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3Jun, 10

In the case of Martin and Martin (decided March 13, 2008), the New Hampshire Supreme Court clarified language in the child support statute which allow parties to modify a child support order. This clarification may have far reaching effects as to when a party is entitled to seek modification of support order.

Under New Hampshire law a party paying or receiving child support may have a child support order modified under either of two circumstances. The first is that a party can seek modification if they prove that there has been a substantial change of circumstances since the date of the last order which renders the prior order unfair or unjust. Second, either the party paying or receiving child support can automatically have the order modified every three years.

The question answered in Martin is when the three year clock begins to run. In Martin, the wife filed for divorce in 2001. In the fall of 2001 the trial court issued a temporary divorce decree and ordered the husband to pay $1,500.00 per month as child support. In 2003, the trial court issued a final order and ordered the husband to pay $2,065.00 per month in child support.

Both parties appealed the trial court’s final order. In May of 2006, the New Hampshire Supreme Court upheld the trial court’s calculation of child support but reversed the trial court’s valuation of the husband’s business. While the appeal was pending, the husband was paying child support consistent with the temporary divorce decree issued in 2001. After the Supreme Court sent the case back to the trial court for re-evaluation of the husband’s business interest, the wife moved for modification of her child support, claiming three years had passed since the date of the entry of the last order of support. The wife claimed the last order of support was the final divorce decree issued in 2003. The husband argued that, because of his appeal, the final divorce decree never went into effect. Instead, it only became effective when the trial court took up the case after the Supreme Court had reversed and remanded the decision.

The trial court agreed with the husband and held that the wife was not entitled to a modification of child support based upon three years elapsing since the last order. The wife appealed the trial court’s decision to the Supreme Court, which disagreed with the trial judge. The Supreme Court held that the entry of the last order of support occurs “on the date the trial court issues the order of support and not the date the order becomes effective subsequent to an appeal”. Therefore, parties who are looking to modify their child support obligation based upon the three year time table must start that clock running from the date of the last child support order. The fact that an appeal has been filed does not stop that clock.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A.  Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.