Family Forum / Parenting / Parenting / August 2008

http://www.cmonitor.com/apps/pbcs.dll/article?AID=/20080822/NEWS01/808220342

High court overturns child support order
Father deemed unable to pay due to injury

By SARAH LIEBOWITZ Monitor staff
August 22, 2008

The New Hampshire Supreme Court overturned a trial court's child support
order yesterday, ruling that a man who shot himself in the face - but failed
to kill himself - wasn't "voluntarily underemployed."

At issue was how Calvin Dunn's physical injuries affected the amount of
child support he owed for his twin daughters. If a judge deems a parent
voluntarily underemployed, the court can require that parent to pay child
support based on his or her past earnings.

Under New Hampshire law, however, a parent can't be voluntarily
underemployed if he or she is physically or mentally incapacitated.

But Laconia Family Court Judge Lucinda Sadler found that because Dunn's
injury was self-inflicted - he had tried to take his own life - he should be
considered voluntarily underemployed for the purposes of child support.

"He knew what he was doing at the time," Sadler wrote last year. "He
therefore bears the consequences both physically and financially."

The (NH) Supreme Court disagreed.

If a parent is found to be physically or mentally incapacitated, he or she
cannot be considered voluntarily underemployed when it comes to child
support, according to the Supreme Court ruling, which was issued yesterday.

The Supreme Court's ruling, written by Justice Gary Hicks, hinged on the
state's child support law. "Having made a finding of physical
incapacitation, the trial court erred in finding that the respondent was
voluntarily underemployed," Hicks wrote.

The case will now go to the Laconia Family Court for a new determination of
how much Dunn, of Gilford, owes for child support, said Benjamin King, an
attorney with Douglas, Leonard and Garvey who represents Dunn.

The voluntary underemployment portion of New Hampshire's child support law
is intended to address a parent who, "in order to reduce his child support
obligations, voluntarily earns less than the parent is capable of earning,"
King said. "So the lawyer abandons his law practice and goes and takes a job
at McDonald's."

If a judge finds that a parent is voluntarily underemployed, the court "is
entitled to impute the income to you that you are capable of earning," he
said.

"Rather than looking strictly at the plain language" of the state's child
support law, Sadler "erroneously opted to modify the language of the
statute," Dunn's attorneys wrote in a Supreme
Court brief.

It's irrelevant whether the physical incapacity resulted from a
self-inflicted injury, they argued.

Dunn "shot himself in the face not because he wanted to become underemployed
or wanted to circumvent child support obligations, but rather because he
wanted to 'take his own life,' as the trial court specifically found,"
Dunn's attorneys argued.

According to court documents, in 1994 Dunn and Joanne Fontaine became the
parents of twin daughters. The couple didn't marry. In November 2001, Dunn
attempted to kill himself by shooting
himself in the face. He spent two months in the hospital, and doctors had to
reconstruct his lower jaw. He has undergone several surgeries.

Dunn and Fontaine's relationship ended about 2004. In the fall of 2004, Dunn
agreed to pay Fontaine $650 a month for child support. In 2005, Fontaine
filed a child support and custody
petition with the court.

After a temporary hearing, Dunn was ordered to pay $850 in child support
monthly. He contested that amount, arguing that he lived off a limited
income, according to the Laconia Family Court ruling.

Dunn said that his doctor had only cleared him to work 15 hours a week, and
that he had been instructed not to "spend much time around dirty and dusty
jobs," according to the Laconia
Family Court ruling.

As a result of his injuries, Dunn receives $934 monthly in Social Security
disability benefits, his attorneys wrote in their Supreme Court brief.

Before his injury, Dunn had worked for family businesses, and in 2000 he
started a company to work on construction vehicles and do minor excavation
work, according to the Laconia Family Court ruling.

But in Laconia Family Court, Fontaine disputed Dunn's income.

Fontaine argued that Dunn has access to a joint checking account with his
mother, and that his "income should be calculated in the $100,000 range to
reflect the amount of money he uses to
support his lifestyle," according to the Laconia Family Court ruling.

She also attempted to show that Dunn is the true owner of a contracting
company owned by Dunn's mother. "The documentary evidence does not bear this
out," Sadler wrote. Dunn and his mother told the court that he is an
employee of his mother's company.

Sadler also considered the financial gifts Dunn receives from his mother.

Fontaine represented herself in the Supreme Court case, and didn't file a
brief with the court. She declined to comment on the case yesterday.