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http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit-Nashua Family Division

Nos. 2018-0086

2018-0153

2018-0398

IN THE MATTER OF CRYSTAL NDYAIJA AND JOSHUA NDYAIJA

Submitted: December 16, 2019

Opinion Issued: March 11, 2020

Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard on the brief), 

for the petitioner.

Joshua Ndyaija, self-represented party, by brief.

DONOVAN, J. In this consolidated appeal, the respondent, Joshua 

Ndyaija, appeals various orders issued by the Circuit Court (Quigley and 

Introcaso, JJ.) following the parties’ divorce. The respondent argues that the 

trial court erred by: (1) dismissing his motion for contempt against the 

petitioner, Crystal Ndyaija; (2) denying his motion regarding parental 

interference; (3) denying his motion to restrain; (4) modifying his child support 

obligations for the parties’ minor child; (5) denying his motion to modify the

parties’ parenting plan and permanent stipulation, vacating a provision of the 

parenting plan, and ordering him to pay the petitioner’s attorney’s fees; and (6) 

granting the petitioner’s motion to approve daycare enrollment for the child. 

The respondent also argues that the trial court lacked jurisdiction to make an 

initial child custody determination under RSA chapter 458-A (2018), and 

lacked jurisdiction over the divorce action under RSA 458:5 and :6 (2018). We 

affirm in part, vacate in part, and remand.
2

I. Factual and Procedural Background

The record supports the following facts. The parties married in July 

2012 and lived together in Massachusetts until July 2014, when the petitioner 

moved to New Hampshire with their child. In May 2015, the petitioner filed a 

petition for legal separation in the New Hampshire Circuit Court. In her 

petition, she notified the trial court of an August 2014 court order on a 

domestic violence-related matter from a Massachusetts district court, but did 

not provide additional details. In August 2015, the petitioner filed a petition for 

divorce in the New Hampshire Circuit Court. In that petition, she notified the 

trial court of her involvement in two court cases relating to custody of the child: 

(1) a July 2014 matter in a Massachusetts district court that resulted in the

issuance of a restraining order which awarded custody of the child to the 

petitioner but which expired in July 2015; and (2) an action for custody and 

visitation in a Massachusetts court filed by the respondent, which, the 

petitioner indicated, was still pending at the time of her divorce petition. The 

trial court issued a temporary child custody order, which provided that the 

child live primarily with her mother and allowed the respondent to have 

supervised visits with the child for two days a week.

In May 2016, a Marital Master (DalPra, M.) recommended, and the Trial

Court (Quigley, J.) approved, a final divorce decree, parenting plan, partial 

permanent stipulation, and uniform support order. The parenting plan 

required the child to reside primarily with the petitioner and provided the 

respondent with parenting time during weekends, vacations, and certain 

holidays. It further required, under paragraph G of the parenting plan, that

the parties meet “as often as necessary for the benefit of the child” to review 

and adjust the parenting plan, and noted that the parties “agree to meet in 

March, 2017 to revise this plan before [the child] goes to school.” Paragraph H 

of the parenting plan set forth dispute resolution procedures in the event a 

disagreement between the parties arose, stating:

Parties shall attempt to resolve any disagreement first through 

email exchanges. If there has been no resolution within fourteen 

(14) days, the parties shall seek the assistance of an individual(s), 

[and] each party shall have the option of bringing one person to a 

meeting to try to resolve the issue. That meeting shall occur within 

fourteen (14) days of notice by one party that an email resolution 

has not been reached. In the event the meeting does not resolve 

the issue the parties may seek the assistance of the Court.

The uniform support order required the respondent to pay $50 per 

month in child support and provided that the order shall be reviewed upon 

either party obtaining new employment. The permanent stipulation required

both parties to obtain life insurance for the benefit of the child if available 

through their employers.
3

In August 2016, the respondent filed a contempt motion alleging, inter

alia, that the petitioner failed to adhere to the dispute resolution procedures set 

forth in paragraph H of the parenting plan. His motion set forth several 

unresolved disputes and alleged that the petitioner failed to respond to emails 

or meet in person within 14 days as required by paragraph H. The petitioner 

objected to the motion. The Trial Court (Introcaso, J.) approved an order 

recommended by a Marital Master (DalPra, M.) dismissing the motion. The 

respondent appealed to this court and we vacated and remanded the decision

because the trial court’s order addressed the petitioner’s compliance with 

paragraph G, but not paragraph H.

Shortly thereafter, in September 2017, the respondent filed two motions 

with the trial court — a motion “to restrain” and a motion regarding “parental 

interference” — in which he requested the court to order the petitioner to stop 

and retract “slanderous allegations” against him and “restrain[] her from doing 

any further harm to [his] livelihood.” Following a hearing, the Marital Master 

(Dalpra, M.) recommended, and the Trial Court (Quigley, J.) approved, an order 

dismissing the contempt motion and denying his motion to restrain and his 

motion regarding parental interference.

Thereafter, the respondent and the petitioner filed separate motions to 

modify the respondent’s child support obligation after the respondent obtained 

new employment. The respondent sought termination or a reduction of the 

child support obligation, while the petitioner sought a modification that took 

into account the respondent’s new source of income. Following a hearing, the 

Trial Court (Introcaso, J.) issued a new uniform support order that increased 

the respondent’s child support obligation to $274 per week. The respondent 

requested the court to deviate from the child support guidelines, but the trial 

court found “no justification for an adjustment.” See RSA 458-C:5 (Supp. 

2019). The order also required the respondent to pay an arrearage that had 

accrued since September 18, 2017, the date he filed his motion to modify his 

child support obligation, which the trial court determined to be $5,149.38. The 

order required the respondent to pay the weekly child support and arrearage by 

immediate income assignment to the Division of Child Support Services 

(DCSS). The respondent filed a motion for reconsideration, which the court 

denied.

