THE STATE OF NEW HAMPSHIRE

SUPREME COURT

CASE NO. 2009-0868

SHEILA GANGI, INDIVIDUALLY AND AS M / N / F OF RICHARD C. GANGI, III

V.

ESTATE OF RICHARD C. GANGI; AND RELATED CASES

BRIEF FOR SHEILA GANGI, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF RICHARD C. GANGI, III

APPEAL PURSUANT TO RULE 7 FROM THE HILLSBOROUGH COUNTY SUPERIOR COURT, SOUTHERN DISTRICT

On the Brief LUCINDA HOPKINS, NH Bar No. 1193 Oral Argument, 15 minutes RANDALL E. WILBERT, NH Bar No. 2744

Law Offices of Randall E. Wilbert, PLLC One Indian Head Plaza, Suite 510 Nashua, New Hampshire 03060-3442 603.889.8443 Counsel for Plaintiffs / Appellants,

Sheila Gangi, Individually and as Mother and Next Friend of Richard C. Gangi, III

(15 minutes)

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………..…………………………i

TABLE OF AUTHORITIES…………………………………………….………………..ii-iii

QUESTIONS PRESENTED FOR REVIEW……………………………………………….iv

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED…………………...v

STATEMENT OF THE CASE AND STATEMENT OF FACTS………………………1-4

SUMMARY OF ARGUMENTS……………………………………………………..……5-6

ARGUMENTS

I. The Decedent's Stipulation in His Divorce Decree that His Child Support Obligation Would Be a Charge Against His Estate is a Just Debt and Not a Lesser in Priority Support and Maintenance Distribution……………..…1-23

A. The Trial Court's Decision Based on Dicta of a Case Lacking in Precedential Value Failed to Accord with Accepted Legal Authority……………………………………..……………………………1-8

B. N.H. Case Law Holds that a Divorce Decree Stipulation is a Contract and Judgment, Entitled to Priority as a Just Debt of the Estate...…8-11

C. Trial Court's Finding Erodes Enforceability of Divorce Decrees..11-12

D. Case Law from Other Jurisdictions Enforcing Divorce Provisions as Just Debts Against an Estate………………………………………….12-15

E. Misconstruing the Claim Against the Estate as One for Child Support Leads to Nonsensical Results……………...………………15-17

F. What Legislative History Reveals about the Probate Term, "Support" ……………………………………………...……………………………17-20

G. Treating Father's Agreement to Have His Child Support Obligations Lesser in Priority than Other Just Debts of the Estate Has Serious,

Detrimental Consequences to Child…………………………...……20-23

II. The Probate Insolvency Distribution Statute, RSA 557:27, Denies Equal Protection to Children Over Age Seven in Violation of the State and Federal Constitutions…………………………………………………...…23-31

CONCLUSION AND PRAYER FOR RELIEF………………….……………….…………32

REQUEST FOR ORAL ARGUMENT……………………………………………………...32

CERTIFICATION OF DELIVERY….……………………………………………………...32

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TABLE OF AUTHORITIES

New Hampshire Cases In the Matter of Angley-Cook, 151 N.H. 257 (2004) ……………………………………..…16

Alonzi v. Northeast Generation Services Co., 156 N.H. 656 (2008) ………………………..25

Czumak V. N.H. Div. of Development Servs., 155 N.H 368 (2007)………………………….11

Dolloff v. Dolloff, 67 N.H. 512 (1893) …………………………………………………...9, 10

Dupuis v. Click, 135 N.H. 333 (1992)…………………………………………………...10, 12

Estate of Robitaille v. N.H. Dep't of Revenue Administration, 149 N.H. 595 (2003) …...29, 30

Guggenheimer v Guggenheimer, 99 N.H. 399 (1955)………………………………………..9

Hirst v, Dugan, 136 N.H. 5 (1992)………………………………………………7, 8, 9, 11, 16

McGrath v. McGrath, 107 N.H. 242 (1966)…………………………………………………11

Miller v. Miller, 133 N.H. 587(1990) …………………………………………………….....11

Pindar v. Pindar, 109 N.H. 76 (1968) ………………………………………………………11

Reynolds v Chase, 87 N.H. 227 (1935) …………………………………………..…….… 8, 9

In re Sandra H., 150 N.H. 634 (2004) ……………………………………….…...…23, 25, 27

Soraghan v. Mt. Cranmore Ski Resort, 152 N.H. 399 (2005) ………….……………………17

Souhegan Nat. Bank v. Wallace, 60 N.H. 354 (1880) …………………….. …………………2

In re State and Estate of Crabtree, 155 N.H. 565 (2007) …………………………………...12

State v. Chrisicos, No. 2009-062 (decided November 17, 2009) ………………………...…29

Stebbins v. Stebbins, 121 N.H. 1060 (1982) …………………………………….…………..10

Stritch v. Stritch, 106 N.H. 409 (1965) ………………………………………………….10, 11

In re Taber-McCarthy, N.H. Supreme Court, No. 2009-180, (decided April 9, 2010)……...11

