In the Matter of Christopher Taylor and Therese Taylor

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0093, In the Matter of Christopher Taylor
and Therese Taylor, the court on November 15, 2016, issued the
following order:

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

The petitioner, Christopher Taylor, appeals the order of the Circuit Court
(Foley, J.) awarding child support and alimony to the respondent, Therese
Taylor. He argues that the trial court erred in: (1) determining his present
income, for purposes of child support, based upon his annual income rather
than his monthly income, which fluctuates; (2) including commissions in gross
income for purposes of calculating child support; (3) requiring him to pay child
support and alimony “arrearages” within sixty days; (4) failing to deviate from
the child support guidelines to avoid a confiscatory support order; (5) including
“in kind” benefits in calculating his gross income; and (6) finding that he has
the ability to pay $1,000 per month in alimony for five years.

The petitioner first argues that the trial court erred by determining his
present income, for purposes of child support, based upon his average income
rather than his monthly income, which fluctuates. We will not disturb the trial
court’s child support ruling absent an unsustainable exercise of discretion or
an error of law. In the Matter of Laura & Scott, 161 N.H. 333, 335 (2010). In
calculating 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);
see RSA 458-C:3, II (Supp. 2015). The trial court makes the final decision as to
what income figures should be used in calculating present income, based upon
the facts presented at the hearing. Crowe, 148 N.H. at 222. The trial court
may rely upon documentation of a party’s past income to determine present
income. See id. at 223. In this case, the trial court found that the best
evidence of the petitioner’s present income, as of the January 21, 2016
hearing, was his year-end paystub for 2015, which showed income of
$217,813.89 for the year, or $18,151.16 per month. The record supports the
court’s finding.

The petitioner argues that the trial court, by determining his income in
this manner, engaged in improper income averaging because his year-end
paystubs included commissions, which fluctuate on a monthly basis.
“Although averaging income over several years is not proper,” Crowe, 148 N.H.
at 222 (emphasis added), “[i]n the case of a parent’s fluctuating income, the
correct course of action is to calculate the parties’ child support obligation
under the guidelines, and then to explain what, if any, circumstances warrant
deviation from that amount,” In the Matter of Hampers & Hampers, 166 N.H.
422, 444 (2014). In this case, the trial court calculated the petitioner’s child
support obligation under the guidelines and did not find circumstances
warranting deviation. See In the Matter of Costa & Costa, 156 N.H. 323, 331
(2007) (We assume that the trial court made all subsidiary findings necessary
to support its decree.). In his motion for reconsideration, the petitioner listed
gross commissions received each month from September 15, 2014 through
December 15, 2015. According to the petitioner’s own calculations, he received
gross commissions of at least $2,500 each month for fourteen of the sixteen
months prior to the hearing. Based upon this record, we cannot conclude that
the trial court unsustainably exercised its discretion in finding that the
circumstances did not warrant deviation from the guidelines. See Laura, 161
N.H. at 335.

The petitioner next argues that the trial court erred by including his
commissions in gross income for purposes of calculating child support, rather
than as net income when the commissions were received. The statutory
definition of “gross income” for child support specifically includes several types
of fluctuating income, including commissions, tips, and bonuses. See RSA
458-C:2, IV (Supp. 2015). “The court, in its discretion, may order that child
support based on one-time or irregular income be paid when the income is
received, rather than be included in the weekly, bi-weekly, or monthly child
support calculation.” RSA 458-C:2, IV(c) (emphasis added). “Such support
shall be based on the applicable percentage of net income.” Id. The statute
does not require the trial court to order commissions to be paid when they are
received. See id. In this case, the petitioner received commissions each of the
sixteen months prior to the hearing. Based upon this record, we cannot
conclude that the court unsustainably exercised its discretion by including the
petitioner’s commissions in its calculation of gross income. See Laura, 161
N.H. at 335.

The petitioner next argues that the trial court erred in requiring him to
pay child support and alimony “arrearages” of $51,941 within sixty days. The
record shows that the respondent first requested child support and alimony on
January 8, 2014. On September 18, 2014, the court ordered the petitioner to
pay $2,219 per month in child support and $800 per month in alimony on a
temporary basis. The court deferred ruling on retroactive child support and
alimony until the parties completed discovery. On March 6, 2015, the
respondent moved to modify child support and alimony and for contempt,
alleging that the petitioner had understated his income on his July 23, 2014
financial affidavit.

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 On January 21, 2016, the court held a final hearing on child support
and alimony. Based upon the evidence presented at the hearing, including
year-end paystubs for 2014 and 2015, the court determined that the
petitioner’s income in 2014 was $19,938.76 per month, and that his income in
2015 was $18,151.16 per month. As previously noted, the court may rely upon
year-end documentation without engaging in improper income averaging,
particularly when the petitioner’s proffered income estimates are unreliable.
See Crowe, 148 N.H. at 223. The court found that the petitioner “understated
his income on every single Financial Affidavit that he has filed with this Court
since, and including, 7/23/14.” The court ordered him to pay alimony of
$2,429 per month starting January 8, 2014, and child support of $3,506 per
month starting September 18, 2014, the approximate date on which the two
older children were living primarily with the respondent. The court increased
child support to $3,866 per month starting January 1, 2015, the approximate
date on which the respondent started sharing residential responsibility for the
parties’ third child under the parenting plan. The court reduced alimony to
$1,600 per month for the period September 18, 2014 through December 31,
2014, and increased it to $2,733 per month for 2015, based upon the parties’
changing financial circumstances. This resulted in a child support and
alimony “arrearage” of $51,941.

