In the Matter of Greydon Colby and Alicia Colby

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0007, In the Matter of Greydon Colby and
Alicia Colby, the court on January 23, 2015, issued the following
order:

Having considered the brief, the reply brief, the memorandum of law, and
the record submitted on appeal, we conclude that oral argument is unnecessary
in this case. See Sup. Ct. R. 18(1). We affirm.

The petitioner, Greydon Colby (father), appeals the determination of his
income for the purposes of child support in a final decree issued by the Circuit
Court (Tenney, J.) in his divorce from the respondent, Alicia Colby (mother). See
RSA 458-C:2, IV (2004). He contends that the trial court erred by: (1)
disallowing his “Dues and Subscription expenses as a deductible business
expense”; and (2) adding $15,000 to his gross receipts “because it believed [he]
was not depositing all of the incoming cash from his carpentry business into his
bank account.” We assume, without deciding, that these issues are preserved for
our review.

We will uphold the trial court’s decision with respect to child support
unless it is unsupported by the evidence or tainted by an error of law. In the
Matter of Hampers & Hampers, 154 N.H. 275, 283 (2006) (Hampers I). We defer
to the trial court’s judgment on such issues as resolving conflicts in the
testimony, measuring the credibility of witnesses, and determining the weight to
be given evidence. In the Matter of Aube & Aube, 158 N.H. 459, 465 (2009). The
fact finder may accept or reject, in whole or in part, the testimony of any witness
or party and is not required to believe even uncontested evidence. Id. at 466. If
the trial court’s findings can reasonably be made on the evidence presented, they
will stand. In the Matter of Brownell & Brownell, 163 N.H. 593, 596 (2012).

We first address the trial court’s disallowance of the father’s “Dues and
Subscription expenses.” To be deductible for purposes of determining self-
employment income under RSA 458–C:2, IV, business expenses must be actually
incurred and paid and must be reasonable and necessary for producing income.
In the Matter of Woolsey & Woolsey, 164 N.H. 301, 307 (2012). Whether to
deduct reasonable and necessary expenses from the business’s income
distributions when calculating a parent’s income for child support purposes is a
highly fact-specific determination. In the Matter of Hampers & Hampers, 166
N.H. 422, 440 (2014) (Hampers II). It is for the trial judge to determine whether
claimed expenses meet the criteria. Woolsey, 164 N.H. at 307. The burden is on
the party claiming the expenses to establish their deductibility. Hampers II, 166
N.H. at 440.

In this case, the father has provided us with transcripts of only two of the
four days of hearings. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004); see also Sup. Ct. R. 13. The mother asserts, and the father does not
contest, that he “failed to include the transcript of his cross examination in which
the specific nature of these fees was addressed,” and that his “cross-examination
specifically supports the Court’s refusal to deduct the subscription and dues
expenses as being unrelated to any income earned by” him. The father does not
cite to any evidence in the record compelling a finding that these expenses are
reasonable and necessary. Instead, he argues that one of these expenses “was
listed as a franchise fee” and “[i]t is reasonable to assume that [he] would not pay
$3,000 to a franchise fee that was not necessary for producing income.”

Because it is the father’s burden to provide a record that is sufficient to
decide the issues he is raising and because the father has not provided a
complete transcript, we assume that those portions of the final hearing that have
not been transcribed support the trial court’s findings regarding the deductibility
of these expenses. See Bean, 151 N.H. at 250; see also Sup. Ct. R. 15(3)
(providing that if appealing party challenges evidentiary support for finding,
appealing party shall provide transcript of all relevant evidence, which shall
contain all oral proceedings, with limited exceptions not at issue here, absent an
order to the contrary).

We next address the trial court’s addition of $15,000 to the father’s gross
receipts to account for the “regular and somewhat substantial cash income that
was not deposited into his account, which [it concluded] cannot be overlooked.”
The trial court also found this addition to the father’s gross receipts necessary
because the father unfairly calculated his annual income on the basis of a
fifteen-month period, which may have included two seasonally-slow quarters,
thereby “possibly disproportionately lowering his gross income when fifteen
months is adjusted to twelve months.”

