In the Matter of Maureen Murgo and Marc Murgo

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0750, In the Matter of Maureen Murgo
and Marc Murgo, the court on October 2, 2020, issued the
following order:

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

The petitioner, Maureen Murgo (mother), appeals an order of the Circuit
Court (Cross, R., approved by Steckowych, J.), reducing the child support
obligation owed by the respondent, Marc Murgo (father), from the amount
prescribed by the child support guidelines based upon the parties’ shared
parenting schedule. See RSA 458-C:5, I(h)(2) (Supp. 2019). The mother argues
that the trial court erred in deviating from the guidelines because it failed to
properly analyze the factors under RSA 458-C:5, I(h)(2)(A)-(C).

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 Silva and Silva, 171 N.H. 1, 4 (2018). When we determine whether a ruling
is a proper exercise of judicial discretion, we are really deciding whether the
record establishes an objective basis sufficient to sustain the trial court’s
discretionary judgment. Id.

There is a rebuttable presumption that a child support award calculated
under the guidelines is the correct amount of child support. Id.; RSA 458-C:4,
II (2018). This presumption may be overcome, and the trial court may deviate
from the guidelines, when a party shows by a preponderance of the evidence
that the application of the guidelines would be “unjust or inappropriate,” RSA
458-C:4, II, because of “[s]pecial circumstances,” RSA 458-C:5, I (Supp. 2019);
Silva, 171 N.H. at 4. If the trial court deviates from the guidelines, it must
“make written findings as to why a special circumstance pursuant to RSA 458-
C:5 justifies an adjustment from the child support guidelines to avoid an
unjust or inappropriate result.” Silva, 171 N.H. at 4 (quotation omitted); see
RSA 458-C:4, II. Additionally, the trial court must consider any special
circumstances “in light of the best interests of the child.” RSA 458-C:5, I.

RSA 458-C:5, I(h) expressly identifies the parties’ parenting schedule as a
special circumstance, but provides that “[e]qual or approximately equal
parenting residential responsibilities . . . shall not by itself constitute ground
for an adjustment.” RSA 458-C:5, I(h)(1). In considering adjustments to the
application of the child support guidelines based upon the parties’ parenting
schedule, the court may consider three factors:

(A) Whether, in cases of equal or approximately equal residential
responsibility, the parties have agreed to the specific
apportionment of variable expenses for the children, including but
not limited to education, school supplies, day care, after school,
vacation and summer care, extracurricular activities, clothing,
health care coverage costs and uninsured health care costs, and
other child-related expenses.

(B) Whether the obligor parent has established that the equal or
approximately equal residential responsibility will result in a
reduction of any of the fixed costs of child rearing incurred by the
obligee parent.

(C) Whether the income of the lower earning parent enables that
parent to meet the costs of child rearing in a similar or
approximately equal style to that of the other parent.

RSA 458-C:5, I(h)(2)(A)-(C).

Here, the parties agreed to a “shared schedule of parenting time,” but
disagreed as to the amount of monthly child support the father should pay to
support the parties’ two children. The mother sought an order requiring the
father to pay the full guidelines amount, while the father proposed to pay $200
toward the children’s extracurricular activities. The children’s extracurricular
activities and related expenses were the source of ongoing conflict between the
parties.

The trial court found that the father had a monthly income of $7,028, the
mother had a monthly income of $5,865, and the father’s obligation under the
child support guidelines would be $1,399 per month. The court, however,
ordered that the father pay $800 per month in child support. In the Uniform
Support Order, the trial court identified the special circumstances warranting
an adjustment from the guidelines as the parties’ “shared parenting and equal
ability to provide for the children in each home.”

In an accompanying narrative order, the trial court stated that the
mother “shall pay the cost of the children’s extracurricular activities up to a
maximum of $200 per month,” and that the parties would equally share any
cost exceeding $200. The trial court determined that, after deducting the $200
of extracurricular expenses from the $800 of support, the mother would have
$600 remaining in child support. Combined with her income, she would be left
with a total of $6,465 to support the children while they are in her care, while
the husband would have $6,228 per month to support the children while in his

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care. The trial court further noted that, even though the mother would be left
with $237 more per month than the father, the mother “pays state income tax
and must contribute to her pension, so the parties will have a nearly equal
ability to provide the children with similar lifestyles in their respective homes.”

The mother first argues that the trial court erred in deviating from the
child support guidelines when it apportioned $200 of the father’s child support
for extracurricular activities and ordered the parties to split the cost of such
activities that exceed $200. She contends that RSA 458-C:5, I(h)(2)(A) permits
the court to deviate from the child support guidelines based upon equal
parenting time only when the parties agree on the apportionment of variable
expenses. She argues that, because the parties here disagree as to the
apportionment of extracurricular expenses, the amount of support under the
guidelines must apply.

We have held that “extracurricular activity expenses fall into the same
category of basic support as food, shelter and recreation, and as such are
included in the parties’ total support obligation under the guidelines.” In the
Matter of Donovan and Donovan, 152 N.H. 55, 60 (2005). However, the trial
court may deviate from the guidelines when there are special circumstances
relating to extracurricular activities that warrant such a deviation. See id.; see
also In the Matter of Hoyt and Hoyt, 171 N.H. 373, 380 (2018) (upholding the
trial court’s upward deviation from the guidelines based upon the
“extraordinary costs” relating to the youngest child’s after school activities).

Here, the trial court’s order does not specifically state that it relied upon
RSA 458-C:5, I(h)(2)(A) as the basis for its apportionment of the extracurricular
expenses. Nor does it identify any other basis for its apportionment of the
expenses. While the record demonstrates that the parties could not reach an
agreement on their children’s extracurricular activities or the costs relating to
those activities, the trial court did not make factual findings pertaining to the
extracurricular expenses or explain why its deviation from the guidelines is
necessary to avoid an unjust or improper result. In fact, the trial court’s order
does not mention the parties’ dispute; it only notes the father’s proposal to pay
$200 of the extracurricular expenses, which, by itself, does not provide a basis
under the statute to support the deviation. Thus, in the absence of written
findings to support its apportionment of the extracurricular expenses, we
cannot determine whether such a deviation from the guidelines was proper.
Accordingly, we vacate and remand the child support award to allow the trial
court to make written findings to support its determination.

Although the trial court did not identify a basis for its apportionment of
extracurricular expenses, it implicitly relied upon the third factor under RSA
458-C:5, I(h)(2) to justify its $800 child support award. See RSA 458-C:5,
I(h)(2)(C). The mother argues that the trial court failed to make sufficient

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factual findings to show that the parties’ equalized incomes allowed the mother
to provide the children with a similar lifestyle to that of the father.

Because the trial court relied upon its apportionment of the
extracurricular activities in determining its award of $800 per month, we must
also vacate and remand this award. Although the trial court determined that
the award would provide the parties with an approximately equal income, it did
not make findings that demonstrate that the mother’s income will allow her to
meet “the costs of child rearing in a similar or approximately equal style to that
of” the father. Id.; see Silva, 171 N.H. at 8. For example, the trial court did not
set forth findings regarding either party’s monthly expenses or the costs of
child care, nor did it make any determination that the parties’ income was
sufficiently similar, in light of their respective expenses and costs, such that
they each could provide for the children in an approximately equal style. See
Silva, 171 N.H. at 8. Accordingly, on remand, the trial court should make
written findings that demonstrate that the mother’s income, with the added
child support amount, would allow her to cover the costs of child care in a
similar or approximately equal style to that of the father.

Vacated and remanded.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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