Verizon New England v. City of Rochester, 156 N.H. 624 (2007) ………………………….28

Young v. Benton, 70 N.H. 268 (1899)…………………………………………………………9

Cases from Other Jurisdictions

Black v. Walker, 295 N.J. Super. 244 (1996)………………………………………………...14

Brown v. Bd. of Education, 347 U.S. 483 (1954) …………………………………………...24

Emerick on Behalf of Howley v. Sanchez, 547 N.W. 2d 109 (Minn.App. 1996) ……………14

In the Matter of Estate of Barnes, 170 Wis.2d 1 (Ct.App.1992) ……………………………14

In re Estate of Hereford, 162 W.Va. 477 (1978) ……………………………………………15

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Garcia v. Gonzalez, 654 So.2d 1064 (Fla.App. 3 Dist. 1995) …………………..14, 15, 21, 22

In re Gault, 387 U.S. 1 (1967) ………………………………………………………………24

Graham v. Richardson, 403 U.S 356 (1971)……………………………………………...…30

Grotsky v. Grotsky, 58 N.J. 354, 357 (1971) ……………………………………………….14

Hutchings v. Bates, 406 S.W.2d 419 (Tex. 1966) ………………………………………12, 13

Russell v. Fulton Nat. Bank, 247 Ga. 556 (1981) ……………….………………………..…13

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) ………….…25, 30

Simpson v. Simpson, 108 So.2d 632 (Fla. 2d DCA 1959) ……………………………....14, 15

Trimble v. Gordon, 430 U.S. 762 (1977) ……………………………………………………29

United States v. Carolene Products, 304 U.S. 144 (1938) ………………………………….30

Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 (1972) ………………………...30, 31

New Hampshire Statutes

RSA 161-B …………………………………………………………………………………..21

RSA 169-C:3, XIX (b) ………………………………………………………………………21

RSA 170-C:5, II ……………………………………………………………………………..21

RSA 458-C …………………………………………………………………………...….16, 21

RSA 461-A:14 ………………………………………………………………………………28

RSA 554:19 ……………………………………………………………………….3, 19, 26, 27

RSA 554:19, V ………………………………………………………………………………..7

RSA 557 ……………………………………………………………………………………..27

RSA 557:1 …………………………………………………………………………………...29

RSA 557:27 ……………………………………………………………….3, 18, 23, 24, 26, 31

RSA 558 …………………………………………………………………………..…………..2

RSA 558:2 …………………………………………………………………………………….2

RSA 558:6 …………………………………………………………………………………….2

RSA 558:8 …………………………………………………………………………………….2

RSA 558:13 …………………………………………………………………………………...2

Other Authority

U.S. Bankruptcy Code, Title 11, Section 523(a)(5) …………………………...…………….21

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QUESTIONS PRESENTED FOR REVIEW

I. Whether a deceased parent's stipulation in his divorce decree that his

child support obligation would be a charge against his estate is

enforceable as a contract and judgment, thus is a just debt of the estate and

not a lesser in priority claim for support and maintenance of minor

children. T.1 25-36, Apx.2

II. Whether the probate insolvency statute, RSA 557:27, that support to

children is provided only to children under seven years of age while

distribution under a solvency statute provides support to children until

they reach 18 years of age violates the state and federal constitutional

guarantee of equal protection. T.25-36, Apx.1-41, et passim.

1-41, et passim.

1 "Apx." refers to the appellants' appendix and the numbers following refer to the page

numbers of the appendix. "T" refers to the transcript of the hearing on August 6, 2009; the numbers following "T." refer

to the page of the transcript. "L" refers to the lines in the transcript the numbers following "L" refer the lines numbered on

each page of the transcript. 2 Documents in the appendix may be abbreviated from the form presented to the trial court. For example, the Motion for Child Support Obligation as Chargeable against the Estate attached

the Final Divorce Decree and the Uniform Support Order to the trial court filing. As this information is documented elsewhere, either in the transcript or the appendix, redundant and non-relevant portions of the trial court documents have been omitted.

