6/7/10, estate of richard c. gangi's brief
TRANSCRIPT
THE STATE OF NEW HAMPSHIRE
SUPREME COURT
JUNE TERM
2010 SESSION
Sheila Gangi, et al. v. Estate of Richard C. Gangi
Docket No. 2009-0868
________________________________________________________________
APPEAL FROM THE HILLSBOROUGH COUNTY SUPERIOR COURT,
SOUTHERN DISTRICT ______________________________________________________________
BRIEF OF APPELLEE
ESTATE OF RICHARD C. GANGI ________________________________________________________________
Doreen F. Connor, #421 Wiggin & Nourie, P.A. PO Box 808 Manchester, NH 03105 (603) 669-2211
If oral argument is scheduled, Doreen F. Connor will represent
Appellee
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TABLE OF CONTENTS
Table of Authorities .............................................................................................................ii Statement of Facts................................................................................................................1 Summary of Argument.........................................................................................................3 Argument .............................................................................................................................5
I. RSA 557:27 Recognizes “Debts Due From the Estate” and Claims
“For the Support of The Children” and The Two Are Not Interchangeable..............................................................................................5
. II. The Treatment of Child Support Obligations in RSA 557:27 and
554:19 Do Not Involve Similarly Situated Children and Thus the Age Restriction in 557:27 is Not Unconstitutional. ....................................14
III. The Classifications Among Creditors Recognized in RSA 557:27 is
Rational Given the Unavailability of Funds Sufficient to Pay all Claims .........................................................................................................16
Conclusion .........................................................................................................................24 Certification .......................................................................................................................25
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TABLE OF AUTHORITIES Cases Appeal of Brady, 145 N.H. 308 (2000)..............................................................................14
Appeal of Reid, 143 N.H. 246 (1998) ..................................................................................6
Brannigan v. Usitalo, 134 N.H. 50 (1991) ..........................................................................8
Bromfield v. Seybolt Motors, Inc., 109 N.H. 501 (1969)...................................................22
Crowley v. Frazier, 147 N.H. 387 (2001)............................................................................6
Dupuis v. Click, 135 N.H. 333 (1992) .......................................................................9,10,17
Estate of Robitaille v. N.H. Dep’t. of Rev. Admin., 149 N.H. 595 (2003) ...................17,18
Grinnell v. State, 121 N.H. 823 (1981)..............................................................................18
Guggenheimer v. Guggenheimer, 99 N.H. 399 (1955)......................................1,9,10,17,21
Hirst v. Dugan, 136 N.H. 5 (1992) ......................................................................6,8,9,16,17
In re Estate of Bennett, 149 N.H. 496 (2003) ....................................................................16
In re Sandra H. 150 N.H. 634 (2004) ................................................................................17
Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502 (2003) .............................9
LeClair v. LeClair, 137 N.H. 213 (1993) ..........................................................................17
N. Country Envtl. Servs. v. State of N.H., 157 N.H. 15 (2008)..........................................14
Pennelli v. Town of Pelham, 148 N.H. 365 (2002)..............................................................6
People v. Robinson, 124 P.3d 363 (2005)..........................................................................19
State v. Chrisicos, 159 N.H. 405 (2009) ............................................................................11
State v. Deflorio, 128 N.H. 309 (1986)..............................................................................18
State v. Hayden, 158 N.H. 597 (2009)...............................................................................11
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State v. Rix, 150 N.H. 131 (2003) ......................................................................................22
State v. Wamala, 158 N.H. 583 (2009) .........................................................................19,20
Stebbins v. Stebbins, 121 N.H. 1060 (1981) ..............................................................9,10,17
Winnisquam Reg. Sch. Dist v. Levine, 152 N.H. 537 (2005).............................................20
Other
RSA 72:12-a.......................................................................................................................14
RSA 74:7-a.........................................................................................................................14
RSA 166:19........................................................................................................................24
RSA 507:8-a.......................................................................................................................22
RSA 554........................................................................................................................11,12
RSA 554:19................................................................................................................ Passim
RSA 554:19 (IV)................................................................................................................13
RSA 554:19(V) ...............................................................................................................7,13
RSA 557.............................................................................................................................12
RSA 557:22.......................................................................................................................2,4
RSA 557:27................................................................................................................ Passim
Leila Dal Pos, N.H. Bar Journal, Creditor Issues & Estate Administration, 16 (Fall 2009).....................................................................................................................16 Opinion of the Justices (Limitation on Civil Actions), 137 N.H. 260 (1993) ....................15
Opinion of the Justices (Voting Age In Primary Elections II), 158 N.H. 661 (2009) .......18
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STATEMENT OF CASE AND UNDERLYING FACTS
In the Superior Court proceedings the trial court (J. Barry, Jr.) granted the
Estate’s Motion to Dismiss Ms. Gangi’s child support claim pursuant to RSA
557:27. The Court rejected Ms. Gangi’s argument that child support obligations
were the equivalent of debts against the insolvent estate under RSA 557:27 and it
denied Ms. Gangi’s constitutional challenge. This appeal followed.
