In the Matter of Vivian Silva and Robert Silva

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0152, In the Matter of Vivian Silva and
Robert Silva, the court on February 16, 2021, 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).
The respondent, Robert Silva (husband), appeals the order of the Circuit Court
(Introcaso, J.) on his motion to modify child support and for contempt, arguing
that the trial court erred by failing to address his request for an adjustment to
the child support guidelines. We vacate and remand.

The record shows that, in 2016, the trial court, following a hearing,
issued a child support order deviating downward from the child support
guidelines based upon findings of special circumstances relating to the parties’
shared parenting schedule. See RSA 458-C:5, I(h)(2) (Supp. 2020). The
adjustment reduced the husband’s child support obligation from $1,590 per
month to $533.80 per month. The petitioner, Vivian Girard (wife), appealed.
On appeal, we concluded that the trial court’s findings were insufficient to
support its order, in part “because the court did not explain why a departure
from the guidelines was necessary to avoid an unjust or inappropriate result.”
In the Matter of Silva & Silva, 171 N.H. 1, 9 (2018); RSA 458-C:4, II (2018). On
remand, the trial court made additional findings to support its decision and
reaffirmed its prior order. We declined the wife’s discretionary appeal. See In
the Matter of Vivian Silva and Robert Silva, No. 2019-0390 (N.H. Aug. 9, 2019).

While the wife’s first appeal was pending, the husband filed a motion in
the trial court to modify child support, which was stayed pending appeal. In
his proposed support order, and at the hearing on his motion, which was held
at the same time as the remand hearing, the husband sought an additional
downward deviation from the child support guidelines based upon the wife’s
increased earnings from her new, full-time employment. The trial court did not
rule on the motion in its order on remand; instead, the court stated that it
would issue a separate order. Months later, the trial court, without a further
hearing and without referencing any of the findings in its order on remand,
ordered guideline support. The husband argues that the trial court erred by
failing to address his request for an adjustment to the guidelines based upon
special circumstances.

RSA 458-C:5 (Supp. 2020) lists special circumstances that the trial court
must consider, if raised by a party or the court, that may result in adjustments
to the application of support guidelines. The statute further provides that the
court “shall make written findings” relative to the applicability of such special
circumstances. See RSA 458-C:5, I. Given the trial court’s order on remand
finding that special circumstances warranted an adjustment to the guidelines,
and the husband’s request for an additional adjustment, we conclude that it
was incumbent upon the trial court, in ruling upon the husband’s motion, to
make written findings as to whether special circumstances continued to exist,
and whether they continued to warrant adjustments to the guidelines, before
ordering guideline support. See id. Accordingly, we vacate the court’s order
and remand for further findings consistent with this order.

In light of our decision, we need not address the husband’s argument
that the trial court’s order constituted an unsustainable exercise of discretion.

The husband also argues that the trial court erred by: (1) not
determining the amount of child support arrearage; (2) ordering a wage
assignment; (3) deducting income for self-employment taxes; and (4) not ruling
on his motion for contempt. The trial court shall address these issues on
remand.

Vacated and remanded.

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

Timothy A. Gudas,
Clerk

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