The petitioner does not dispute that the trial court, in its January 27,
2016 final order, had the discretion to award child support starting September
18, 2014, and alimony starting January 8, 2014, when the respondent first
requested such support. Rather, he asserts that he reasonably believed that
he had been paying the correct amount of support under the temporary order
and that the court’s final order, which “recaptures income from a prior year” is
“highly disruptive and inappropriate.” He argues that he made good faith
estimates of his commissions, and that when completing financial affidavits, he
was “looking . . . forward,” not “retroactive[ly].” The trial court found this
testimony to be “code for ignoring the factual information regarding his income
that was on each and every paystub he received.” “The credibility and
forthrightness of the noncustodial parent in disclosing income is a factor to be
considered in accepting evidence of net income.” Crowe, 148 N.H. at 223
(quotation omitted). We defer to a trial court’s judgment on such issues as
resolving conflicts in 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).

In his motion for reconsideration, the petitioner asserted that “[a] lump
sum payment on past arrearages is not feasible,” but he did not elaborate. In
his brief, he asserts in a similarly conclusory fashion that requiring him to pay
the arrearage in a lump sum within sixty days constitutes an unsustainable
exercise of discretion. To establish an unsustainable exercise of discretion, the
petitioner must show that the court’s ruling was clearly untenable or
unreasonable to the prejudice of his case. In the Matter of Conner & Conner,
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156 N.H. 250, 252 (2007). Based upon this record, we cannot conclude that
the petitioner demonstrated that the court’s order requiring payment of the
arrearage within sixty days was clearly untenable or unreasonable to the
prejudice of his case. See id.

The petitioner next argues that the trial court erred in failing to deviate
from the child support guidelines to avoid a confiscatory support order. See
RSA 458-C:5, I(j) (2004). He argues that in some months, he may receive
commission income that is insufficient to meet his support obligations.
However, based upon the commissions he reported receiving during the
months September 15, 2014 through December 15, 2015, he may receive
commission income in some months that exceeds the income needed to meet
his support obligations. Based upon this record, we cannot conclude that the
trial court erred in failing to deviate from the guidelines to avoid a confiscatory
support order. See Laura, 161 N.H. at 335.

The petitioner next argues that the trial court erred by including
“in kind” benefits in calculating his gross income. He asserts, for the first time
on appeal, that his paycheck includes line item amounts for certain benefits,
such as an electronics allowance, a benefit supplement, and holiday pay, that
he does not receive in money. See In the Matter of Clark & Clark, 154 N.H.
420, 425 (2006) (concluding that in-kind benefits are not included as items of
“gross income” under RSA 458-C:2, IV). It is a long-standing rule that parties
may not have judicial review of matters not raised in the trial court. In the
Matter of Hampers & Hampers, 154 N.H. 275, 287 (2006). Although we
recognize that the petitioner was self-represented in the trial court, the rules of
preservation are not relaxed for self-represented litigants. In the Matter of
Peirano & Larsen, 155 N.H. 738, 744-45 (2007). Moreover, this issue does not
come within the narrow exception to our preservation requirement that applies
when the trial court fails to follow the “express legislative directive that the level
of child support be calculated according to the guidelines.” See In the Mattter
of Ward & Ward, 148 N.H. 588, 589 (2002) (quotation omitted). Because the
petitioner has failed to demonstrate that he raised this issue in the trial court,
we decline to review it on appeal. See Peirano, 155 N.H. at 744-45. We note
further that even if the petitioner had raised this issue in the trial court, the
court would have had the discretion to consider his in-kind benefits as a
special circumstance warranting an upward deviation from the guidelines
under RSA 458-C:5. See Clark, 154 N.H. at 425.

Finally, the petitioner argues that the trial court erred in finding that he
has the ability to pay $1,000 per month in alimony for five years, asserting that
in months when his commissions are lower than average, he will be unable to
pay alimony. The trial court is afforded broad discretion in awarding alimony.
In the Matter of Nassar & Nassar, 156 N.H. 769, 772 (2008). We will not
overturn the trial court’s decision absent an unsustainable exercise of
discretion. Id. The petitioner’s base salary is $9,166 per month. As previously
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noted, by his own calculation, he received gross commissions in excess of
$2,500 in fourteen of the sixteen months preceding the hearing. Based upon
this record, we cannot conclude that the court unsustainably exercised its
discretion in its alimony award. See id.

We have considered the petitioner’s remaining arguments and conclude
that they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49
(2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321,
322 (1993).

Affirmed.

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

Eileen Fox,
Clerk

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