The decedent’s minor son was born in 2001 and was 9 ½ when Mr. Gangi
died in 2007. (Appendix, p. 59). When the decedent divorced the Petitioner in
2001 the parties Uniform Support Order established a monthly child support
obligation in the amount of $1,961 per month. (Appendix, p. 59). Following Mr.
Gangi’s death, the Petitioner filed a claim for future child support against the
Estate. She initially sought $3,200 per month based upon the decedent’s alleged
modification of the parties’ child support agreement. (Appendix, p. 59). The
Administrator rejected this claim and calculated child support based upon the
$1,961 figure recognized in the parties’ Uniform Support Order. Id. The
Administrator recognized that the parties’ permanent stipulation provided that all
obligations were a charge against the estate and not extinguished at the time of
death as in Guggenheimer v. Guggenheimer, 99 N.H. 399 (1955). (Appendix, pp.
61-62).
The Administrator found the value of a future child support order through
the age of 18 was $167,000, which he approved, “well knowing funds may not be
available to pay all or even a portion of the sum.” (Appendix, p. 62). The
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Administrator further noted “that if this estate ends up in an insolvent situation,
this claim would be treated differently and probably not recognized under RSA
557:22 through RSA 557:27.” (Appendix, p. 63). The Administrator also
concluded that the minor’s $1,551 in monthly Social Security survivor benefits
could not be offset as a credit against the Estate’s future child support obligations.
(Appendix, pp. 63-64, 60).
When Richard C. Gangi died substantial debts were asserted against his
Estate. As a result of those debts, the parties in this case agreed that the Gangi
Estate was insolvent as the claims advanced against the Estate exceeded its
available assets. (Appendix, p. 13, ¶13);(See also August 6, 2009 Transcript,
pp.29-30). Following the parties assent to designate the estate as insolvent,
Attorney Arthur Connelly was appointed in April 2008 to file an accounting of the
claims asserted against the estate. (Appendix, p. 86). On August 31, 2009, the
Gangi Estate’s Executor submitted an account of assets totaling $320,008.05.
(Appendix, p.94). Against that $300,000.00 Estate, Commissioner Connelly
recognized claims exceeding $450,000.00 including preferred claims totaling
$191,993.86 and general claims totaling $266,988.27.
Commissioner Connelly’s accounting of preferred claims included
$167,000 in future child support obligations. (Appendix, p. 91). The Estate’s
Administrator challenged the Commissioner’s decision to designate the decedent’s
child support obligations as a preferred claim. RSA 557:27, which governs
insolvent estates, recognizes child support obligations as a preferred claim, prior to
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the legacies given by will, up to the age of seven. At the time of Mr. Gangi’s
death, his sole heir was nine years of age and thus any child support obligations of
the decedent by statute were not entitled to preferred claim status. Id.
SUMMARY OF ARGUMENT
This probate appeal arises out of an insolvent estate. The statutes governing
insolvent estates require that the Estate initially pay administrator expenses, burial
expenses, widow allowances and taxes. Following payment of the foregoing
preferred claims, the Estate is obligated to pay “the debts due from the estate and
for the support of the children, if any, under seven years of age…” RSA 557:27.
At the time of the decedent’s death, he had one child who was over the age of
seven. Although the insolvency Commissioner approved Ms. Gangi’s claim for
future child support that action was appealed and the Superior Court dismissed the
claim.
On appeal, Ms. Gangi, on behalf of the decedent’s son, makes two
arguments. First, she argues future child support, which was chargeable against
the defendant’s Estate, constitutes a “debt” as opposed to child support. Under
well-recognized rules of statutory construction, Ms. Gangi’s arguments are
unpersuasive. If child support were intended to be included within the category of
debts due to the estate, there would have been no reason for the Legislature to
include additional language expressly recognizing the right of a minor child to
seek child support. RSA 557:27. Second, if child support was chargeable against
the estate as a debt, this Court would not, in prior cases, have dismissed claims of
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child support, which were not specifically stipulated as chargeable against the
Estate because a debt survives death whereas child support does not.
Although the Petitioner’s Brief quotes extensively from foreign jurisdictions
that law has no bearing on this Court’s interpretation of New Hampshire RSA
557:22 and 557:27. Likewise, the Petitioner’s reliance upon recent legislative
action with respect to insolvent estates has no bearing on this case, as any future
amendments to these statutes would not apply to this Estate, which was opened in
2007. (Appendix, p.59).
Petitioner alternatively seeks to overturn the Superior Court decision denying
the Estate’s obligation to pay child support from this insolvent Estate based upon
an equal protection challenge. Petitioner argues that Legislative action in 1975,
which increased the duration during which one could seek child support from a
solvent estate from seven to eighteen years renders the seven-year classification in
the insolvency estate statute unconstitutional. Compare RSA 554:19; RSA 557:27.
The Estate maintains that a decedent’s obligation to pay future child support, as
well as the duration of any support obligation, presents a matter for legislative
action not judicial action since the obligation arises by statute as opposed to
common law.