Subsequently, the respondent moved to modify the parenting plan and 

permanent stipulation. He requested that the court modify the parenting plan 

to, in part, award him additional parenting time with the child, “hold [the] 

Petitioner accountable for dishonoring” the requirement in paragraph G to meet 

to review and adjust the parenting plan, and remove the life insurance 

requirement in the permanent stipulation because it violated his religious 

beliefs. The petitioner objected, and thereafter filed a motion to allow her to 

enroll the child in private daycare and kindergarten in New Hampshire, to be 
4

paid for solely by her. Following a hearing on these matters, the Trial Court 

(Introcaso, J.) denied the respondent’s requests, sua sponte vacated paragraph 

G of the parenting plan, and, finding the respondent’s motion to be frivolous,

awarded attorney’s fees to the petitioner. The trial court also granted the 

petitioner’s request allowing her to enroll the child in private daycare and 

kindergarten. The respondent filed a motion for reconsideration, which the 

court denied.

The respondent filed three separate appeals of these orders, which we 

consolidated, setting forth numerous challenges to the merits of the trial 

court’s decisions. The respondent also makes several arguments challenging, 

for the first time on appeal, the trial court’s jurisdiction to rule on these issues, 

including the court’s jurisdiction over the child custody proceeding under the 

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See RSA 

ch. 458-A.

Pursuant to the UCCJEA, a court in New Hampshire “may not exercise 

its jurisdiction” over a child custody case “if, at the time of the commencement 

of the proceeding,” a child custody proceeding “has been commenced in a court 

of another state having jurisdiction substantially in conformity with this 

chapter, unless the proceeding has been terminated or is stayed by the court of 

the other state because a court of this state is a more convenient forum.” RSA 

458-A:17, I. Because the petitioner’s divorce petition alerted the trial court to a 

pending child custody proceeding commenced in a Massachusetts court, and 

nothing in the appellate record showed that Massachusetts had terminated the 

proceeding or ruled that New Hampshire was a more appropriate forum, we 

remanded the issue of jurisdiction under the UCCJEA to the trial court to 

make findings and rulings as to whether it had jurisdiction when the petitioner 

commenced the child custody proceeding in New Hampshire. See RSA 458-

A:17, II. We noted that, even though the respondent raises this issue for the 

first time on appeal, the UCCJEA governs the court’s subject matter 

jurisdiction to make or modify a child custody determination, and, therefore,

jurisdiction under the UCCJEA may be challenged at any time during the 

proceeding. See In re Guardianship of K.B., 172 N.H. ___, ___ (decided October

25, 2019) (slip op. at 2). We retained jurisdiction of the remaining issues on 

appeal.

On remand, the trial court issued an order finding that the 

Massachusetts court dismissed the child custody proceeding on October 21, 

2015, and, therefore, New Hampshire “had subject matter jurisdiction.” The 

respondent filed a motion to reconsider. His motion did not dispute the trial 

court’s factual finding on the dismissal of the Massachusetts action. Instead, 

he disputed the trial court’s conclusion that New Hampshire had jurisdiction, 

citing the active status of the Massachusetts restraining order at the time the 

petitioner filed her original petition for legal separation in New Hampshire. The 
5

trial court denied his motion. We now address all issues on appeal, beginning 

with jurisdiction.

II. Analysis

A. Jurisdiction

To resolve the respondent’s jurisdictional challenges, we must interpret 

the relevant statutes. See In the Matter of Gray & Gray, 160 N.H. 62, 65 

(2010). When examining the language of a statute, we ascribe the plain and 

ordinary meaning to the words used. In the Matter of Yaman & Yaman, 167 

N.H. 82, 86 (2014). When a statute’s language is plain and unambiguous, we 

need not look beyond it for further indications of legislative intent. Gray, 160 

N.H. at 65. Courts can neither ignore the plain language of the legislation nor 

add words that the lawmakers did not see fit to include. Id. We interpret 

statutes not in isolation, but in the context of the overall statutory scheme. Id.

We first address the respondent’s arguments regarding the court’s 

jurisdiction over the child custody proceeding under the UCCJEA. Under RSA 

458-A:12, I, “a court of this state has jurisdiction to make an initial child 

custody determination” if “[t]his state is the home state of the child on the date 

of the commencement of the proceeding.” A child’s “home state” is “the state in 

which a child lived with a parent . . . for at least 6 consecutive months 

immediately before the commencement of a child-custody proceeding.” RSA 

458-A:1, VII. The child custody proceeding here commenced in May 2015 

when the petitioner filed her petition for legal separation. See RSA 458-A:1, IV 

(defining “child-custody proceeding” as “a proceeding in which legal custody, 

physical custody, or visitation with respect to a child is an issue,” including a 

proceeding for divorce or separation), RSA 458-A:1, V (defining 

“commencement” as the “filing of the first pleading in a proceeding”). At that 

time, the petitioner and the child had been living in New Hampshire for over six 

months. Therefore, New Hampshire was the child’s home state on the date the 

petitioner commenced the proceeding. See RSA 458-A:1, VII.

Nevertheless, the respondent contends that the trial court lacked 

jurisdiction because other child custody proceedings had commenced in 

Massachusetts at the time the petitioner filed the petition for legal separation 

in New Hampshire. See RSA 458-A:17, I. Specifically, he contends that, at the 

time the petitioner filed her petition for legal separation: (1) the Massachusetts 

restraining order against the respondent was still active, see RSA 458-A:1, IV 

(defining “child-custody proceeding” to include a proceeding for “protection 

from domestic violence”); and (2) the respondent’s Massachusetts action for 

custody and visitation was pending.

The petitioner’s initial petition for legal separation notified the trial court 

of a Massachusetts case relating to domestic violence but provided no further
6

information describing the nature of the case. The petitioner’s subsequent 

divorce petition provided additional details about the Massachusetts case —

specifically, that the case involved a restraining order issued in July 2014,

which awarded custody of the child to the petitioner. The divorce petition also 

notes, however, that the restraining order expired one year after it was issued, 

which the respondent does not dispute. Thus, the Massachusetts child 

custody determination under the restraining order had terminated prior to any 

child custody determination made by the trial court here, and, therefore, did 

not deprive the trial court of jurisdiction to make such a determination under 

the UCCJEA. See RSA 458-A:17, I (permitting a court of this state to exercise 

jurisdiction where the proceeding in another state “has been terminated or is 

stayed by the court of the other state”).

The petitioner’s divorce petition also notified the trial court of the 

pending Massachusetts action for custody and visitation filed by the 

respondent in March 2015. She explained that a motion to dismiss the case 

had “been drafted and will be marked up for Hearing in September.” Although 

the Massachusetts court dismissed the action on October 21, 2015, the 

dismissal occurred after the trial court here made its initial child custody 

determination in August.

