In the Matter of Joy Gagnon and Gary Gagnon

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0297, In the Matter of Joy Gagnon and
Gary Gagnon, the court on April 10, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The respondent, Gary Gagnon (Husband), appeals the final
decree issued by the Circuit Court (Countway, J.) in his divorce from the
petitioner, Joy Gagnon (Wife). On appeal, he challenges the trial court’s child
support order and property division. We affirm.

The trial court has broad discretion in fashioning a final divorce
decree. In the Matter of Braunstein & Braunstein, 173 N.H. 38, 46 (2020). Its
discretion necessarily encompasses decisions concerning child support and
property division. Id. We will not overturn the trial court’s rulings on such
matters absent an unsustainable exercise of discretion. Id. at 47. This
standard of review means that we review only whether the record establishes
an objective basis sufficient to sustain the discretionary judgment made, and
we will not disturb the trial court’s determination if it could reasonably have
been made. Id. We will not substitute our judgment for that of the trial court
or reweigh equities. Id. We also defer to the trial court’s judgment in matters
of conflicting testimony, evaluating witness credibility, and deciding the weight
to be accorded evidence. Id.

The trial court’s discretion extends to matters such as assigning weight
to evidence and assessing the credibility and demeanor of witnesses. In the
Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011). Conflicts in the
testimony, questions about the credibility of witnesses, and the weight
assigned to testimony are matters for the trial court to resolve. Id. The trial
court’s factual “findings . . . are binding upon this court if they are supported
by the evidence” and are not legally erroneous. Id.

We first consider Husband’s challenges to the trial court’s child support
order. In the trial court, Wife sought child support of $1,007 monthly based
upon imputing monthly income to Husband of $4,333.33 and a finding that he
is underemployed. Husband sought a zero-support order based upon the
parties’ equal parenting time.

The trial court rejected both proposals. Utilizing the income reported in
the parties’ financial affidavits, the trial court determined that Husband would
be obligated to pay $870 per month under the child support guidelines. The
court acknowledged that, theoretically, a zero-support order “would be logical
in this case[] if the parties could fairly share child-related expenses,” but
decided that, because the parties struggle with sharing such expenses, issuing
a zero-support order was not in the children’s best interests. Specifically, the
court found that Wife “had had difficulty in collecting for reasonable child-
related medical expenses from [Husband],” and “has taken on the role of
organizing, and paying for, routine care and activities and the related expenses
for the children.” So as “to avoid a confiscatory order, and . . . ensure that
both parties have a full opportunity to provide for the children during their
parenting time,” the court ordered Husband to pay $600 monthly, concluding
that the downward deviation was appropriate “based upon the shared
parenting schedule” and “the earning potential of both parties, considering
both parents’ ability to maintain a reasonable lifestyle for the children.”

Husband contends that, by considering Wife’s “role of organizing, and
paying for, routine care and activities and the related expenses thereof for the
children,” the court “included a reason for determining child support that is
not listed in the statute, is not economic in nature and does not relate to a
parent’s financial condition upon his/her ability to meet a child’s need.” We
disagree.

New Hampshire’s child support guidelines, codified in RSA chapter 458-
C, establish a uniform system for determining child support awards. In the
Matter of Silva & Silva, 171 N.H. 1, 4 (2018). Pursuant to RSA 458-C:4, II,
there is a rebuttable presumption that an award calculated under the child
support guidelines is the correct amount of child support. RSA 458-C:4, II
(2018). RSA 458-C:4, II provides that this presumption may be overcome, and
the trial court may deviate from the guidelines, when it finds by a
preponderance of the evidence, that applying the guidelines would be “unjust
or inappropriate,” based upon “[s]pecial circumstances” set forth in RSA 458-
C:5, I. Id.

