On October 31, 2006, the Supreme Court in the case of Fulton and Fulton , issued another in a continuing series of opinions which clarified the definition of income for child support purposes.

Under New Hampshire law, a parties' child support obligation is calculated by examining their monthly gross incomes. Income is defined very broadly, and can include not only a person's wages, but also their self-employment income, personal injury proceeds, worker's compensation benefits, adoption subsidies, and other income streams.

The Supreme Court has generally taken a negative view on any attempt to exclude revenue sources from this definition. However, in the Fulton case, the Supreme Court held that a gift was not "income" for child support calculation purposes.

In Fulton , the parties were divorced in 2002. The husband obtained a new position following the divorce, and as a result doubled his salary. Three years after the divorce, the wife sought to modify the husband's child support obligation. She argued that the husband's increased salary was a substantial change of circumstances which warranted modification. At the hearing, the court heard evidence that the wife received periodic gifts from "some source" that she uses to support herself and, therefore, these gifts should be included as income to her for calculating child support.

On appeal the Supreme Court held that a gift is not income for child support purposes. Specifically, all the items defined as income are things that a person has a legal right to obtain and the provider has a legal obligation to give. However, a gift is voluntarily given by the giver. A recipient cannot compel the giver to make a gift.

The Supreme Court also found that if gifts were included as income, it would be very onerous to calculate a party's income; because, arguably, all gifts, no matter how small or infrequent, should be accounted. Moreover, parties would be tempted to disguise gifts as loans to avoid inclusion as income.

The Supreme Court cautioned that just because gifts are not included as income for child support does not mean that they have no impact on the support calculation. Once the guidelines child support amount is calculated the Court has the discretion to deviate up or down from the guidelines number if the guidelines number results in an inappropriately low or unreasonably confiscatory support order.

Therefore, if the child support recipient is receiving regular gifts which help them maintain the standard of living, the Supreme Court may consider those gifts as a reason to deviate from the guidelines amount.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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