Under New Hampshire law, a marital court has the authority to modify a child support order when the moving party demonstrates that there has been a substantial change of circumstances. The statute which allows modification based upon a substantial change of circumstances does not, however, define that term. Whether an event, or a series of events, constitutes a substantial change of circumstances is a fact-driven exercise for the court to resolve.

The Supreme Court reiterated this in the recent case of Adams and Houle decided September 28, 2007. In Adams , the couple was divorced in February 2005. The husband was granted primary custody of the children and the wife was given visitation rights. The wife was not ordered to pay child support but was required to provide health and dental insurance for the children.

Shortly after the divorce, the wife moved to Kentucky and remarried. The husband then filed a motion to modify the divorce decree to, amongst other things, request that the wife pay child support. Following a hearing, the trial court held that the wife's relocation to Kentucky coupled with the fact that she no longer visited with the children constituted a substantial change of circumstances and thereby warrants modification of the child support.

On appeal, the Supreme Court held that in determining whether a substantial change in circumstances has occurred, the trial court must look at the needs of the parties and their respective abilities to meet those needs. The trial court must have all information relevant to the determination of whether a substantial change of circumstances has occurred before it exercises its authority to modify the support order.

In this case, the trial court had no evidence to show that the husband's financial burden of caring for the children had increased in any way since the wife's relocation to Kentucky and her failure to visit with the children. In fact, the only evidence the trial court had before it were the couple's financial affidavits which, according to the Supreme Court, painted only a static financial picture of the parties, and gave no basis by which to compare the husband's expenses before or after the wife's relocation. Given that the husband had failed to present any facts which showed that his financial burdens had changed following the wife's relocation to Kentucky , the Supreme Court reversed the trial court's determination that the wife's relocation “as a matter of law” constituted a substantial change of circumstances.

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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