RSA 458-C:5, I, “includes a non-exclusive list of special circumstances
that, if raised by a party or the court, the court shall consider in making an
adjustment that deviates from the child support guidelines.” Silva, 171 N.H. at
4; see RSA 458-C:5, I (Supp. 2022). Although this list is non-exclusive, we
have interpreted “special circumstances” to include only circumstances that
are “economic in nature and relate to the impact of a parent’s financial
condition upon his or her ability to meet a child’s needs.” Silva, 171 N.H. at 4
(quotation omitted). Additionally, the trial court must consider any special
circumstances “in light of the best interests of the child.” RSA 458-C:5, I.

We find no error in the trial court’s consideration of the parties’ struggle
to share child-related expenses, including medical expenses and the expenses
for “routine care and activities.” Indeed, RSA 458-C:5, I(h)(1) specifically

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authorizes the court to consider such factors. RSA 458-C:5, I(h)(1) provides
that “[e]qual or approximately equal parenting residential responsibilities in
and of itself shall not eliminate the need for child support and shall not by
itself constitute ground for an adjustment.” The statute further provides that,
in considering requests for adjustments to the application of the child support
guidelines based upon the parenting schedule, the court “may” consider:

(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 insurance costs and uninsured health 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). Given this statutory language, we conclude that
the trial court did not err by considering the parties’ difficulties sharing
expenses for the children.

We next consider Husband’s challenges to the property distribution. In
New Hampshire, by statute, “all tangible and intangible property and assets,
real or personal, belonging to either or both parties, whether title to the
property is held in the name of either or both parties,” is subject to equitable
distribution. RSA 458:16-a (2018). In a divorce proceeding, marital property is
not to be divided by some mechanical formula, but in a manner deemed “just”
based upon the evidence presented and the equities of the case. In the Matter
of Costa & Costa, 156 N.H. 323, 327 (2007).

Under RSA 458:16-a, II, “an equal division of property is presumed
equitable unless the trial court decides otherwise after considering one or more
of the factors designated in the statute.” In the Matter of Geraghty & Geraghty,
169 N.H. 404, 417 (2016) (quotation omitted). The statute lists factors that the
court may consider, see RSA 458:16-a, II, and also permits the court to
consider any other factor it deems relevant, see RSA 458:16-a, II(o); see also In
the Matter of Sarvela & Sarvela, 154 N.H. 426, 431 (2006). The court need not
consider all of the enumerated factors or give them equal weight. Geraghty,
169 N.H. at 417. Additionally, a trial court is not precluded from awarding a

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particular asset in its entirety to one party. In the Matter of Salesky & Salesky,
157 N.H. 698, 708 (2008).

The trial court equally divided between the parties the equity in the
marital home and the proceeds from the sale of other real estate owned by the
parties. Each party was awarded his or her vehicle(s), retirement plans, and
bank accounts, free and clear of the other party’s interest. Wife was made
solely responsible for certain of her credit card debt and her student loans;
Husband was made solely responsible for certain of his credit card debt and
the debt associated with his business. The court attributed no value to the
business itself, although it awarded the business to Husband.

Husband argues that the trial court’s property distribution was
inequitable, in part, because the court did not “credit” him with bringing real
estate into the marriage. This argument essentially asks us to reweigh the
equities in this case, which is not our role on appeal. Braunstein, 173 N.H. at
47.

Husband argues that the property distribution was inequitable also
because the court assigned no value to his now defunct business and made
him solely responsible for its associated debt. The trial court found
“insufficient evidence to ascribe any value, either positive or negative to the
business.” Because this finding is supported by evidence in the record and is
not legally erroneous, we uphold it. See id. at 46-47.

The trial court’s allocation of the business debt solely to Husband was
within its discretion. The trial court has discretion to allocate responsibility for
debts in the manner it deems equitable. See Costa, 156 N.H. at 327-28
(affirming trial court’s assignment of approximately $252,000 in debt to the
petitioner, which might otherwise have been assignable in whole or in part to
the respondent). In this case, the court awarded the business to Husband and
ruled that he was responsible for any associated debt because Wife “played
little to no role in the business.” The record supports these factual findings.
Based upon this record, we conclude that Husband has failed to demonstrate
that the trial court unsustainably exercised its discretion in the division of the
parties’ debts.

Affirmed.

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

Timothy A. Gudas,
Clerk

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