PARENT CLAIMS HE DOESN’T OWE BACK CHILD SUPPORT WITHOUT A CONTEMPT FINDING: NH SUPREME COURT SAYS HE’S WRONG~4 min read

The NH Supreme Court recently had the opportunity to answer the question of whether a parent can be found to owe back child support when they are not found in contempt in a case called In the Matter of Curtis, 2025-0007. Contempt is often found when a party to a case has not complied with a Court order. Failure to pay child support under a court order often can lead to a finding that a parent is in contempt of that order.

In the Curtis case, the parties are the parents of four minor children. The mother registered a child support order issued by another state in New Hampshire and although the case is not clear on this, appears to have filed to modify or enforce the other state’s order. The mother obtained a default judgment in 2016 after the father did not attend the hearing. However, despite father’s absence from the hearing, the mother was able to provide the court with his paystubs to help the court make a child support calculation. Mother also presented evidence at the hearing that, in addition to his regular employment, father would engage in additional work. This other work is colloquially referred to as “under the table” in the order, which would generate additional income for father. Mother requested that father be required to pay her 40% of any income earned from these additional sources as additional child support, and this request was incorporated into the Court’s child support order.

Mother learned that father had changed jobs and subsequently received tax documentation indicating that father had earned income higher than the income figure that was assigned to him for purposes of the child support calculation at the time of the 2016 hearing. Mother filed a petition for contempt, arguing that father did not inform her of the job change as required and had not paid child support on any income he had earned in excess of the figure the court had used for the child support calculation.

The trial court found the phrase “under the table” from the 2016 order to be vague and declined to find the father in contempt for not paying child support from his additional income. However, the trial court specifically interpreted the 2016 narrative order on the issue of child support to include 40% of any income which was in addition to the salary used when calculating the father’s child support obligation. The trial court relied on this provision from the 2016 order to find that the 2016 child support order was meant to apply to any additional income father received from doing independent work outside of his regular employment. Because of this, the trial court determined that the father had a child support arrearage of $18,772.40, based on the income earned above the reported salary used to calculate child support.

Father appealed, arguing that the trial court had made a mistake in determining that he had a child support arrearage without finding him in contempt and by interpreting the “under the table” provision of the 2016 order to include taxable income. Father argued that the phrase “under the table” cannot reasonably refer to taxable income. However, the Supreme Court found it noteworthy that the trial court specifically found that the 2016 order required father to pay 40% of any income over his reported salary as child support.

There was not a copy of the 2016 narrative order on child support provided to the Supreme Court with the record of this matter on appeal. Because the Supreme Court did not have a copy of the order, the court was not able to determine that the trial court had interpreted the 2016 narrative order incorrectly. Further, the Supreme Court found that the trial court has broad discretion in issuing and enforcing child support orders. Therefore, the trial court did not need to find the father in contempt in order to determine that there was a valid judgment that father had not complied with and to enforce an arrearage.

The takeaways here are that the trial court has broad discretion in enforcing a child support order, including enforcing an arrearage without finding a party in contempt for nonpayment, and that presenting the proper record to the court is an essential component of getting the court to consider your appeal. If you need assistance with an appeal of a family law matter, our experienced attorneys can help. Please contact our office to schedule a consultation.