In the Matter of Rhonda Keogh and John Keogh

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0197, In the Matter of Rhonda Keogh and
John Keogh, the court on March 23, 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 petitioner, Rhonda Clark f/k/a Rhonda Keogh, appeals orders of the
Circuit Court (Hall, J.), issued following a hearing on a motion by the
respondent, John Keogh, to modify child support based upon the passage of
three years, see RSA 458-C:7, I (2018), in which the trial court: (1) ordered the
respondent to pay monthly child support of $0; and (2) declined to compel the
respondent to pay certain child support under the prior support order. The
petitioner argues that the trial court erred by finding that she is voluntarily
underemployed, imposing a support obligation of $0, and not compelling the
respondent to pay child support owed under the prior support order. We affirm
in part, reverse in part, vacate in part, and remand.

The trial court has broad discretion in reviewing and modifying child
support orders. In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 140 (2020).
We will uphold the trial court’s rulings regarding child support absent an
unsustainable exercise of discretion or error of law. Id. In reviewing whether
the trial court sustainably exercised its discretion, we examine whether the
record establishes an objective basis sufficient to sustain the trial court’s
discretionary judgments. In the Matter of Silva & Silva, 171 N.H. 1, 4 (2018).
The trial court’s factual findings are binding upon us if they are supported by
evidence and are not legally erroneous. In the Matter of Summers & Summers,
172 N.H. 474, 479 (2019). Resolving conflicts in testimony, determining the
credibility of witnesses, and evaluating the weight of the evidence presented are
matters for the trial court to resolve. Id.

RSA chapter 458-C (2018 & Supp. 2020), which codifies the New
Hampshire child support guidelines, establishes a uniform system to determine
the amount of child support awards. Silva, 171 N.H. at 4. The statute’s
purposes include establishing uniformity in determining the amount of child
support obligations and ensuring that both of a child’s parents share in the
responsibility to support the child according to the relative percentage of each
parent’s income. Id. There is a rebuttable presumption that the amount of a
child support award calculated pursuant to the statute is correct. Ndyaija, 173
N.H. at 141; RSA 458-C:4, II. That presumption may be overcome, however, if
a party demonstrates by a preponderance of evidence that application of the
guidelines would be “unjust or inappropriate” due to “[s]pecial circumstances.”
RSA 458-C:4, II, :5, I; Ndyaija, 173 N.H. at 141-42.
 RSA 458-C:5, I, contains a non-exhaustive list of special circumstances
that, if raised by a party or the court, the trial court must consider in
determining whether to deviate from the child support guidelines. Ndyaija, 173
N.H. at 142. “Special circumstances” include only those circumstances that
are economic in nature and relate to the impact of a parent’s financial
condition on his or her ability to meet the child’s needs. Id. The trial court
must consider any relevant special circumstance in light of the best interest of
the child. Id.; RSA 458-C:5, I. In deviating from the child support guidelines,
the trial court is required to make specific findings of fact as to why a special
circumstance justifies deviating from the child support guidelines in order to
avoid an unjust or inappropriate result. Silva, 171 N.H. at 4; RSA 458-C:4, II.

In this case, the trial court imputed gross monthly income to the
petitioner of $2,917 on the basis that she is voluntarily underemployed. See
RSA 458-C:2, IV(a). Whether a party is voluntarily underemployed is a
question of fact, In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014), and
we reject the petitioner’s argument that the finding of voluntary
underemployment in this case was not reasonably supported by the evidence.
The trial court further determined that the respondent’s gross monthly income
is $14,606. Pursuant to the child support guidelines, the trial court
determined that the respondent’s monthly child support obligation would be
$3,263.1

In deviating downward from this amount to $0, the trial court first cited
RSA 458-C:5, I(c), which allows the court to deviate from the guidelines based
upon “[t]he economic consequences of the presence of stepparents, step-
children or natural or adopted children.” The trial court found that, based
upon the income of her current spouse, the petitioner is “able to enjoy a very
comfortable lifestyle,” and that the parties’ three children “benefit from the
lifestyle that [the spouse’s] income allows when they are with [the petitioner,
her spouse,] and their toddler son.” The trial court further relied upon RSA
458-C:5, I(h)(2)(C), which allows the court to deviate from the guidelines based
upon the parties’ parenting schedule when “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.” The trial court found
that the petitioner’s “household income demonstrates that she is able to afford
the costs associated with maintaining her home, and other child rearing
expenses, such as food, clothing, school supplies, and family vacations.” In
contrast to the petitioner, the trial court found that the respondent “is not able
to meet the costs of child rearing in a manner similar to that in the mother’s
home if required to pay guideline child support.”

