2005-110, IN THE MATTER OF BRIAN STALL AND LYNNE STALL

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 2005-110
IN THE MATTER OF BRIAN STALL AND LYNNE STALL
Submitted: November 16, 2005
Opinion Issued: December 30, 2005
Brian Stall, by memorandum of law, pro se.
Gage & Woods, P.L.L.C., of Exeter (Stephen J.C. Woods on the brief), for
the respondent.
BRODERICK, C.J. The respondent, Lynne Stall, appeals the order of the
Superior Court (Conboy, J.) requiring her to pay child support, retroactive to
May 1, 2004, to the petitioner, Brian Stall; finding her in contempt; and
requiring her to reimburse the petitioner for certain expenses. We affirm in
part, vacate in part and remand.
I
The record supports the following facts. The parties were divorced in
Florida in 1999. The Florida divorce decree gave the respondent primary
physical custody of the parties’ three children and gave the petitioner visitation
rights. After the divorce, the petitioner relocated to New Hampshire.
In December 2003, the petitioner petitioned the superior court to register
the Florida decree in New Hampshire and to modify the Florida custody order
to award him primary physical custody of the children. See RSA 546-B:39
(Supp. 2005); see also RSA 458-A:3, :14 (2004). On April 2, 2004, the parties

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stipulated that: (1) the Florida decree would be registered in New Hampshire;
(2) the petitioner would be granted physical custody of the parties’ children; (3)
the petitioner’s child support obligation would terminate as of January 8, 2004;
(4) the respondent would forward the children’s personal effects by common
carrier within ten days of the order; and (5) the petitioner would pay for the
transport of the children’s personal effects for an agreed-upon price. The
superior court approved this stipulation.
A few weeks later, on April 26, 2004, the petitioner filed a petition in
Florida, requesting that the Florida court eliminate his child support
obligations and require the respondent to pay child support. On September
21, 2004, the Florida court vacated the provisions in the original divorce decree
that required the petitioner to pay child support, but declined to enter any
further orders on child support because the parties had registered the divorce
decree in New Hampshire. The court determined that it no longer had
jurisdiction and that New Hampshire now had jurisdiction with respect to child
support.
On October 1, 2004, the petitioner asked the superior court to find the
respondent in contempt for failing to transport the children’s personal effects,
as agreed. On October 19, 2004, he petitioned the superior court to modify the
parties’ child support obligations, requesting that the respondent be required
to pay child support. See RSA 546-B:41, :47-:49, :51 (Supp. 2005). The
respondent alleges that she was served with the petition on November 1, 2004.
Following a hearing, the court ordered the respondent to pay child
support to the petitioner retroactive to May 1, 2004, “because the file indicates
that [the petitioner] first sought child support in late April[ ] 2004 in the Florida
proceeding.” To calculate child support, the trial court used the respondent’s
prior earnings of $30,000 per year, finding that she was voluntarily
unemployed as a result of moving to Maine in May 2004 to live with her
partner. Additionally, the court found the respondent in contempt for failing to
transport the children’s belongings as previously ordered and directed the
respondent to pay the petitioner $1,300 for purchases he made on behalf of the
children caused by the transport delay. This appeal followed.
II
The respondent first argues that the trial court erred by requiring her to
pay child support retroactive to May 1, 2004, a few days after the Florida
petition to modify was filed, instead of requiring her to pay child support
retroactive to November 1, 2004, the date on which she alleges the New
Hampshire petition to modify was served. See RSA 458-C:7, II (2004); see also
RSA 546-B:48. She asserts that pursuant to RSA 458-C:7, II, the trial court
should have used the date of service of the New Hampshire petition and not the
date upon which she arguably received notice of the Florida petition to modify.

