In the Matter of Rebecca Binder and Paul Binder, Jr.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0342, In the Matter of Rebecca Binder
and Paul Binder, Jr., the court on February 28, 2019, issued the
following order:

Having considered briefs filed by the defendant, Paul Binder, Jr. (father),
and the plaintiff, Rebecca Binder (mother), and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The father appeals a May 2018 order of the Circuit Court (Leonard, J.)
denying his motion to “enforce” a July 2014 child-support order. We affirm.

The father and the mother share two children, a daughter born in 2005
and a son born in 2007. As of January 2012, the father’s total child support
obligation was $208 per week, which included $49 per week to pay an
arrearage.

In May 2013, the mother filed a petition to modify the father’s child
support obligation alleging that the father should pay more because, in
addition to base pay, he also earned overtime and commissions. The father
argued that the court should not include his commissions as income for child
support purposes, but that, instead, it should order him to provide the mother
with a percentage of each commission upon his receipt of same. The trial court
agreed with the father and, in a November 2013 order, required him to pay, in
addition to child support based upon his regular pay, “32.79% of any
commissions, bonuses or other irregular income within 7 days of his receipt of
same.” Neither party appealed the trial court’s November 2013 order.

In May 2014, the parties again appeared before the court on the mother’s
motion for contempt in which she alleged that the father had not paid her the
percentage of commissions directly. In a July 2014 order, the trial court
required that “[a]ll future payments of 32.79% net of any commissions,
bonuses or other irregular income shall be paid to [the mother] within seven
days of receipt by [the father].”

In March 2018, the trial court held a hearing at which both parties were
present (the father with counsel, the mother self-represented) on the father’s
petition to modify child support and the mother’s motion for contempt. A
transcript of that hearing has not been provided as part of the appellate record.
As a result of that hearing, the trial court found that “the father’s base monthly
income, on which he shall pay ‘base’ child support, is $5,844,” and that his
“‘base’ child support obligation is $1,297 per month or $300 per week.” The
court ordered the father to pay “additional child support of 29.66% of the net of
his ‘Personal Leave,’ ‘Sunday worked Premium,’ ‘Commissions,’ and ‘Taxable
Award (gift cards)’ within 7 days of receiving that income.” The effective date of
the modifications to the father’s child support obligation was April 12, 2017,
the presumed date of service of the father’s petition to modify child support.

The father filed a motion to reconsider or clarify the trial court’s March
2018 order in which he argued, in relevant part:

The Court’s order overlooked the issue of overpayment that
was raised by the [father] during trial. The July 2014 order that
last modified child support in this case provides[,] “All future
payments of 32.79% net of any commissions, bonuses or other
irregular income shall be paid . . . to [the mother] within seven
days of receipt by [the father].” [The father] testified through
representations of counsel that since July 2014 he has paid
32.79% of his gross commissions, bonuses, and other irregular
income not the net amount ordered. [The father] submitted to this
Court every commission statement he has received since August
2014 along with a chart summarizing the amount he paid on his
gross, the amount he should have paid on his net, and the amount
of his overpayment. The exhibits were accepted in evidence
without any objection by [the mother].

. . . Fairness dictates that this overpayment must be addressed
and credited to the [father] against future payments of child
support. Between August 2014 and April 12, 2017, the date of
service, [the father] paid $28,413.02 to [the mother] on his gross
commissions, when he should have paid $17,857.40 on his net
commissions. This overpayment of $10,555.62 must be credited to
[the father]. The Court has the relevant evidence to address this
issue.

The trial court specifically denied this part of the father’s motion. The father
did not appeal that denial to this court.

In May 2018, in a new motion to “enforce” the trial court’s July 2014
child support order, the father made the same argument and sought similar
relief. The mother objected to the father’s May 2018 motion to “enforce,”
observing that this was the third time he had requested the same relief, and
arguing that although the father had paid a percentage of his gross
commissions to the mother, he had not paid her any of the irregular income he
earns from taxable rewards, bonuses, and overtime. The trial court denied the
father’s motion for the reasons stated in the mother’s objection. This appeal
followed.

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 On appeal, the father asserts that he is entitled to restitution because
the mother “was unjustly enriched when she passively accepted the benefit of
additional and tax-free child support payments” and because “[i]t is
unconscionable for her to retain that benefit.” He requests that we either
reverse the trial court’s denial of his motion to “enforce” and grant him a credit
for the $10,555.62 he overpaid “or remand the issue . . . for a further hearing.”

“Restitution is an equitable remedy typically applied to contracts implied
by law to disgorge the benefit of unjust enrichment.” In the Matter of Haller &
Mills, 150 N.H. 427, 430 (2003). For the purpose of this appeal, we assume
without deciding that restitution may be ordered in a child support case. “To
be entitled to restitution, there must not only be unjust enrichment, but also
the person sought to be charged must have wrongly secured a benefit or
passively received one which it would be unconscionable to retain.” Id.
(quotation and brackets omitted). Unless unsupported by the record, we
generally defer to the trial court’s determination as to whether the facts and
equities in a particular case warrant such a remedy. Pella Windows and Doors
v. Faraci, 133 N.H. 585, 586 (1990). We review the trial court’s decision to
grant or deny restitution under our unsustainable exercise of discretion
standard. See Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659, 669 (2013).

According to the father’s pleadings, he first raised the issue of the
overpayment at the March 2018 hearing. Although the father has not provided
a transcript of that hearing, in his motion to reconsider/clarify the trial court’s
order issued after that hearing, he stated that he “testified through
representations of counsel that since July 2014 he has paid 32.79% of his
gross commissions, bonuses, and other irregular income not the net amount
ordered,” and that he “submitted . . . every commission statement he has
received since August 2014 along with a chart summarizing the amount he
paid on his gross, the amount he should have paid on his net, and the amount
of his overpayment.” According to the father, the trial court accepted those
exhibits in evidence.

The father again raised the overpayment issue in his motion to
reconsider/clarify the trial court’s March 2018 order. Although he did not use
the terms “unjust enrichment” or “restitution,” he argued in that motion that
“[f]airness dictates that th[e] overpayment must be addressed” and that he
should receive a credit against future child support payments. The trial court
denied that relief when it denied his motion, and the father did not appeal the
trial court’s denial. Given this procedural history, we cannot conclude that the
trial court unsustainably exercised its discretion by denying the father’s May
2018 motion to “enforce” or by failing to schedule an additional hearing on the
overpayment issue. See Provencher v. Buzzell-Plourde Assoc., 142 N.H. 848,
851 (1998) (noting that we review trial court’s “decision not to hold a hearing
for an abuse of discretion”); see also State v. Lambert, 147 N.H. 295, 296

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(2001) (explaining that we refer to abuse of discretion standard as the
unsustainable exercise of discretion standard).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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