The Estate also disputes that the different age classifications gives rise to an
equal protection challenge since the children of solvent estates are not similarly
situated with those children of insolvent estates. Finally as found by the Superior
Court there is a rational basis for the different classifications. The Superior Court
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found that the decision to limit child support to those under the age of seven
“could represent a rational legislative judgment that, after some level of protection
is afforded to the decedent’s most vulnerable children, the decedent’s remaining
estate should pass as it would normally either under a will or pursuant to
intestacy.” (Appendix, p. 8). The Trial Court properly applied a rational basis test
in its review of RSA 557:27 as the classifications with respect to the receipt of
child support does not involve a suspect class or a fundamental right.
ARGUMENT
I. RSA 557:27 Recognizes “Debts Due From the Estate” and Claims “For the Support of The Children” and The Two Are Not Interchangeable.
Ms. Gangi first argues that her claim for future child support should be
characterized as a debt of the Estate as opposed to an obligation for “the support of
the children.” (Petitioner’s Brief, p.7). This argument asks the Court to ignore the
express reference in the underlying statute, which provides for the payment of the
deceased’s child support obligations after the Estate’s “debts.” RSA 557:27.1 If,
as Ms. Gangi argues, child support was intended to be encompassed within the
“debts due” category, there would have been no need for the Legislature to
recognize after such debts an obligation for the Estate to pay “the support of the
children.”
1 The distinction between Estate debts and the Estate’s obligation to pay child support and maintenance is also recognized under the solvent estate statutes. RSA 554:19.
6
Ms. Gangi’s argument, that child support obligations should be
characterized as a debt, asks this Court to ignore clear statutory language that
specifically encompasses child support obligations. Ms. Gangi’s argument, if
accepted, would render the statute’s support of children clause language
superfluous. This Court’s interpretation of a statute presents a pure question of
law. Crowley v. Frazier, 147 N.H. 387, 389 (2001). “The starting point in any
statutory interpretation case is the language of the statute itself.” Crowley, at 389.
This Court looks to the plain and ordinary meaning of the words in the context of
the statute as a whole. “Basic statutory construction rules require that all of the
words of a statute must be given effect and that the legislature is presumed not to
have used superfluous or redundant words.” Pennelli v. Town of Pelham, 148
N.H. 365, 367 (2002)(quoting Appeal of Reid, 143 N.H. 246, 252 (1998)). If child
support were intended to be paid as a “debt” of the Estate, the Legislature would
not have imposed an obligation for “the support of the children….”. RSA 557:27.
The Petitioner has not articulated any alternate explanation for RSA
557:27’s reference to and inclusion of “support of the children” language as an
obligation separate and distinct from “debts due from the Estate.” Id. Reading the
statute as a whole confirms that child support obligations cannot be characterized
as a debt because they are a separately identified charge against the Estate.
In addition to the plain language, statutory support for its conclusion, the
trial court’s interpretation of RSA 557:27 is supported by this Court’s 1992
decision in Hirst v. Dugan, 136 N.H. 5 (1992). In Hirst, the plaintiff was a single
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mother who gave birth one week after the father’s death. Although the parties
were not married, paternity was admitted. The Estate dispute was between the
children of the decedent’s former marriage and the decedent’s new born. Because
Mr. Hirst’s last child was born after his death no child support order was ever
issued. The Hirst Estate, unlike the Gangi Estate, was solvent. Ms. Hirst sought
child support under RSA 554:19(V), which recognizes “[t]he support and
maintenance of infant children of the deceased” as a fifth priority charge against a
solvent Estate. Despite the availability of funds exceeding $500,000.00 and the
clearly sympathetic nature of the plaintiff’s request for future child support, this
Court recognized that the schedule established in RSA 554:19, “merely establishes
the priority of payment of allowable charges against the estate, . . . and is not itself
the source of the obligations giving rise to the charges.” Id. at 7. This Court went
on to further interpret paragraph V noting that:
[s]o understood, paragraph V of RSA 554:19 . . . provides only that such child support obligations as survive the father’s death shall be fifth in line in priority of payment. We have consistently held that ‘unless otherwise provided, support payments terminate upon the death of either spouse, and the estates of the spouses have no rights or responsibilities concerning these payments.’[citations omitted] Thus, something more than simply the father’s death is required to impose an obligation on his estate for child support. What is required is that the obligation on the estate be expressly provided for before death. If, therefore, by way of a divorce decree or support order a court ‘mak[es] an order during the life of the father binding on his estate,’ Gugggenheimer, 99 NH at 402 ‘the children become judgment creditors by force of the decree for support.’ Id at 403. In such circumstances, RSA 554:19, V would operate to create a charge against the estate for child support ranking fifth in payment of priority.
Id at 7-8. (Emphasis added).
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Although Hirst involved a solvent estate, the statute governing insolvent
estates contain a similar schedule pursuant to which claims are ranked in priority.