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Thus, the issue for our review is whether the trial court erred by making its
modification order retroactive to May 1, 2004.
When construing the meaning of a statute, we are the final arbiters of
legislative intent. In the Matter of Jerome & Jerome, 150 N.H. 626, 628 (2004).
We examine the language of the statute, ascribing to its words their plain and
ordinary meanings. Id. We interpret statutes in the context of the overall
legislative scheme and not in isolation. Id.
RSA 458-C:7, II governs the date upon which the modification of a child
support order becomes effective. This statute provides:
Any child support modification shall not be effective prior to
the date that notice of the petition for modification has been given
to the respondent. “Notice” means:
(a) Service as specified in civil actions; or
(b) Acceptance of a copy of the petition, as long as the
petition is filed no later than 30 days following said acceptance,
and as long as the petitioner provides proof of acceptance by a
certified mail receipt. Nothing in this subparagraph shall be
construed to affect service as required by law.
The plain meaning of this provision is that a New Hampshire trial court may
modify a child support order retroactive only to the date upon which the
responding party has either been served with or accepted, by certified mail, a
copy of the petition upon which the New Hampshire court has ruled.
By making its order retroactive to the date upon which the court found
that the respondent “was put on formal notice” that the petitioner sought child
support, the trial court, in effect, interpreted the word “notice” to mean “knew
or reasonably should have known.” This was error. RSA 458-C:7, II defines
the word “notice” specifically to mean either the date upon which the
responding party received service or accepted, by certified mail, a copy of the
petition upon which the New Hampshire court ruled. Had the legislature
intended the word notice to have a broader meaning, it could have so stated.
We interpret legislative intent from the statute as written, and, therefore, we
will not consider what the legislature might have said or add words that the
legislature did not include. JTR Colebrook v. Town of Colebrook, 149 N.H. 767,
770 (2003).
We therefore vacate the trial court’s order modifying the respondent’s
child support obligations retroactive to May 1, 2004, and remand for further
proceedings consistent with this opinion. On remand, the trial court shall
make its modification order retroactive to the date upon which the respondent

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was served with or accepted, by certified mail, a copy of the New Hampshire
petition, as set forth in RSA 458-C:7, II.
III
The respondent next contends that the trial court impermissibly imputed
income to her after finding that she was voluntarily unemployed. She concedes
that she is voluntarily unemployed, but asserts that the trial court should not
have imputed income to her because the reason she is unemployed is that she
moved to Maine to be closer to her children and because, when she became
unemployed, she had no child support obligation.
RSA 458-C:2, IV(a) (2004) provides that “[t]he court, in its discretion,
may consider as gross income the difference between the amount a parent is
earning and the amount a parent has earned in cases where the parent
voluntarily becomes unemployed or underemployed, unless the parent is
physically or mentally incapacitated.”
Whether a party is voluntarily unemployed is a question for the fact
finder, whose decision will not be disturbed on appeal if supported by evidence
in the record. See In the Matter of Donovan & Donovan, 152 N.H. 55, 58-59
(2005). Trial courts have broad discretion to review and modify child support
awards. Id. at 59. They are in the best position to determine the parties’
respective needs and their respective abilities to meet them. Id. Accordingly,
we will set aside a modification order only if it clearly appears on the evidence
that the court’s exercise of discretion was unsustainable. Id.
The record supports the trial court’s finding that the respondent was
voluntarily unemployed. At the hearing, the respondent testified that she last
worked in May 2004, as an assistant to a real estate broker earning $30,000
per year, just before moving to Maine to live with her partner. She also
testified that, although she experienced “a bout of depression” for
approximately five months in 2004, she did not have a disability and has not
received a diagnosis from any doctor that her depression rendered her unable
to work. The respondent further testified that she was looking for employment,
but had not yet been offered a position. Given this testimony, we hold that the
trial court reasonably found that the respondent was voluntarily unemployed.
Although the respondent argues that the trial court failed to give proper
consideration to her motive for moving (in part, to be closer to her children), or
the fact that when she became unemployed, she had no child support
obligation, “[o]ur task on appeal is not to decide whether we would have found
differently but to determine whether a reasonable person could find as did the
trial judge.” Smith v. N.H. Dep’t of Revenue Admin., 148 N.H. 536, 539 (2002)
(quotation omitted). Given the record before us, we cannot say that the trial
court’s finding that the respondent was voluntarily unemployed was an

