In the Matter of Jennifer Milliken and Craig Milliken

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0405, In the Matter of Jennifer Milliken
and Craig Milliken, the court on October 2, 2024, 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, Craig Milliken (Husband), appeals several
decisions made by the Circuit Court (Swegart, J.) related to Husband’s divorce
from the petitioner, Jennifer Milliken (Wife). We affirm.

The following facts are supported by the record. Husband and Wife are
the parents of one child born in September 2016. In June 2021, Wife
petitioned for divorce. In July 2022, the parties, by agreement, filed a final
divorce decree, a final parenting plan, and a final uniform support order (USO).
The proposed USO deviated downward from the statutory guidelines, requiring
Husband to pay $300 per month rather than $404 bi-weekly as established by
the guidelines. It indicated that the parenting schedule constituted a special
circumstance warranting an adjustment from the guidelines.

In August 2022, the circuit court issued an order approving all agreed-
upon orders except the proposed USO. The court stated, “Section 6 of the USO
indicates only ‘parenting schedule’ as a statutory basis for downward departure
from the guidelines amount” and “NH RSA 458-C requires more than just equal
or approximately equal parenting schedule to depart downward.” The court
ordered that “[t]he parties may re-submit a new USO with statutorily sufficient
explanation for a downward departure from guidelines,” but if they did not
submit a new USO, the court would hold a hearing to address child support.
The parties did not move to reconsider the court’s order and did not submit an
agreed-upon revised USO.

In April 2023, the court held a final hearing on child support. On the
same day, Husband filed a motion to modify the parenting plan. At the
hearing, Wife argued for a final USO in accordance with the child support
guidelines. Husband argued for a downward deviation from the guidelines.
The court issued a final USO, in accordance with the child support guidelines,
that required Husband to pay $459 bi-weekly. The court denied Husband’s
motion to modify the parenting plan, in part, for lacking “a statutorily sufficient
basis to modify the parenting plan.” Husband unsuccessfully moved for
reconsideration of the court’s rulings on both the USO and the motion to
modify the parenting plan. This appeal followed.
 On appeal, Husband argues that the trial court erred by: (1) rejecting the
parties’ proposed July 2022 USO; (2) permitting Wife to argue for child support
in line with the child support guidelines when she was bound to the proposed
July 2022 USO; (3) determining that Husband’s income for child support
purposes included overtime; (4) denying Husband’s request to deviate from the
child support guidelines; and (5) denying Husband’s motion to modify the
parenting schedule.

We will not disturb the trial court’s rulings regarding child support and
parenting rights and responsibilities absent an unsustainable exercise of
discretion or an error of law. See In the Matter of White & White, 170 N.H.
619, 620 (2018) (regarding child support); In the Matter of Kurowski &
Kurowski, 161 N.H. 578, 585 (2011) (regarding parenting plans). When
determining whether the trial court engaged in a sustainable exercise of
discretion, we consider only whether the record establishes an objective basis
sufficient to sustain the discretionary judgment made. See Kurowski, 161 N.H.
at 585. We review questions of law de novo. See id.

We first address Husband’s arguments regarding the proposed July 2022
USO. RSA 458-C:4, IV provides:

When arrangements for child support are delineated in an agreement
between the parties, and not made according to guidelines provided
under this chapter, the presiding officer shall determine whether the
application of the guidelines would be inappropriate or unjust in such
particular case, using the criteria set forth in RSA 458-C:5, and in
certifying the agreement shall enter a written finding or a specific finding
on the record that the application of the guidelines would be
inappropriate or unjust and state the facts supporting such finding.

RSA 458-C:4, IV (2018). RSA 458-C:5, I(h)(1) provides: “Equal 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.” RSA 458-C:5, I(h)(1) (2018) (paragraph I(h) effective
until Jan. 1, 2025) (paragraph I(h) amended effective Jan. 1, 2025); see Laws
2024, ch. 140. Although the legislature has amended paragraph I(h), effective
January 1, 2025, we decide this case under the version of the statute in effect
at the time of the final hearing on child support. Any agreement between
parties to reduce court-ordered child support payments, absent a court order
approving the agreement, is not enforceable. See In the Matter of Nicholson &
Nicholson, 164 N.H. 105, 107 (2012).

In this case, the proposed July 2022 USO deviated downward from the
child support guidelines. The trial court rejected the proposed USO, finding
that it lacked a sufficient statutory basis to warrant deviating from the
guidelines as it only referenced “parenting schedule” as a ground for

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adjustment. We conclude that in so ruling, the court did not unsustainably
exercise its discretion and made no legal error. Under the relevant statutes,
the court could not have lawfully approved the proposed USO as written. See
RSA 458-C:4, IV; RSA 458-C:5, I(h)(1). The fact that the parties agreed on a
downward deviation from the guidelines was not, standing alone, sufficient for
the court to approve the proposal. In the Matter of Laura & Scott, 161 N.H.
333, 337 (2010) (“It is the duty of the court to enter such support orders as it
believes to be in the best interests of the children, and it is a responsibility that
cannot be delegated or abrogated by agreement of the parties.” (quotation and
brackets omitted)).

The court invited the parties to submit a revised USO with sufficient
statutory justification for deviating from the child support guidelines. As noted
above, the parties did not submit a revised USO. Once the court rejected the
proposed July 2022 USO, the agreement became unenforceable and was not
binding on Wife. See Nicholson, 164 N.H. at 107. In these circumstances, we
conclude that the court did not err in permitting Wife to subsequently argue for
a USO in accordance with the guidelines.

Husband’s remaining arguments on appeal challenge the trial court’s
exercise of its discretion when it: (1) included Husband’s overtime income in
calculating his child support obligation; (2) declined to deviate from the child
support guidelines in the final USO; and (3) denied Husband’s motion to modify
the parenting plan. Upon reviewing the parties’ written arguments, and the
record, we conclude that the trial court did not unsustainably exercise its
discretion in reaching these decisions.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred; HANTZ MARCONI, J., did not participate in the final vote.

Timothy A. Gudas,
Clerk

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