Pursuant to this Court’s 1992 ruling in Hirst, a child support order will be
recognized as an obligation against a solvent estate after the “just debts”
recognized as a fourth level priority (RSA 554:19 (IV)) if the parties have agreed
that the support obligation will survive the obligor’s death as a charge against his
estate. This Court’s decision in Hirst recognizes that the priority schedule set
forth in RSA 554:19 with respect to solvent Estates and presumably RSA 557:27,
which sets forth the schedule for insolvent Estates, does not create a post-death
child support obligation. Rather, these statutes recognize the ranking to be
afforded such claims if the family court has imposed such an obligation as a
charge against the estate.
This Court’s acknowledgement that a child support order, chargeable
against a solvent Estate, would “rank[ ] fifth in priority of payment” behind the
fourth ranked “just debts owed by the deceased” is in direct contradiction of the
argument advanced by Ms. Gangi. Hirst at 7, 8. Although Ms. Gangi has not
asked this Court to overrule Hirst v. Dugan, the remedy she seeks would require
such action. Ms. Gangi has failed to articulate sufficient grounds for overruling
Hirst. This Court recognized in Brannigan v. Usitalo, 134 N.H. 50, 53 (1991),
that stare decisis is “essential if case-by-case judicial decision making is to be
reconciled with the principle of the rule of law, for when governing legal standards
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are open to revision in every case, depending cases become a mere exercise of
judicial will, with arbitrary and unpredictable results.” (Quotation omitted).
To ensure the objectives of stare decisis are protected, this Court sparingly
reverses cases only in instances where “the ruling has come to be seen so clearly
as error that its enforcement was for that very reason doomed.” Jacobs v. Director,
N.H. Div. of Motor Vehicles, 149 N.H. 502, 504-505 (2003)(quotation omitted).
Several factors that may influence this Court’s decision as to whether and when to
overrule past precedent include:
(1) whether the rule has proven to be intolerable simply in defying practical workability; (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling; (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.
Id. at 505 (quotation omitted).
Ms. Gangi has not articulated a basis sufficient to sustain her burden of
proof that this Court’s decision in Hirst v. Dugan has proven to be so unworkable
or badly reasoned that its holding should be reversed.
In order to grant Ms. Gangi the relief she seeks and rule that child support
obligations constitute a debt owed by the Estate, this Court must also overrule
numerous other cases in which child support payments were extinguished upon the
obligor’s death as the support obligations had not been recognized as a charge
against the Estate. See e.g. Dupuis v. Click, 135 N.H. 333 (1992); Stebbins v.
Stebbins, 121 N.H. 1060 (1981); Guggenheimer v. Guggenheimer, 99 N.H. 399
10
(1955). If, as Ms. Gangi’s argues in this case, future child support obligations are
interchangeable with the debts due from the Estate, these child support payments
should not have been dismissed as debts can be paid by the Estate without special
language that makes them a charge against the Estate.
Ms. Gangi claims the Court and Administrator failed to address and
appreciate that her claim against the Estate is in the nature of a property
settlement: ascertainable in amount, definite in duration and agreed to by a party
to the settlement with further authority as a court order. (Brief, p.10). This
argument is inconsistent with decades of law from this Court, which recognize that
an Order for child support is not the equivalent of a property settlement even
though it can be, with proper language, enforced as a support order against an
Estate with appropriate language. Guggenheimer v. Guggenheimer, 99 N.H. 399
(1955), Dupuis v. Click, 135 N.H. 333 (1992); Stebbins v. Stebbins, 121 N.H. 1060
(1981). The procedural steps, which ensure that a child support Order is not
extinguished with the death of the obligor does not change the nature of the claim
and does not transform a child support Order into a contractual debt with different
priority against a solvent or insolvent Estate.
Ms. Gangi also argues that the trial court’s enforcement of the probate
statutes erodes the enforceability of the Divorce Decrees. (Brief, p.11). She
argues that child support obligations are no less deserving than any other contracts
and judgments and should have a different priority in the probate statutes. Ms.
Gangi’s personal opinion as to which financial obligations should have priority in
11
ranking against the Estate does not overrule the collective wisdom of the
Legislature, which was tasked with establishing a schedule of prioritized debts.
One could argue that the decedent’s child support obligations, from a
philosophical standpoint, are more important than the burial expenses of the
Estate, but that opinion does not overrule the clear schedule established by the
statute. Regardless of one individual’s opinion on the priority schedule, absent
Legislative action, this Court is tasked with fulfilling the various financial
obligations in accordance with the hierarchy created by the Legislature. In that
regard, case law from other jurisdictions is irrelevant to this Court’s interpretation
of New Hampshire statutory probate law.
Ms. Gangi also argues that Legislative history does not support the
administrator and trial court’s interpretation of RSA 557:27. Yet, this Court
interprets “legislative intent from the statute as written and will not consider what
the legislature might have said or add language that the legislature did not see fit
to include.” State v. Hayden, 158 N.H. 597, 599 (2009). This Court does not resort
to legislative history when interpreting a statute unless there is more than one
reasonable interpretation of the challenged provision. State v. Chrisicos, 159 N.H.