1 In arriving at this figure, it appears that the trial court utilized a monthly gross income figure

for the petitioner of $2,971, not the $2,917 monthly income (or $35,000 annual income) figure
that it had imputed to the petitioner in its narrative order. Because the accuracy of the trial
court’s calculation of the child support guidelines amount is not before us, we will assume,
without deciding, that $3,263 per month accurately reflects what the respondent would owe in
child support under the child support guidelines.
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 Contrary to the trial court’s analysis, RSA 458-C:5, I(h)(2)(C) allows the
trial court to deviate from the guidelines when “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)(C)
(emphasis added). Here, the petitioner, not the respondent, is the “lower
earning parent.” The trial court did not consider whether the petitioner’s
imputed income of $2,917 allows her to meet the costs of child rearing in a
similar or approximately equal style of living that the respondent’s $14,606
allows him to provide the children. Instead, it considered the petitioner’s
“household income,” that is, the income from her spouse. The trial court’s
findings are insufficient to establish that the petitioner, on an income of
$2,917, is able to provide the children with a style of living similar to that
which the respondent can provide on an income of $14,606. See Silva, 171
N.H. at 8 (ruling that, although children benefitted from property awarded to
mother, the trial court’s findings were insufficient to support its conclusion
that, notwithstanding a monthly income disparity of $4,000, mother’s income
allowed her to meet costs of child rearing in manner similar to that of father).

Although the trial court also cited RSA 458-C:5, I(c), its findings of fact
fail to establish the actual economic impact that the spouse’s salary has on the
petitioner’s ability to meet her children’s needs with a gross income of $2,917
when compared with the style of living the respondent is able to provide with a
gross income of $14,606. Moreover, as the petitioner observes, the trial court’s
analysis under RSA 458-C:5, I(c) fails to account for the economic impact of the
child that she has with her spouse, or of the support that the respondent
testified he also receives from his domestic partner. Accordingly, we vacate the
trial court’s decision to deviate from the guidelines amount of $3,263 to $0,
and remand for further proceedings consistent with this order.

Finally, we address the petitioner’s argument that the trial court erred by
not compelling the respondent to pay child support owed under the prior
support order. The trial court made its modified child support order effective
February 1, 2020. Under the prior support order, the respondent was
obligated to pay child support of 20% on all commissions and bonus income.
The petitioner asserts, and the respondent does not dispute, that the
respondent did not pay child support on commissions earned in January 2020,
when the prior order was in effect. The respondent contends that, because his
payment of child support on January 2020 commissions was not “due” under
the terms of the prior support order until February 7, 2020, and because the
new support order was effective February 1, 2020, he was not obligated to pay
child support on the January 2020 commissions. In denying the petitioner’s
motion to compel payment of child support on the January 2020 commission

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income, the trial court reasoned that the motion was “moot, given that the final
hearing was held on 1/24/2020 and orders have issued.”2

The motion was not “moot.” Under the prior child support order, which
was in effect prior to February 1, 2020, the respondent was obligated to pay
child support of 20% on all commission and bonus income received over his
base salary. The respondent does not dispute that he did not comply with this
obligation with respect to commission income received in January 2020.
Although the respondent’s ultimate payment of child support to the petitioner
based upon January 2020 commission income may not have been “due” until
February 7, 2020, his obligation arose when he received the income and, thus,
he was subject to the support order then in effect. Accordingly, the trial court
erred by denying the motion to compel.

In sum, we affirm the trial court’s determination that the petitioner is
voluntarily underemployed, vacate its decision to award $0 in child support,
reverse its denial of the petitioner’s motion to compel the payment of child
support on commission income earned in January 2020, and remand for
further proceedings consistent with this order.

Affirmed in part; reversed in
part; vacated in part; and
remanded.

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

Timothy A. Gudas,
Clerk

2 We note that, according to the trial court’s order on the merits of the respondent’s motion to

modify child support, the final hearing was held on November 20, 2019, not January 24, 2020;
rather, the trial court’s order on the merits of the motion to modify was issued on January 24,
2020.
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