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

i

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

ii

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

iii

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

1

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

2

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

3

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

4

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

5

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

7

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).

8

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

9

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