405, 408 (2009). Ms. Gangi has failed to articulate an alternate interpretation of
RSA 557:27’s statutory clause for “the support of the children” provision and thus
there is no basis for this Court to undertake a legislative history review.
Moreover, Ms. Gangi’s reference to legislative history surrounding the
revisions to the child support age classification in a solvent estate under RSA 554
12
is irrelevant to this Court’s analysis of the age classification applicable against an
insolvent estate in RSA 557. Furthermore, the 1997 revisions to the solvent estate
statutes does not contradict the analysis of the trial court in its interpretation or
application of the age classification in RSA 557:27 for insolvent estates. The
legislative history references identified by Ms. Gangi indicate that the legislative
revisions to RSA 554 sought to bring the statutory provisions into conformity with
provisions for Medicaid repayments. (Appendix, pp. 112-117). This concern and
the corresponding legislative amendments have no bearing on the priority ranking
of child support against other financial obligations owed by this insolvent Estate.
The Legislature’s intent to make the payment of child support obligation a priority
ahead of Medicaid reimbursement obligations does not indicate an intent on the
part of the Legislature to make child support payments a priority over other
contractual debts. Furthermore, decades of law from this Court have established
that absent specific measures to make child support an obligation that survives
death neither the Legislature, nor the Court will force an Estate to pay child
support.
Ms. Gangi’s Brief also questions the motives of the Estate and other
creditors with respect to the enforcement of RSA 557:27 and the decision to
administer this Estate under the insolvency statutes. (Brief, pp. 20-24). Ms.
Gangi’s argument ignores her prior representation and agreement in the Probate
Court that the Estate should be treated as insolvent. (Appendix, p. 13, ¶13);(See
also August 6, 2009 Transcript, pp.29-30). If there were sufficient assets to treat
13
this Estate as solvent, Ms. Gangi’s child support claim would be allowed to age
18, but it would still not be funded as debts have priority over child support in a
solvent estate and in this case the Estate debts exceed the available assets.
(Appendix, p. 90).
It appears that Ms. Gangi may have agreed, in part, to designate the Estate
as insolvent because debts are not given priority under this statutory scheme and
instead debts and child support to age 7 are paid concurrent. Compare RSA 554:19
(IV), (V) and RSA 557:27. Ms. Gangi is not, however, entitled to cherry pick
select provisions from both the insolvent and solvent statutes to best serve her
interests. Having elected to proceed under the insolvency statutes, Ms. Gangi is
bound by the age classification set forth in RSA 557:27 and if her son had been
under the age of 7 she would have enjoyed the benefit of having support paid
concurrent with other debts of the Estate. Ms. Gangi’s accusations concerning the
Estate’s motives are unfounded,2 given her assent to the insolvency designation.
Once that decision was made, the Estate was obligated under existing law to seek
dismissal of the child support claim, to preserve assets for the decedent’s minor
who is entitled to any residue after all allowed claims. RSA 557:27.
2 The trial court previously admonished the parties to avoid the type of personal attacks attributed by Ms. Gangi to the Estate and other creditors in her brief at pages 20-24. (August 6, 2009 Transcript, pp. 22, 38).
14
II. The Treatment of Child Support Obligations in RSA 557:27 and 554:19 Do Not Involve Similarly Situated Children and Thus the Age Restriction in 557:27 is Not Unconstitutional.
Child support is recognized as a preferred claim from ages 1-18 in a solvent
estate and ages 1-7 in an insolvent estate. Compare RSA 554:19 and RSA 557:27.
Ms. Gangi argues that the shorter duration classification allowed against an
insolvent estate is unconstitutional under the equal protection clause. “Equal
protection, however, does not demand that a statute apply equally to all persons or
require things which are different in fact to be treated in law as though they were
the same.” N. Country Envtl. Servs. v. State of N.H., 157 N.H. 15 at 25 (2008).
This Court has repeatedly held that the equal protection clause guarantee does not
forbid classifications. Rather, the equal protection guarantee requires that this
Court examine the rights affected and the purpose and scope of the classification.
Id.
The first question in an equal protection analysis is whether the challenged
State action “treats similarly situated persons differently.” Appeal of Brady, 145
N.H. 308, 312 (2000). In Brady this Court reviewed a constitutional challenge to
RSA 74:7-a that distinguished between taxpayers that filed inventory forms and
those who did not. This Court rejected the Petitioner’s constitutional challenge as
it concluded the State classifications treated all taxpayers who had completed their
forms the same and all who had not were likewise treated the same.
In N. Country Envtl. Servs. v. State of N.H., 157 N.H. 15 (2008) NCES
challenged the constitutionality of a tax exemption in RSA 72:12-a. That statute
15
provided property tax exemptions for pollution control facilities unless they were
located at a landfill site. This Court rejected NCES’s challenge in part, because
the tax classification was based upon the difference in land use, which was a
legitimate basis for different tax treatment. This Court further observed that the
statute treated all landfill properties the same; it treated all pollution control
facilities the same and all properties with both a pollution control facility and a
landfill were treated the same.
