
whether the parent’s termination from prior employment was involuntary,
Sarvela, 154 N.H. at 436, and whether there is evidence of the parent’s intent
to avoid child support payments, Muller, 164 N.H. at 521. “A parent who is
involuntarily terminated from his or her employment . . . did not ‘voluntarily’
become unemployed or underemployed,” even if termination is caused by an
employee’s own wrongful conduct. Sarvela, 154 N.H. at 436 (citation omitted).
Similarly, then, incarceration that causes termination does not cause a parent
to become “voluntarily” unemployed for purposes of modifying a child support
order. Additionally, a party’s intent to avoid child support is relevant to the
question of voluntary unemployment. See Muller, 164 N.H. at 521-22.

There is no evidence in the record from which the trial court could have
found that the respondent is voluntarily unemployed: he was involuntarily
terminated from his employment following his arrest and incarceration.
Likewise, there is no evidence that his motive for committing the crime which
led to his incarceration was to avoid his child support obligations. While a trial
court has discretion to impute income upon a finding of voluntary
unemployment, it cannot impute income without such a finding. See RSA 458-
C:2, IV(a). Therefore, the trial court erred by equating incarceration with
voluntary unemployment and imputing to the respondent his pre-incarceration
income.

Because the respondent had no gross income and was not voluntarily
unemployed or underemployed, the trial court should have applied RSA 458-
C:3, IV(a), which states: “If the obligor parent’s gross income is less than the
self-support reserve and the court has determined that the obligor is not
voluntarily unemployed or underemployed, the court shall order the child
support obligation in the amount of a minimum support order.” Accordingly,
we reverse and remand for entry of an order consistent with this opinion.

Reversed and remanded.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

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