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unsustainable exercise of discretion. We further conclude that, in light of its
finding that the respondent was voluntarily unemployed, the trial court did not
err by imputing $30,000 in annual income to her. See RSA 458-C:2, IV(a).
IV
Finally, the respondent argues that the trial court impermissibly found
that she was in contempt of the court’s April 2004 order requiring her to
transport the children’s belongings within ten days of the order and
erroneously ordered her to pay the petitioner $1,300.
The contempt power is discretionary and the proper inquiry is not
whether we would have found the respondent in contempt, but whether the
trial court unsustainably exercised its discretion. In the Matter of Giacomini &
Giacomini, 150 N.H. 498, 500 (2004).
In April 2004, the parties stipulated that the respondent would “forward
by common carrier all of the children’s personal effects to include clothing,
electronic equipment, [one child]’s rock collection and personal items within 10
days of this Order.” In return, the petitioner agreed to “pay the cost with prior
agreement as to cost.”
The trial court found that the respondent failed to ship the children’s
belongings within ten days of the April 2004 order and, thus, was in contempt
of that order. This finding is supported by the evidence. At the hearing, the
petitioner testified that the respondent arranged to have the children’s
belongings shipped by a private moving company, rather than a “common
carrier,” as agreed. He also testified that the belongings were not shipped for
several weeks after the trial court’s order. He estimated that he paid
approximately $1,300 to clothe the children during the summer, while they
were waiting for the petitioner to send their belongings.
For her part, the respondent testified that she had movers box all of the
children’s belongings and informed the petitioner that the cost of boxing and
moving the belongings was approximately $1,300. Among the belongings the
respondent had boxed were clothes, computers, stereos, and televisions. After
having informed the petitioner of this on “several occasions,” the respondent
“decided to move to Maine” and told the petitioner that she needed him to
arrange to have the children’s belongings picked up. The respondent’s parents
eventually picked up the boxes, determined that the children did not need most
of what the respondent had packed, and then shipped the remaining
belongings to New Hampshire for $300.
Based upon this evidence, the trial court reasonably could have
determined that the respondent violated the April 2004 order by failing to ship
the children’s effects by common carrier at an agreed price within ten days of

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its order. Accordingly, we hold that the trial court sustainably exercised its
discretion when it found that the respondent was in contempt of the April 2004
order.
The respondent argues that the trial court’s contempt sanction was
criminal in nature and that the trial court failed to afford her the applicable
procedural protections required of criminal contempt proceedings.
“The difference between civil and criminal contempt is the character of
the punishment.” In the Matter of Kosek & Kosek, 151 N.H. 722, 727 (2005).
In civil contempt, the punishment is remedial, coercive and for the benefit of
the complaining party. Id. Civil contempt proceedings may result in money
fines payable to the complainant or in an indeterminate jail sentence until the
contemnor complies with the court’s order. Id. By contrast, the purpose of
prosecution for criminal contempt is to protect the court’s authority and
vindicate its dignity. Id. Unlike the civil contemnor, the criminal contemnor
may be imprisoned for a determinate amount of time. Id.
We disagree with the respondent that the court’s sanction in this case
was, in fact, a criminal penalty. See id. at 728. The court, in effect, treated the
petitioner’s motion as one for damages. By granting this motion and awarding
the petitioner $1,300 to reimburse him for the money he spent to clothe the
children in the summer, the trial court imposed a punishment that was
remedial and for the petitioner’s benefit. “There is no indication in the record
that the trial court sought to protect its authority and vindicate its dignity by
issuing this particular contempt sanction.” Id. Accordingly, we hold that the
sanction was civil, not criminal.
The respondent also argues that she was unable to comply with the
court’s order and that the court failed to take this into account. See Bursey v.
Bursey, 145 N.H. 283, 287 (2000). The evidence does not compel such a
finding.
The respondent finally contends that the record does not support the
trial court’s finding that the amount the petitioner paid to clothe the children
while they were waiting for their own clothes was $1,300. As the petitioner’s
testimony supports this finding, we uphold the trial court’s award.
Affirmed in part; vacated
in part; and remanded.
NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.