Just as the classification in NCES was not an unconstitutional classification
because similarly situated groups were not treated differently, the classification in
RSA 557:27 when compared to RSA 554:19 does not treat similarly situated
individuals differently. Rather, the distinction is based upon whether the estate is
solvent or insolvent. An impermissible classification of similarly situated groups
was presented by a proposed bill, which limited defendants in sexual assault cases
from bringing civil actions against their victims. In Opinion of the Justices
(Limitation on Civil Actions), 137 N.H. 260 (1993) this Court concluded the bill
“divides the class of plaintiffs with civil actions into those plaintiffs who are also
defendants accused of sexual assault and those plaintiffs who are not also
defendants accused of sexual assault, and prohibits the former from bringing civil
actions during the pendency of the criminal matter. In this manner the bill treats
similarly situated plaintiffs differently.” 137 N.H. at 266.
Ms. Gangi’s reliance upon RSA 554:19 in support of her constitutional
challenge to RSA 557:27 fails because the financial capacities of the estates are
16
different depending upon whether the estate has been deemed solvent or insolvent
and thus, the disparate classifications are not being applied to similarly situated
individuals. It is well recognized that the very purpose for having a different
statutory scheme with respect to insolvent estates is that they are not the same as
solvent estates. See generally Leila Dal Pos, N.H. Bar Journal, Creditor Issues &
Estate Administration, 16 (Fall 2009). An insolvent estate means there are
insufficient assets to pay all of the outstanding bills, which means some creditor is
going to go without payment. See generally In re Estate of Bennett, 149 N.H. 496
(2003). In contrast, it is anticipated that all creditors will be paid in a solvent
estate and thus, the Legislature had more flexibility when establishing the priority
schedule applicable to it. See generally Hirst v. Dugan, 136 N.H. 5 (1992).
III. The Classifications Among Creditors Recognized in RSA 557:27 is Rational Given the Unavailability of Funds Sufficient to Pay all Claims.
Ms. Gangi also challenges the classification within RSA 557:27 with
respect to children under the age of seven, who are entitled to receive child
support from an insolvent estate on a preferred basis to the age of seven and those
beyond the age of seven. This classification is applied to similarly situated
individuals, in that it includes all children seeking child support from an insolvent
estate. Ms. Gangi maintains that the duration limitation in RSA 557:27 violates
the equal protection rights under the State and Federal Constitutions. (Brief, p. 23).
As recognized by the trial court the State Constitution provides the same level of
17
protection as the Federal Constitution in the area of equal protection and thus this
court may limit its analysis to the State Constitution. (Appendix, p. 6, citing
LeClair v. LeClair, 137 N.H. 213, 221-22 (1993)(superseded by statute on
unrelated issue)). Ms. Gangi does not challenge this finding on appeal and has
thus waived her right to further review under the Federal Constitution.
The second step in analyzing an equal protection challenge requires this
Court to determine the appropriate standard under which it will review the
challenged statute. In re Sandra H. 150 N.H. 634 (2004). The trial court applied
the rational basis standard in its review of RSA 557:27 as the insolvent estate age
classifications did not involve a suspect class such as race, creed or color and the
court found that the right to receive child support was not a fundamental right.
(Appendix, p. 7)(citing Estate of Robitaille v. N.H. Dep’t. of Rev. Admin., 149
N.H. 595, 596 (2003)). Ms. Gagni argues on appeal that this Court should apply
intermediate scrutiny in its review of the statute because the right being asserted is
an important substantive right and she implies that age is a suspect class.
(Appendix, p.22). The trial court rejected intermediate scrutiny as the right to
child support has been denied to numerous children upon the death of the obligor
and thus, it cannot be characterized as a fundamental right or a substantive right
guaranteed by the Constitution. See Hirst v. Dugan, 136 N.H. 5 (1992); Dupuis v.
Click, 135 N.H. 333 (1992); Stebbins v. Stebbins, 121 N.H. 1060 (1981);
Guggenheimer v. Guggenheimer, 99 N.H. 399 (1955). Likewise RSA 557:27’s
age classification does not trigger intermediate scrutiny review as this Court has
18
confirmed “age alone does not make a group of citizens a suspect class, and
therefore does not trigger a stricter review of the purpose and effect of the
classification in issue.” Grinnell v. State, 121 N.H. 823, 826 (1981); See also
Opinion of the Justices (Voting Age In Primary Elections II), 158 N.H. 661
(2009); State v. Deflorio, 128 N.H. 309 (1986).
