Another Child Support Opinion From The New Hampshire Supreme Court
Yesterday the New Hampshire Supreme Court issued another opinion about child support. This time, the Court found that a retroactive modification of child support was appropriate when the law at the time the original child support orders were issued provided for a mandatory modification of child support in multiple child orders as one of the children reached the age of maturity.
The case, named In the Matter of Kimberly J. Nicholson and John P. Nicholson, was about a couple who had three children, all of whom were minors at the time of their divorce in 2000. As time went by, and each child turned 18 or graduated from high school, the father unilaterally reduced the amount of child support he paid to the mother by 1/3. Neither parent filed any child support modification with the court.
Normally, a change of child support, either agree to by the parents or done by just one parent, without an approved order by the court is not enforceable by the court. Let me give you an example: Two parents, I'll call them Ann and Bob, agree that the child support Ann pays to Bob should be $100 per week instead of the $200 Ann was ordered to pay under their last court orders because Ann lost her job. Neither parent files anything with the court. Ann pays Bob the $100 per week for a year, then Bob files a motion for contempt in court, stating that Ann has not paid child support according to their last order. A court in New Hampshire could only enforce the existing order, the one that says Ann has to pay $200 per week. Ann would owe Bob $5200, the $100 difference per week for a year, in child support arrears.
In this case, the New Hampshire Supreme Court carved out a very specific situation under which a trial court could retroactively modify a child support order. In the Nicholson case, when the parents were issued their original child support order, the statute and the standing orders taken together (in other words, the law at that time), stated that "child support shall be recalculated in accordance with the guidelines whenever there is a change in the number of children for whom support is ordered, effective the date of the change" (emphasis added). So, since the language of the law in 2000 said both "shall be" and "effective the date of the change," then a court could retroactively issue an order modifying the appropriate amount of child support due back to the date when the child turned 18 (or graduated from high school).
It is important to keep in mind that there is different language currently in child support orders. The standing order, SO-4B, part of the Uniform Support Order, now states "In multiple child orders, the amount of child support may be recalculated according to the guidelines whenever there is a change in the number of children for whom support is ordered, upon petition of either party." So, the Nicholson case, and the ability for a court to retroactively modify child support as held in that case, does not apply child support orders issued with the new language in SO-4B. Now, if you have more than one child, and you would like your child support obligation to change, you must file a petition with the court.
This opinion, then, only narrowly applies to situations in which there are child support orders for multiple children that were issued under previous law.
The case, named In the Matter of Kimberly J. Nicholson and John P. Nicholson, was about a couple who had three children, all of whom were minors at the time of their divorce in 2000. As time went by, and each child turned 18 or graduated from high school, the father unilaterally reduced the amount of child support he paid to the mother by 1/3. Neither parent filed any child support modification with the court.
Normally, a change of child support, either agree to by the parents or done by just one parent, without an approved order by the court is not enforceable by the court. Let me give you an example: Two parents, I'll call them Ann and Bob, agree that the child support Ann pays to Bob should be $100 per week instead of the $200 Ann was ordered to pay under their last court orders because Ann lost her job. Neither parent files anything with the court. Ann pays Bob the $100 per week for a year, then Bob files a motion for contempt in court, stating that Ann has not paid child support according to their last order. A court in New Hampshire could only enforce the existing order, the one that says Ann has to pay $200 per week. Ann would owe Bob $5200, the $100 difference per week for a year, in child support arrears.
In this case, the New Hampshire Supreme Court carved out a very specific situation under which a trial court could retroactively modify a child support order. In the Nicholson case, when the parents were issued their original child support order, the statute and the standing orders taken together (in other words, the law at that time), stated that "child support shall be recalculated in accordance with the guidelines whenever there is a change in the number of children for whom support is ordered, effective the date of the change" (emphasis added). So, since the language of the law in 2000 said both "shall be" and "effective the date of the change," then a court could retroactively issue an order modifying the appropriate amount of child support due back to the date when the child turned 18 (or graduated from high school).
It is important to keep in mind that there is different language currently in child support orders. The standing order, SO-4B, part of the Uniform Support Order, now states "In multiple child orders, the amount of child support may be recalculated according to the guidelines whenever there is a change in the number of children for whom support is ordered, upon petition of either party." So, the Nicholson case, and the ability for a court to retroactively modify child support as held in that case, does not apply child support orders issued with the new language in SO-4B. Now, if you have more than one child, and you would like your child support obligation to change, you must file a petition with the court.
This opinion, then, only narrowly applies to situations in which there are child support orders for multiple children that were issued under previous law.
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