To avoid jurisdictional conflicts in child custody proceedings, RSA 458-

A:17, II requires courts of this state to “examine the court documents and other 

information supplied by the parties.” Then, “[i]f the court determines that a 

child-custody proceeding has been commenced in a court in another state 

having jurisdiction substantially in accordance with this chapter,” the trial

court “shall stay its proceedings and communicate with the court of the other 

state.” Id. If the court of the other state “does not determine that the court of 

this state is a more appropriate forum,” RSA 458-A:17, II requires a New 

Hampshire court to dismiss the proceeding.

Because the petitioner’s divorce pleading alerted the trial court to a 

simultaneous child custody proceeding in Massachusetts, which constitutes a 

“state having jurisdiction substantially in accordance” with New Hampshire’s 

UCCJEA, RSA 458-A:17, II; compare RSA 458-A:12 with Mass. Gen. Laws ch. 

209B, § 2 (2016), the trial court was required to stay the New Hampshire 

proceeding and communicate with the Massachusetts court. See RSA 458-

A:17, II. Nevertheless, the Massachusetts proceeding was dismissed in October 

2015, during the pendency of the divorce proceeding in New Hampshire and

prior to the court’s approval of the final divorce decree in May 2016. Thus, at 

the time the trial court rendered its child custody determination as part of the 

final divorce decree, no simultaneous child custody proceeding was pending in 

another state. Moreover, the petitioner and her child have continued to reside 

in New Hampshire since they moved here in July 2014. See RSA 458-A:12, I. 

Accordingly, while we urge New Hampshire courts to follow the directives set 

forth in RSA 458-A:17 when alerted to a child custody proceeding in another 
7

state, we conclude that the trial court had jurisdiction to render its child 

custody determination following the dismissal of the Massachusetts action.

The respondent, however, further argues that New Hampshire does not 

have jurisdiction over the child custody proceeding because the petitioner 

sought to conceal their child from him by moving to New Hampshire after 

obtaining the restraining order in Massachusetts. To the extent the respondent 

argues that RSA 458-A:19, I, required the trial court to decline jurisdiction due 

to the petitioner’s “unjustifiable conduct,” we disagree. RSA 458-A:19, I,

requires a court to “decline to exercise its jurisdiction” in a child custody 

proceeding where “a person seeking to invoke its jurisdiction has engaged in 

unjustifiable conduct.” However, the statute permits the court to exercise 

jurisdiction where “[t]he parents and all persons acting as parents have 

acquiesced in the exercise of jurisdiction.” RSA 458-A:19, I(a).

We acknowledge that the petitioner’s filing of the petition for separation 

in New Hampshire shortly after the respondent filed his Massachusetts 

complaint for child custody and visitation undermines one of the purposes of 

the UCCJEA: to “‘[d]iscourage the use of the interstate system for continuing 

controversies over child custody.’” Yaman, 167 N.H. at 87 (quoting Unif. Child 

Custody Jurisdiction and Enforcement Act § 101, cmt., 9-1A U.L.A. 657

(1999)). However, even assuming that the petitioner’s actions were 

“unjustifiable,” both parents acquiesced to the trial court’s exercise of 

jurisdiction. See RSA 458-A:19, I. The parenting plan was approved by the 

court in May 2016 and, based upon the record before us, the respondent 

participated in the litigation before the parenting plan was issued without ever 

challenging the court’s jurisdiction. Furthermore, nothing in the record reflects

that the respondent challenged the court’s jurisdiction prior to this appeal. 

Accordingly, the trial court was not required to decline jurisdiction under RSA 

458-A:19, I.

The respondent next argues that the trial court lacked jurisdiction over 

the parties to the divorce matter, under RSA 458:5, and the cause of the 

divorce, under RSA 458:6. Pursuant to RSA 458:5, a court’s jurisdiction over 

parties to a divorce case exists only where: (1) “both parties were domiciled in 

the state when the action was commenced”; (2) the plaintiff was domiciled in 

the state and “the defendant was personally served with process within the 

state”; or (3) “the plaintiff was domiciled in the state for one year next preceding 

the time when the action was commenced.” Pursuant to RSA 458:6, 

“[j]urisdiction over the cause for divorce exists when it wholly arose or accrued 

while the plaintiff was domiciled in the state, and not otherwise.”

As the petitioner notes, the respondent raises these arguments for the 

first time on appeal. The petitioner argues that, because the respondent 

appeared in the trial court proceedings without raising any objection to the 

trial court’s jurisdiction, he agreed to the court’s exercise of jurisdiction in this 
8

case and should not be permitted to raise these arguments for the first time on 

appeal. However, “[t]he court’s authority in matters of marriage and divorce is

strictly statutory.” Daine v. Daine, 157 N.H. 426, 427 (2008) (quotation 

omitted). Therefore, “the court has only such power in that field as is granted 

by statute.” Id. Here, RSA 458:4 (2018) expressly limits “[t]he jurisdiction of 

the court to grant divorce . . . to cases where there is jurisdiction over the 

parties and of the alleged cause as defined in RSA 458:5 and 458:6.” 

Accordingly, the court’s jurisdiction to grant a divorce is limited to the 

circumstances described in RSA 458:5 and :6. Therefore, the respondent’s 

participation in the proceedings below without objection cannot confer 

jurisdiction if the statutory requirements are not met. See Porter v. Porter, 112 

N.H. 403, 405 (1972) (holding that the “domicile requirements” under RSA 

458:5 “cannot be conferred by consent”); see also Daine, 157 N.H. at 428

(“Consent cannot confer jurisdiction where none exists.” (quotation omitted)).

Nevertheless, we conclude that, based upon the record before us, the 

trial court had jurisdiction over the parties and the cause of the divorce. As to 

jurisdiction over the parties to the divorce, the record demonstrates that the 

petitioner has been domiciled in New Hampshire since July 2014, over one year 

before she commenced the divorce action in August 2015. Therefore, the 

domicile requirement under RSA 458:5 was met. See RSA 458:5, III.