Under the rational basis test, “[l]egislation is presumed to be valid and will
be sustained if the classification drawn by the statute is rationally related to a
legitimate State interest.” Estate of Robitaille, 149 N.H. at 596-97. “The party
challenging the legislation has the burden to prove that the classification is
arbitrary or without reasonable justification.” Id. at 597. The trial court found that
the plaintiff:
has not shown that the age distinction in RSA 557:27 is without a reasonable justification. The decision to limit child support to those under seven could represent a rational legislative judgment that, after some level of protection is afforded to the decedent’s most vulnerable children, the decedent’s remaining estate should pass as it would normally either under a will or pursuant to intestacy…. For example, a situation could arise where the decedent’s widow, even after receiving her temporary allowance, is facing extreme financial difficult due to the decedent’s death. The decedents’ estate has some assets, so the high-priority claims are satisfied and now there is a small fund that could go either to a child the decedent fathered in a prior relationship or to the widow, as the decedent provided in his will. If a child support award up to the age of 18 was allowed, there would be no funds remaining to pass under the decedent’s will, but if a smaller child support award was allowed, some money could pass to the widow. While the child would of course be deprived of support he or she most likely needed, or at least was entitled to under some preexisting obligation, the widow who is clearly in need would receive some additional funds.
(App. 8).
19
It is well settled law that “the party challenging the alleged statutory
classification ‘has the burden to prove that the classification is arbitrary or without
some reasonable justification’ and ‘to negative every conceivable basis which
might support the classification, whether or not the basis has a foundation on the
record.’” State v. Wamala, 158 N.H. 583, 594 (2009)(quotation omitted). In
determining whether allegedly disparate classification may or may not have
reasonable justification, this Court is not limited to justifications expressly
articulated by the Legislature. In other words, the Legislature’s actual purpose is
not relevant if this Court determines there is a conceivable justification for the
Legislature’s classification. Wamala involved a challenge over the unavailability
of individual voir dire in criminal cases, after that right had been given to civil
litigants. On appeal this Court recognized that the California Supreme Court had
restricted the availability of voir dire in criminal cases in part because of its
concern that the process might be abused during criminal jury selection. Id. at 595
(citing People v. Robinson, 124 P.3d 363 (2005)). This Court then noted,
“[r]egardless of whether preventing abuse of the jury selection process in criminal
cases was the legislature’s actual purpose….it is a conceivable justification for so
doing, and thus, constitutes a rational basis.” Wamala, 158 N.H. 583, 595 (2009).
The trial court found the legislative decision to limit the duration of child
support in an insolvent estate might reflect an intent to pass some residue by will
to the decedent’s spouse after providing a minimal amount of guaranteed child
support. Since this appeal involves neither a suspect class nor a fundamental right
20
this Court should not second-guess the legislature as to the wisdom or necessity
for the legislation. Instead, provided this Court is satisfied that there is a
conceivable justification for the insolvency preferred claim classifications it
should deny the petitioner’s equal protection challenge. Wamala, 158 N.H. 583,
595 (2009).
On appeal, it is Ms. Gangi’s burden to articulate why the justification
identified by the trial court is arbitrary and without reason. Ms. Gangi has failed to
sustain her burden. Instead, she points to the absence of legislative history
available to verify the legislature’s actual thought process when enacting the child
support duration classification. (Brief, pp. 25-26). As this Court noted in Wamala,
however, it is not necessary to confirm the actual legislative purpose behind the
classification in RSA 557:27 provided there is a conceivable justification for the
classification. Ms. Gangi has failed to articulate why preserving funds in an
insolvent estate for potential distribution under the will or intestacy is not
rationally related to a legitimate state purpose. Instead she argues that if this was
the legislature’s intent it should have “denied support to children of any age, not
only to those over age seven.” (Brief, p. 25). Whether the legislature could have
done more to preserve a residue for conveyance by will or intestacy does not rebut
the reasonableness of the objective, nor the rationality for the classification. See
eg. Winnisquam Reg. Sch. Dist v. Levine, 152 N.H. 537 (2005)(approving the
classification between those afforded protection under 8 year Statute of Repose).
21
Ms. Gangi’s implicit recognition that the Legislature could have eliminated
support for children as a preferred claim all together does not support her request
to enlarge the age duration from seven to eighteen. Instead it suggests that if the
age duration is declared to be arbitrary and without rational justification by this
Court the provision could and should be struck in its entirety since this Court has
recognized that child support can be extinguished at death. See Guggenheimer v.
Guggenheimer, 99 N.H. 399 (1955). The trial court referenced the legislature’s
failure to enact statutory protection to automatically classify child support
obligations as a charge against the Estate, as evidence of the gratuitous status of
such awards in the context of probate proceedings. (App. pp. 8-9). The trial court
properly found that the provision of support for “the decedent’s most vulnerable
children” those under the age of seven was consistent with the overall scheme of
the probate priority statutes and it would not “disturb how the legislature valued
the various claims that are made against the estates.” (App. pp. 8-9). This Court
should likewise defer to the legislative process, which is tasked with such policy
concerns, when there is a rational explanation for the age classification given the
inadequate assets available to satisfy all claims likely to be asserted against an
insolvent estate. Enforcing the age limitation secures preferred status for funding
payment to the decedent’s most vulnerable dependents, which is preferable to
striking down the statute and eliminating preferred status for all support orders.