The trial court found that “[i]t is clear that all of [the father’s] income was
not deposited or included in the gross income numbers” he presented to the trial
court. It also found that “[t]he ATM withdrawals [shown on the father’s bank
statements] don’t come close to being able to pay everything he allegedly paid in
cash” and that “[h]e also had regular living expenses that he likely would have
used cash for that can’t be accounted for.” It found that the father’s accountant
testified that the father paid some truck payments and some liability insurance
payments in cash. Furthermore, it found that some of the business payments
the father claimed as expenses included cash back to him, which he also claimed
as expense. In addition, the trial court referred to a $12,000 deposit, which the
mother asserts was not included on the father’s income and expense exhibit.

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 The father argues that these findings were unsupported by the evidence.
He contends that “[s]ince the trial court specifically concluded that [he] did not
actually pay nearly half of his truck expenses, it was clearly erroneous to later
add income based upon the assumption that these payments were made in cash
exceeding the amount of ATM withdrawals.” However, the trial court concluded
that “some [auto] expenses, like the truck payments, have not been
corroborated.” See Hampers II, 166 N.H. at 440 (burden on party claiming
expense to show it is deductible for purposes of determining self-employment
income). It also noted that the father’s accountant testified that “it [was] his
understanding that some of the truck payments were paid in cash or by Western
Union,” but that “[h]e could not explain where the cash would have come from”
and that “the lack of documentation . . . appears to show that [the father] did
have access to cash on [sic] some months.”

The father argues that the cash payments came from a “cash cushion”
created by excess ATM withdrawals. However, the trial court found that “it was
clear that there was insufficient cash from the withdrawals to come close to
making all of the payments that potentially might have been made by cash.” The
father argues that he did not pay his truck loan every month. However, the trial
court noted that the father’s accountant testified that the father told the
accountant that “he made all of his truck payments.” See Aube, 158 N.H. at 465
(stating we rely upon trial court to resolve conflicts in evidence). The father
states that he received personal loans, but does not develop this argument. See
State v. Blackmer, 149 N.H. 47, 49 (2003).

The father argues that the trial court’s “narrow view of three cash
payments [for business expenses] on two separate days does not support a
finding that [the father] earned an additional $15,000 in income.” However, the
trial court’s order relied upon more than those transactions to reach its
conclusion that “it is clear that all of [the father’s] income was not deposited or
included in the gross income numbers” and that he “obviously had access to
quite a lot of cash.” Furthermore, the transcripts that the father did not provide
may include additional evidence supporting these conclusions. See Bean, 151
N.H. at 250.

Finally, the father argues that the trial court’s addition of $15,000 to his
gross receipts is “illogical” and “arbitrary.” However, the trial court was faced
with the difficult task of determining his income “in spite of all of the
expenses/payments/income that didn’t match up in [his accountant’s]
testimony.” The trial court noted that the father’s accountant’s testimony was
“not that helpful” because “[i]t appears that [the accountant] was given some
inaccurate or insufficient information which he relied on to calculate [the father’s]
profit and loss statement and [the father’s] net income.” The trial court
concluded that $15,000 was “a rough estimate, but it would be unfair to [the
mother] not to consider the cash not deposited, which clearly existed, but which
[the father] denied.” The trial court noted that the resulting net income was less

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than that which the mother testified the father earned during the marriage, when
she kept his business accounts, and less than that found by the trial court in
response to the father’s 2012 motion for modification of the temporary child
support order.

Under these circumstances, we conclude that the trial court’s finding that
adding $15,000 to the father’s annual gross receipts was necessary to account
for his cash income could reasonably be made on the evidence presented. See
Brownell, 163 N.H. at 596.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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