As to the court’s jurisdiction over the cause of the divorce, the 

respondent identifies a series of incidents that occurred in Massachusetts in or 

around July 2014 as the “origin and point of separation” — an alleged inquiry 

by the petitioner to a Massachusetts police department regarding child 

custody, the Massachusetts restraining order, and a neglect investigation with 

the Massachusetts Department of Family and Children. However, he makes no 

representation about the cause for divorce or where it occurred. According to 

the trial court’s final divorce decree and the parties’ partial permanent 

stipulation, approved by the trial court in May 2016, the cause of the parties’ 

divorce was “[i]rreconcilable differences which have caused the irremediable 

breakdown of the marriage.”

We have held that “causes involving a specific event such as a conviction 

of a crime [or] adultery” which have occurred while the petitioner is domiciled 

elsewhere may not meet the jurisdictional requirement under RSA 458:6. 

Woodruff v. Woodruff, 114 N.H. 365, 367 (1974). However, “other causes that 

are of a continuing nature . . . which began while [the petitioner] was domiciled 

elsewhere” may meet the requirement “if continued for the required time after 

the [petitioner] becomes domiciled here.” Id. Irreconcilable differences may be 

one such cause, because “[i]f the differences are not reconciled they constitute 

a continuing condition in the marriage relationship which may persist after one 

of the parties becomes domiciled here.” Id.; see RSA 458:7-a (2018).
9

In this case, the petitioner left the respondent in July 2014 and lived in

New Hampshire for over one year before she commenced the divorce action. 

Accordingly, the differences between the parties were not reconciled for at least 

the period between July 2014 and August 2015. Thus, cause of the divorce 

continued after the petitioner became domiciled in New Hampshire. See

Woodruff, 114 N.H. at 367 (explaining that RSA 458:7-a “does not require that 

the irreconcilable differences accrue over any specified period of time before 

they may form the basis for a cause for divorce”); RSA 458:7-a. Although “[n]o 

divorce can be decreed under this cause . . . unless the irreconcilable 

differences have caused an irremediable breakdown of the marriage,” Woodruff, 

114 N.H. at 367 (citing RSA 458:7-a (Supp. 1973)), we have held that, as a 

matter of law, the breakdown of the marriage cannot occur prior to the court’s 

judicial determination that “the possibilities of reconciliation have been 

explored and have failed.” Id. at 368; see RSA 458:7-a, :7-b (2018). Therefore, 

the breakdown of the marriage could not have occurred until after the 

petitioner filed her divorce petition, because that was the earliest that the court 

could find the marriage to be beyond reconciliation. Woodruff, 114 N.H. at

368. Accordingly, we conclude that the trial court had jurisdiction over the 

cause for divorce under RSA 458:6.

B. Order on Contempt, Restraint, and Parental Interference Motions

1. Contempt

Next, the respondent argues that the trial court unsustainably exercised 

its discretion by denying his motion to hold the petitioner in contempt for 

failure to comply with paragraph H in the parenting plan, which requires the 

parties to communicate through email and, if necessary, in person, to resolve 

parenting disputes within specific time limits. Contempt power is discretionary 

and the proper inquiry is not whether we would have found the petitioner in 

contempt, but whether the trial court unsustainably exercised its discretion in 

refusing to do so. In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500 

(2004).

The respondent’s contempt motion described several disagreements 

between the parties and alleged that the petitioner failed to “honor[] the 14-day 

period for email resolution [and] the 14-day period for a meeting” in paragraph 

H to resolve those disputes. Based upon the testimony of the parties at the 

contempt hearing and a review of the parties’ emails and pleadings, the trial 

court found that “it is clear that Petitioner attempted to answer Respondent’s 

inquiries” and was “not in contempt of any of the parenting time provisions.”

The trial court further found that the petitioner “did not act willfully or with 

malice by not agreeing to meet” with the respondent, and “was under the 

reasonable belief that there were no issues that needed resolution.” In 

rendering this decision, the trial court did not consider some of the disputes 
10

asserted by the respondent because they predated or fell outside of the scope of

the parenting plan.

A review of the record provides support for these findings. We conclude 

that the trial court was not compelled to find the petitioner in contempt and 

did not unsustainably exercise its discretion by refusing to do so. See id. at 

501.

2. Restraint and Parental Interference

The respondent next argues that the trial court unsustainably exercised

its discretion by denying his motion to restrain and his motion regarding 

parental interference. We review a trial court’s rulings on the denial of these 

motions under an unsustainable exercise of discretion standard. See In the 

Matter of Peirano & Larsen, 155 N.H. 738, 752 (2007) (reviewing the trial 

court’s continuance of a restraining order for an unsustainable exercise of 

discretion).

In his motion to restrain, the respondent alleged that the petitioner 

provided “malicious and untruthful information about [him]” to law 

enforcement, DCSS, and their child’s doctor, including a “very recent[]” false

accusation to DCSS that he failed to pay child support in May 2016. His

motion regarding parental interference alleges that the petitioner “continues to 

interfere with [his] rights as a father” by telling the child’s doctor that the 

respondent was trying to kidnap their child. In her objections to these 

motions, the petitioner denied the allegations and stated that the respondent 

was attempting to “revisit issues that have long-since been concluded” and 

“have no relevance on issues between the parties today.” At the hearing, the 

respondent discussed a timeline of the allegations, contending that the events 

set forth in his motions occurred between July 2014 and November 2016, 

when the petitioner made the complaint to DCSS.

The trial court denied both motions upon finding that “[a]ll the alleged 

incidents occurred two years prior to the parties’ agreed Parenting Plan.” The 

respondent points to the allegation relating to DCSS to argue that this finding 

was erroneous. However, the parties’ pleadings and the respondent’s proffers 

at the contempt hearing demonstrate that all allegations, including the 

allegation relating to DCSS, occurred at least 10 months before the respondent 

filed his motions. We conclude that these events are too distant in time to 

support motions of this nature. Accordingly, we uphold the trial court’s denial 

of these motions.

1

 

1 The respondent also argues on appeal that the motion to restrain is supported by RSA 458:16, 

I(a)-(b) (2018). However, because he did not raise this argument to the trial court, we decline to 

review it. See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018).
11

C. Amended Uniform Support Order

The respondent argues that the trial court erred in several ways in its 

calculation of the amended uniform support order issued in February 2018. 