Ms. Gangi also argues the Legislature’s failure to amend RSA 557:27 when
it amended RSA 554:19 to increase the duration of child support from 7 to 18
22
years was an oversight this Court should correct. (Brief, p. 27). Yet, this Court is
not a legislative body and is restricted in its review as to legislative action taken
not that, which might be or should have been taken. See generally, State v. Rix,
150 N.H. 131, 134 (2003). Moreover, current bills in the Legislature concerning
potential amendments to RSA 557:27 do not support the position Ms. Gangi
asserts. If the Legislature enacts Senate Bill 353, in its currant format, the
preferred claim status for “support and maintenance of minor children” in RSA
557 will be eliminated. (Appendix, p. 123).
The receipt of child support is a right that did not exist at common law. It
is a pure statutory right. As such, it is up to the Legislature, not this Court, to
determine the scope and parameters of that statutory right. This Court showed
similar restraint when addressing a more direct equal protection claim in the
context of the disparate treatment between men and women with respect to the
statutory cause of action for loss of consortium. Bromfield v. Seybolt Motors, Inc.,
109 N.H. 501 (1969). For many years, loss of consortium claims were limited to
husbands. In 1967, the law was amended to allow a similar cause of action for
wives. RSA 507:8-a. Prior to the effective date of that statute, Ms. Bromfield
brought suit and argued the limitation in the consortium statute violated her right
to equal protection under the State and Federal Constitution. This Court
acknowledged that the constitutional challenge was not frivolous, but refused “to
say that the contention reaches constitutional dimensions that are forbidden.” Id. at
503. This Court should likewise find that the Legislature’s decision to recognize
23
different durations of child support claims among competing claims asserted
against an insolvent estate does not reach a forbidden constitutional dimension.
Ms. Gangi erroneously argues that the seven year restriction within RSA
557:27 should not be applied to her claim for future child support because it
introduces “inappropriate considerations into the choice for administering an
estate as solvent or insolvent….[and]an administrator could pursue this choice for
the purpose of depriving a child of support which he would otherwise receive if
the estate were administered as solvent.” (Brief, p. 29). This argument ignores
Ms. Gangi’s assent to the insolvency proceedings in this case. (Appendix, p. 13,
¶13). It also improperly impugns the motives of the Administrator. Finally it
ignores the probate court’s review and acceptance of the insolvency designation,
not as a means to avoid child support, but rather as a recognition that the claims
advanced against the estate exceeded available assets. RSA 557.
In one of her last arguments on appeal, Ms. Gangi references comments
associated with the legislative debate to increase the duration of support
recognized as a preferred claim against a solvent estate. She notes that several
legislators remarked the seven-year limitation might hark back to days when
children entered the mills after the age of seven. Ms. Gangi argued that this
explanation as a means for expanding the duration of support in the context of a
solvent estate “make at least as much sense to extend the same consideration for
children able to receive support from an insolvent estate [because] children,
regardless of type of estate distribution, no longer go to work in the mills at age
24
eight.” (Brief, p. 27). Although Ms. Gangi is correct that child labor laws now
prevent such conduct, her reliance upon the discussion surrounding the solvent
estate statutory scheme does not apply to the insolvent estate statutory scheme.
The funds available under an insolvent estate are different than those available
under a solvent estate and as a result the legislature has the right and duty to
establish a different priority-ranking schedule in response to limited funds. That
economic reality is also reflected in the legislature’s decision to eliminate
preferred claim status for “amount paid for old age assistance or aid to the
permanently and totally disabled and, under certain circumstances, charges
pursuant to RSA 166:19” under RSA 554:19 (VI). (Compare RSA 554:19 and
RSA 557:22; 557:27).
CONCLUSION
For the reasons set forth above and those articulated by the Trial Court in
its October 5, 2009 Order this Court should affirm the Trial Court’s order
dismissing the Petitioner’s $167,000.00 future child support claim in the context
of this insolvent estate under RSA 557:27. Under RSA 557:27 the decedent’s
heir, will receive any residue of the estate in addition to social security survivor
benefits.
Respectfully submitted,
Estate of Richard G. Gangi By Its Attorneys,
25
WIGGIN & NOURIE, P.A. Date: By:____________________________ Doreen F. Connor, #421 PO Box 808 Manchester, NH 03105 (603) 669-2211
REQUEST FOR ORAL ARGUMENT
Pursuant to Supreme Court Rule 18, the Estate of Richard C. Gangi submits that the trial court’s summary judgment order should be affirmed as a matter of law without oral argument and without further depletion of Estate assets. In the event this Court decides that oral argument would assist the court, Attorney Doreen F. Connor will represent the Estate of Richard C. Gangi’s interests.
Doreen F. Connor, #421
CERTIFICATE OF SERVICE
Pursuant to Supreme Court Rule 16, I hereby certify on this day two copies of the foregoing have been mailed, postage prepaid, to all counsel of records. Doreen F. Connor, #421 01140136.DOC