In re Barrett
150 N.H. 520, 841 A.2d 74 (2004)

  • John and Susan were married with two kids in Pennsylvania. Then they got a divorce. As part of the divorce settlement, Susan got primary physical custody of the kids, and John had to pay child support.
    • Two years later, Susan took the kids and moved to New Hampshire. John continued to pay child support.
  • Susan decided that because of her daughter’s behavioral problems she needed to be enrolled in a special (expensive) private school.
    • Both John and Susan submitted financial forms to the school, but did not receive any financial aid.
  • Susan paid for the first year’s tuition, but asked John to help with the next year’s. He refused. Susan went to court in New Hampshire and asked them to order John to pay (aka a modification of the child support order).
    • Susan argued that there had been a material change in circumstances because of increased need of the child.
  • The Trial Court found that John did not have the ability to pay. Susan appealed.
    • Susan argued that John’s income was higher than he said it was because he had failed to include his new wife’s income in his financial statement.
  • The Appellate Court reversed and ordered John to pay $8k. He appealed.
    • The Appellate Court recalculated John’s income and found he did have the ability to pay.
  • The New Hampshire Supreme Court reversed and remanded.
    • The New Hampshire Supreme Court looked to New Hampshire law (RSA 458-C:5) and found that a non-custodial parent is not required to pay extra child support for a private school education unless there are ‘special circumstances’.
      • Basically, public school is free, so unless there is a good reason, New Hampshire finds that private schools are an unnecessary luxury.
      • In this case, the Court remanded to the Trial Court to determine if the daughter’s behavioral problems were enough to warrant ‘special circumstances’.
    • The Court found that a new spouse’s income is not to be considered when determining child support payments (except for a few exceptions). However, this wasn’t a situation in which child support was being calculated. This was a situation where the Court was deciding if there were ‘special circumstances’ that justified a deviation from the child support guidelines.
      • …and that included both a determination of whether the child needed the school as well as a finding that the non-custodial parent had ‘an ability to pay’.
        • So basically, while the new spouse’s income could not be considered to determine general child support, it could be considered when determining if the court should deviate from their guidelines due to special circumstances.