The trial court’s amended uniform support order is governed by New 

Hampshire’s child support guidelines, which are codified in RSA chapter 458-C 

(2018 & Supp. 2019) and establish a uniform system to determine the amount 

of child support awards. In the Matter of Silva & Silva, 171 N.H. 1, 4 (2018); 

see RSA 458-C:4, I (2018) (applying the guidelines to “all child support cases,” 

including orders modifying an existing support order). The purpose of RSA 

chapter 458-C is not only to ensure uniformity in determining the amount of 

child support, but also to ensure that both the custodial and non-custodial 

parents share in the support responsibility for their children, according to the 

relative percentage of each parent’s income. Silva, 171 N.H. at 4.

Trial courts have broad discretion in reviewing and modifying child 

support orders. In the Matter of Hampers & Hampers, 166 N.H. 422, 442 

(2014). We will not disturb the trial court’s rulings regarding child support 

absent an unsustainable exercise of discretion or an error of law. Silva, 171 

N.H. at 4.

The respondent first argues that the trial court erred because it based 

the amended support order of $274 per week on income figures proposed by 

the petitioner in her child support guidelines worksheet. See RSA 458-C:3-a 

(2018). He argues that these figures were inaccurate because: (1) the 

petitioner’s calculation of the respondent’s gross monthly income was not 

supported by the paystubs he provided; (2) the petitioner’s monthly income 

provided in her child support guidelines worksheet failed to include her gross 

monthly income from her second, part-time employment; and (3) the petitioner

failed to provide in her financial affidavit documentation of her income required 

by Family Division Rule 1.25-A(B)(1)(c).

Child support should be determined on the basis of present income. 

Hampers, 166 N.H. at 442. When calculating a parent’s child support 

obligation, the court must first determine each parent’s present income. In the 

Matter of Feddersen & Cannon, 149 N.H. 194, 196 (2003). It is up to the trial 

court to decide which income figures should be used based upon the facts 

presented at the hearing. Id.

As for the respondent’s monthly gross income, he contends that the trial 

court accepted the petitioner’s calculation of his income, which was based 

upon a weekly income of $1,800, despite the inconsistent income shown on his

paystubs and his representation that he does not receive steady pay due to the 

contractual nature of his employment. The respondent provided four weekly 

paystubs with his financial affidavit, with one paystub showing earnings of 

$1,440 for 32 hours of work, and three subsequent paystubs showing weekly 
12

earnings of $1,800 for 40 hours per week. Nevertheless, the respondent listed 

$7,200 as his gross monthly income in his financial affidavit and child support 

guidelines worksheet, and informed the court at the hearing that he reached 

this figure by multiplying $1,800 by four weeks. Thus, the respondent himself 

represented that his income is $1,800 per week. Although the trial court 

determined that the petitioner provided the accurate calculation of his monthly 

gross income — she multiplied the weekly income of $1,800 by 4.33 weeks in a 

month, rather than four weeks — the respondent does not challenge this 

determination. Accordingly, the trial court did not commit an unsustainable 

exercise of discretion in accepting the petitioner’s calculation of the 

respondent’s monthly gross income based upon a weekly income of $1,800.

However, as for the petitioner’s monthly income, we agree with the 

respondent that the petitioner’s child support guidelines worksheet, upon 

which the trial court relied in calculating the respondent’s amended child 

support obligation, omitted income from one of her jobs. The petitioner 

disclosed monthly wages from two jobs in her financial affidavit and provided a 

paystub reflecting this additional employment. However, her child support 

guidelines worksheet included her monthly income from only one job. 

Accordingly, the trial court committed an unsustainable exercise of discretion 

when it based its calculation of the support order on the gross monthly income 

set forth in the petitioner’s guidelines worksheet. Therefore, we vacate the 

support order and remand to the trial court to recalculate the respondent’s 

child support obligation.

The respondent further argues that the petitioner failed to provide the 

requisite documentation under Rule 1.25-A(B)(1)(c) to support her asserted 

income set forth in her financial affidavit and child support guidelines 

worksheet. Rule 1.25-A(B)(1)(c) requires the parties, as part of the mandatory 

initial self-disclosure, to provide the “four (4) most recent pay stubs (or 

equivalent documentation) from each current employer.” Fam. Div. R. 1.25-

A(B)(1)(c). Rule 2.16, which governs financial affidavits, further requires each 

party to “file with the court and with the other party a . . . financial affidavit 

which contains the information requested on the family division financial 

affidavit.” Fam. Div. R. 2.16. The petitioner’s notarized financial affidavit 

certifies that she has “complied with Rule 1.25-A regarding mandatory 

disclosure.” The record before us, however, indicates that she provided only 

one pay stub for each job.

While Rule 1.2 permits the court, “[a]s good cause appears and as justice 

may require,” to “waive the application of any rule, except where prohibited by 

law,” Fam. Div. R. 1.2, the record does not demonstrate that the trial court 

found good cause to waive the paystub requirement under Rule 1.25-A(B)(1)(c). 

Accordingly, we remand this issue to the trial court to require the petitioner to 

either submit additional pay stubs or show good cause as to why this rule 

should be waived.
13

The respondent next contends that the trial court committed an 

unsustainable exercise of discretion when it failed to consider his request to 

deviate from the child support guidelines. He argues that the court failed to 

consider his financial obligations that he raised during the hearing — in 

particular, the amount of rent he pays — in determining his child support 

obligation.

There is a rebuttable presumption that a child support award calculated 

under the guidelines is the correct amount of child support. See Silva, 171 

N.H. at 4; RSA 458-C:4, II (2018). The presumption may be overcome, and the 

trial court may deviate from the guidelines, when a party shows by a 

preponderance of the evidence that the application of the guidelines would be 

“unjust or inappropriate,” RSA 458-C:4, II, because of “[s]pecial 

circumstances,” RSA 458-C:5, I; Silva, 171 N.H. at 4.

RSA 458-C:5, I, includes a list of special circumstances that, if raised by 

a party or the court, the court must consider in making an adjustment that 

deviates from the child support guidelines. Silva, 171 N.H. at 4. Although this 

list is non-exhaustive, we have interpreted “special circumstances” as including 

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.” Id. 

(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.

Here, the record demonstrates that the trial court considered, and 

rejected, the respondent’s basis for his requested adjustment in determining 

his child support obligation. The trial court explained at the hearing that

expenses such as rent, bills, and loan repayments are common expenses that

are not “extraordinary, unusual expenses” to the respondent, and did not 

provide a basis to “treat [the respondent] differently than . . . any other parent.”

In reaching this determination, the trial court did not unsustainably

exercise its discretion. Although living expenses are “economic in nature,” the 

respondent has not demonstrated that they “relate to the impact of [his] 

financial condition upon his . . . ability to meet [his] child’s needs.” Silva, 171 

N.H. at 4. The respondent did not argue or otherwise offer an explanation to 

the trial court that his expenses prohibit him from meeting the child’s needs, or 

that he could not make necessary changes to reduce his expenses. Further, 

there is nothing in the record to indicate that the respondent’s expenses affect 

his financial situation such that the amount suggested by the guidelines is 

confiscatory. See RSA 458-C:5, I(j). Finally, to the extent that the respondent 

argues that the trial court was required to compare his expenses with the 

petitioner’s when calculating his child support obligation, the respondent 

identifies no provision in RSA chapter 458-C that required the trial court to do 

so. See RSA 458-C:3 (2018), :5.
14

Next, the respondent argues that the trial court erred when it ordered 

him to pay an arrearage. The respondent asserts that, because he remained in 

compliance with the court’s uniform support order in effect at the time, it 

would be “unfair to hold [him] responsible” for paying an amount that had not 

yet been ordered by the court. RSA 458-C:7 (2018) allows a party to apply “at 

any time for a modification” of a child support order “based on substantial 

change of circumstances.” RSA 458-C:7, I(a). The statute also allows the trial 

court to modify a child support obligation from “the date that notice of the 

petition for modification has been given to the [opposing party].” RSA 458-C:7, 

II. Thus, the trial court had the discretion to apply its child support 

modification retroactively. Given that the respondent himself first notified the 

trial court and the petitioner of the change in circumstances that led to the 

trial court’s child support modification — his new employment — it was neither

unfair, nor an unsustainable exercise of discretion, for the trial court to order 

that modification to apply retroactively. 

The respondent further contends that the trial court erred in its 

calculation of the arrearage amount. Specifically, he argues that the trial court

failed to deduct the $50 monthly child support payments that, according to the 

respondent, he paid during the accrual period — September 18, 2017, to 

February 12, 2018.

The record demonstrates that the trial court deducted from the total 

arrearage the amount of attorney’s fees the petitioner owed to the respondent 

from prior litigation. The record is silent, however, as to whether the trial court 

considered any child support payments the respondent made during the 

accrual period. Although the respondent raised this issue to the trial court in a 

motion for reconsideration, the trial court did not modify or clarify its 

calculation. Further, we note that, although the petitioner does not address 

this argument on appeal, she acknowledged in her objection to his motion for 

reconsideration that the respondent “continued to pay $50.00 per month as 

child support” after he obtained full employment. Because the record does not 

demonstrate whether the trial court considered any child support payments 

that the respondent paid during the accrual period in calculating the arrearage 

amount, we vacate the judgment and remand this issue to the trial court.

Finally, the respondent argues that the trial court erred by ordering that 

he pay child support directly to DCSS by immediate income assignment. He 

contends that, because his previous payments were timely, the court should 

have found good cause not to require immediate income assignment. RSA 458-

B:2, I(c) (2018) provides that immediate income assignment “shall be 

suspended by the court” when the court “finds that there is good cause not to 

require immediate income assignment.” However, a finding of “good cause” to 

suspend immediate income assignment must be based on “[p]roof of the 

obligor’s timely payment” of previously ordered support and a “written 
15

determination and explanation . . . as to why implementing immediate income 

assignment would not be in the best interests of the child.” RSA 458-B:2, 

I(c)(1)-(2). There is nothing in the record demonstrating that the trial court 

made such a determination. To the extent that the respondent seeks to 

challenge the trial court’s requirement that he pay child support directly to 

DCSS, he fails to develop this argument for our review. See Halifax-American 

Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (“In the realm of 

appellate review, a mere laundry list of complaints regarding adverse rulings by 

the trial court, without developed legal argument, is insufficient to warrant 

judicial review.” (quotation and brackets omitted)). Accordingly, we conclude 

that the trial court did not unsustainably exercise its discretion in ordering the 

respondent to pay his child support obligation to DCSS by an immediate 

income assignment.

D. Order Modifying Parenting Plan and Permanent Stipulation

The respondent next makes several arguments challenging the trial 

court’s order on his motion to modify the parenting plan and permanent 

stipulation, in which the trial court: (1) denied his request to remove, on 

religious grounds, the requirement to obtain life insurance for the benefit of the 

child; (2) vacated, sua sponte, paragraph G of the parenting plan, thereby 

implicitly denying his request to hold the petitioner “accountable” for refusing 

to meet with him pursuant to that paragraph; (3) denied his requests to modify 

the parenting plan to give him more parenting time and two consecutive, rather 

than non-consecutive, weeks of vacation with the child; and (4) awarded 

attorney’s fees to the petitioner. We address each argument in turn.

The respondent first contends that the trial court committed reversible 

error because it attributed the respondent’s requested prayers of relief to the 

petitioner in its order. However, there is nothing in the record to suggest that 

this discrepancy was prejudicial to the respondent. See Giles v. Giles, 136 

N.H. 540, 545 (1992) (“For an error to require reversal on appeal, it must [have 

been] prejudicial to the party claiming it.” (quotation omitted)). Although the 

trial court’s order refers to “the Petitioner” when discussing the respondent’s 

individual prayers for relief, the trial court was clearly aware that the 

respondent made the requests. The trial court held a hearing on the motion in 

which it heard argument directly from the respondent. Furthermore, the trial 

court’s order states that it would “address the Respondent’s requests in the 

order in which they appear . . . in his motion” and later refers to “the 

Respondent’s Motion” as the basis for the award of attorney’s fees to the 

petitioner. Accordingly, this misattribution does not constitute reversible error. 

See id.

The respondent next challenges the trial court’s ruling on his request to 

remove the life insurance requirement. The respondent, however, does not 

argue that the trial court erred in denying the request. Instead, he argues that 
16

the trial court mischaracterized the intent and effect of the life insurance 

requirement when it noted in its order that the court, in ordering the 

requirement, had “imposed an obligation on both parties to secure their child 

support obligation with a life insurance policy.” Not only did the respondent 

fail to raise this argument to the trial court, see Halifax, 170 N.H. at 574, he 

provides no basis to support his assertion that the trial court’s characterization 

of the requirement was incorrect or that it prejudiced him in any way, see

Giles, 136 N.H. at 545. Accordingly, we uphold the trial court’s denial of this 

request.

The respondent next argues that the trial court did not have the 

statutory authority necessary to vacate, sua sponte, paragraph G in the 

parenting plan. See RSA 461-A:11 (2018). Generally, we will not overturn a 

trial court’s modification of an order regarding parenting rights and 

responsibilities unless it clearly appears that the trial court unsustainably 

exercised its discretion. In the Matter of Kelly & Fernandes-Prabhu, 170 N.H. 

42, 47 (2017). To the extent that resolution of the modification issue requires 

us to engage in statutory interpretation, our review is de novo. Id.

Paragraph G of the parenting plan required the parties to meet “as often 

as necessary” to review and adjust the parenting plan, and specifically required 

them to meet in March 2017 to revise the plan before the child began school. 

The respondent alleged that he and the petitioner met in March 2017 to 

discuss changes to the plan before the child began school, and agreed to meet 

again in January 2018 for that purpose. However, the petitioner thereafter 

refused to meet and rejected his proposed changes to the parenting plan. The 

petitioner did not dispute these facts, but contended that meetings with the 

respondent had not produced any agreements between the parties and made 

her feel uncomfortable. She further noted that the respondent did not agree to 

her proposals and would only agree to his own. The trial court, in vacating

paragraph G, reasoned that it was “not only unnecessary . . . , but also 

unlikely to produce any meaningful agreements of the parties.” The trial court 

noted that it was “more a source of conflict than a means by which conflict can 

be avoided” and “not statutorily based.”

RSA 461-A:11, I, grants a court authority to modify a permanent order 

concerning parental rights and responsibilities if it finds one of the predicate

circumstances specified in the statute. See Kelly, 170 N.H. at 47. The trial 

court here did not specifically identify which of the predicate circumstances

authorized it to modify the parenting plan. The respondent argues that, 

because neither party requested this modification, RSA 461-A:11, II provides

the only authority by which the court could have vacated this provision. That 

provision requires that the modification be “based on the best interest of the 

child.” RSA 461-A:11, II (“Except as provided in RSA 461-A:11, I(b)-(i) for 

parenting schedules and RSA 461-A:12 for a request to relocate the residence 

of a child, the court may issue an order modifying any section of a permanent 
17

parenting plan based on the best interest of the child.”). He argues that the 

court’s basis for vacating paragraph G does not fall within this provision.

The petitioner argues that this modification was justified under RSA 461-

A:11, I(f). Under RSA 461-A:11, I(f), a court may issue an order modifying a 

permanent order concerning parental rights and responsibilities where “[t]he 

modification makes either a minimal change or no change in the allocation of 

parenting time between the parents, and the court determines that such 

change would be in the best interests of the child.” The petitioner argues that 

the trial court’s modification falls within this provision because the 

modification had no impact on the allocation of parenting time and was in the 

best interests of the child.

We agree with the petitioner that the trial court’s modification did not 

affect the allocation of parenting time under the parenting plan. However, 

under either statutory provision identified by the parties, the trial court was 

required to find that removal of paragraph G was in the best interests of the 

child. See RSA 461-A:11, I(f), II. Although the trial court did not make an 

express finding in its order as to whether the modification was in the child’s 

best interests, we construe the trial court’s reasoning for vacating paragraph G

as an implied finding that this modification was in the best interests of the 

child, and find that it is supported by the record. See In the Matter of Kosek & 

Kosek, 151 N.H. 722, 724-25 (2005) (assuming the trial court found, and 

concluding that the record supports, that its modification to a visitation 

schedule was not contrary to the best interests of the children).

RSA 461-A:6, I (Supp. 2019) codifies the “best interests of the child” 

criteria, setting forth a list of non-exhaustive factors the court must consider, 

including “[t]he ability and disposition of each parent to foster a positive 

relationship and frequent and continuing . . . contact with the other parent, 

including whether contact is likely to result in harm to the child or to a 

parent.” RSA 461-A:6, I(e); see In the Matter of Miller & Todd, 161 N.H. 630, 

640-41 (2011). Here, the trial court heard testimony from both parties that 

they could not reach an agreement when they met regarding changes to the 

parenting plan. Furthermore, their representations provide an inference that 

the meetings failed to foster negotiations between the parties to reach an 

agreement and instead caused at least one party to feel uncomfortable. These 

facts, viewed in light of the extensive litigation that has resulted from 

disagreements between the parties, support a determination that the parties 

lack the ability to foster a positive relationship with each other, and that 

requiring continued contact between the parties would not be in the best 

interests of the child. See RSA 461-A:6, I(e). Accordingly, the trial court’s 

decision to vacate paragraph G of the parenting plan was not an unsustainable 

exercise of discretion.
18

The respondent next contends that the trial court erred in denying his 

request to modify the parenting plan to allow him to have additional parenting

time and two consecutive weeks of vacation with the child. He argues, for the 

first time on appeal, that his request falls within RSA 461-A:11, I(h), which 

allows the court to modify an order concerning parental rights and 

responsibilities where “one parent’s allocation . . . of parenting time was based 

in whole or in part on his or her work schedule and there has been a 

substantial change in that work schedule such that the existing order is not in 

the child’s best interest.” However, as the petitioner notes, the respondent 

failed to cite a statutory basis or provide evidence to the trial court to support 

this significant modification. Although the respondent asserted in his motion 

to reconsider that he was a full-time student at the time the parenting plan 

was executed, nothing in the record demonstrates that the allocation of 

parenting time in the plan was based, in whole or in part, on his status as a 

student, or that the existing parenting time is not in the child’s best interest. 

See RSA 461-A:11, I(h). Thus, the trial court’s decision to deny his request was 

not an unsustainable exercise of discretion.

Next, the respondent argues that the trial court unsustainably exercised 

its discretion by awarding the petitioner attorney’s fees. We will not overturn 

the trial court’s decision concerning attorney’s fees absent an unsustainable 

exercise of discretion. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 30 

(2017). To warrant reversal, the discretion must have been exercised for 

reasons clearly untenable or to an extent clearly unreasonable to the prejudice 

of the objecting party. Id. In evaluating the trial court’s ruling on this issue, 

we acknowledge the deference given a trial court’s decision regarding attorney’s 

fees. Id. If there is some support in the record for the trial court’s 

determination, we will uphold it. Id.

While the general rule in New Hampshire is that parties pay their own 

attorney’s fees, we have recognized various exceptions. Glick v. Naess, 143 

N.H. 172, 175 (1998). A prevailing party may be awarded attorney’s fees when 

that recovery is authorized by statute, an agreement between the parties, or an 

established judicial exception to the general rule that precludes recovery of 

such fees. Jesurum v. WBTSCC Ltd. P’ship, 169 N.H. 469, 482 (2016). One

judicially-created exception exists when a party must litigate against an 

opponent whose position is patently unreasonable. Glick, 143 N.H. at 175. A 

claim is patently unreasonable when it is commenced, prolonged, required, or 

defended without any reasonable basis in the facts provable by evidence, or 

any reasonable claim in the law as it is, or as it might arguably be held to be. 

Id.; see Kukene v. Genualdo, 145 N.H. 1, 3 (2000). A party’s unreasonableness 

is treated on an objective basis as a variety of bad faith, and made just as 

amenable to redress through an award of attorney’s fees as would be the 

commencement of litigation for the sole and specific purpose of causing injury 

to an opponent. Glick, 143 N.H. at 175. When attorney’s fees are awarded 

against a private party who has acted in bad faith, the purpose is to do justice 
19

and vindicate rights, as well as to discourage frivolous lawsuits. See Fat 

Bullies Farm, 170 N.H. at 30.

The trial court awarded attorney’s fees based upon a finding that the 

respondent’s motion to modify the parenting plan and permanent stipulation 

was “frivolous . . . and without any established legal basis.” The respondent 

argues that there was a legal basis for his motion — paragraph G of the 

parenting plan and the parenting plan generally. He argues that he 

“approached the court for assistance regarding the enforcement” of provisions 

in the parenting plan “put in place for dealing with parenting disagreements,” 

which the petitioner “appear[ed] to be flouting.”

As an initial matter, it was not unreasonable for the trial court to 

conclude that certain requests in his motion lacked a legal basis. As discussed 

above, the respondent provided no legal or factual basis to support his requests 

to modify the parenting time provisions of the parenting plan. Moreover, 

although his motion asserted that the life insurance provision of the permanent 

stipulation violated his religious beliefs, he made no such representation to the 

trial court at the hearing and ignored the trial court when it specifically asked 

him whether he had recently become a member of a particular faith.

Nonetheless, while it was reasonable for the trial court to deny the 

respondent’s request to enforce paragraph G of the parenting plan, this request 

did not lack a legal basis. At the time the respondent filed his motion, 

paragraph G was an enforceable provision of the parenting plan. Although the 

parties met in March 2017, they failed to reach an agreement, and the 

petitioner did not dispute that she thereafter refused to meet with the 

respondent. While it may have been reasonable for the petitioner to make this 

decision, given the parties’ inability to reach an agreement, at the time the 

respondent filed his motion paragraph G remained an enforceable provision 

that required the parties to meet to review and adjust the parenting plan “as 

often as necessary for the benefit of the child.” The parties’ pleadings —

including the petitioner’s motion to approve daycare and kindergarten 

enrollment — demonstrate that an ongoing disagreement existed between the 

parties with respect to specific provisions of the parenting plan. Therefore, the 

respondent’s request to enforce paragraph G, in an effort to resolve the parties’ 

dispute, had a legal foundation and does not provide a basis to support the 

award of attorney’s fees. Nevertheless, because the respondent’s motion also 

set forth requests that lacked a legal basis, we vacate and remand the trial 

court’s award to determine, in light of our decision, whether to award 

attorney’s fees pertaining to those particular claims.

E. Order Approving Daycare and Kindergarten Enrollment

Finally, the respondent argues that the trial court erred when it 
20

considered and approved the petitioner’s motion to enroll their child in private 

daycare and kindergarten. Specifically, the respondent contends that the trial 

court committed an unsustainable exercise of discretion when it ruled on this 

motion because paragraph G requires both parties to work together to make 

changes to the parenting plan before the child begins school. In light of the 

trial court’s proper decision to vacate paragraph G, the parties’ inability to 

reach an agreement, and the parenting plan’s provisions providing that the 

child primarily reside with the petitioner and attend school where the parent 

with primary residential responsibility resides, we conclude that the trial 

court’s decision to grant the petitioner’s motion was not an unsustainable 

exercise of discretion.

III. Conclusion

We conclude that the trial court properly exercised jurisdiction over the 

child custody proceeding under RSA chapter 458-A and the divorce action 

under RSA 458:5 and :6. Furthermore, we conclude that the trial court did not 

commit an unsustainable exercise of discretion in denying the respondent’s 

motion for contempt, motion to restrain, and motion regarding parental 

interference.

As for the trial court’s amended uniform support order, the trial court did 

not unsustainably exercise its discretion by applying the petitioner’s 

calculation of the respondent’s income in determining his amended child 

support obligation, declining to adjust the child support obligation, ordering 

the respondent to pay an arrearage, and ordering him to pay his child support 

obligation to DCSS by immediate income assignment. However, we vacate and 

remand the amended uniform support order for the trial court to: (1) consider 

income from the petitioner’s second job; (2) require the petitioner to comply 

with Family Division Rules 1.25-A(B)(1)(c) and 2.16 by providing four pay stubs

per employer or to establish good cause to waive this requirement; and (3) 

consider the amount of child support the respondent paid during the arrearage 

period in its arrearage calculation.

Finally, we conclude that the trial court did not unsustainably exercise 

its discretion by denying the respondent’s requests to modify the parties’ 

parenting plan and permanent stipulation and vacating paragraph G of the 

parenting plan. We vacate the award of attorney’s fees to the petitioner and 

remand the issue to the trial court.

Affirmed in part; vacated in part; 

and remanded.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.