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TEXT OF N.H. CONSTITUTION AND STATUTES INVOLVED

N.H. Constitution, Part I, Article 14 Every subject of this state is entitled to a certain remedy, by having recourse

to the laws, for all injuries he may receive in his person, property, or

character; to obtain right and justice freely, without being obliged to purchase

it; completely and without any denial; promptly, and without delay;

conformably to the laws.

N.H. RSA 557:27 Distribution to Legatees, etc. (Insolvent Estate) If anything remains after payment of the preferred claims, the debts due from

the estate and for the support of the children, if any under seven years of age,

such residue shall be distributed among the legatees or heirs according to

law.

N.H. RSA 554:19 Priority of Charges (Solvent Estate) The estate of every person deceased shall be chargeable with the following.

To the Extent that funds are available, these charges shall be paid in the

following priority:

I. The just expenses of the administration of the estate.

II. The necessary expenses of the funeral and burial of the deceased.

III. A reasonable allowance to the surviving spouse, as by law provided.

IV. The just debts owed by the deceased, including the necessary expenses for the last illness of the deceased.

V. The support and maintenance of minor children of the deceased until they reach 18 years of age.

VI. The total amount paid for old age assistance or aid to the permanently and totally disabled and, under certain circumstances, charges pursuant to RSA 166:19.

VII. The legacies given by the will of the deceased.

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STATEMENT OF THE CASE AND STATEMENT OF FACTS

Richard C. Gangi died on May 26, 2007, at the age of 44, without leaving a known will.

His son and sole heir, Richard C. Gangi, III ["Richey"], was nine years old at the time of his

father's death. Richey's mother, Sheila Gangi, and his father had divorced in 2001. When

Richey's parents divorced, they filed a permanent stipulation that the provisions of their decree

would be a "charge against the estate of the party to which the obligations accrue." The parties'

agreement was adopted as a final decree on January 9, 2001. Apx. 52-58. Pursuant to the decree

the father had a child support obligation, which he steadfastly paid. Apx. 59-62.

When the father's intestate estate was probated, the mother filed a "Motion for Child

Support Obligation as Chargeable Against the Estate." Apx. 50-51. The court-appointed

administrator, in his disposition of claims, concluded, "I find the present value of the support

order to be $167,000 and approve that sum." Apx. 62.

The administrator based this amount on Richard Gangi's original child support

obligation of $1,961 per month. Although verifying that the decedent deposited at least $3,100

a month into Ms. Gangi's account for the 15 months before his death, the administrator

disallowed Ms. Gangi's claim for a de facto modification to $3,200 a month for child support.

While Ms. Gangi has not contested the amount based on $1,961, for the purposes of this appeal,

the ongoing increased amounts are relevant to Richard Gangi's desire and intent to have his son

and son's mother near where he lived, for his son to stay in his home, in the same town, to

attend the same school, and for his son's mother to be home to raise his son. Richard Gangi's

actions went beyond the agreement in his stipulated decree, as evidenced by the administrator's

assessment of Ms. Gangi's admission "that whatever bills needed to be paid to maintain her and

her children (one of a prior marriage) were paid by decedent…indicates the money being paid

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was much more than support for decedent's son, but also for SG, her child, and possibly other

items…." Id. at Apx. 62.

The estate, although having substantial assets, was administered as insolvent. At least

eleven claims were filed against it. The decedent's brother, Richey's paternal uncle, as an

individual or as officer of corporations, filed at least five claims totaling at least $301,227.27.

Apx. 73-85.

The insolvency commissioner appointed to review the claims allowed the mother's

claim for child support in the amount of $167,000.00 as a preferred claim after other preferred

claims (commissioner's and administrator's fees and funeral expenses in the amount of

$22,939.00 for which the paternal family claimed reimbursement). He allowed five of the

uncle's claims as general claims in the total amount of $266,988.27. Apx. 86-93.

The administrator appealed the Commissioner's Warrant and Report allowing Ms.

Gangi's claim. Appeals from commissioner's allowances to superior court are pursuant to RSA

558. Administrators may appeal. RSA 558:6. Dissatisfied creditors may appeal. RSA 558:2.

Heirs may appeal. RSA 558:8. The appeals are treated as de novo. RSA 558:13, Souhegan Nat.

Bank v. Wallace, 60 N.H. 354 (1880).

The mother filed a declaration of heir as mother and next friend of her son as sole heir

to the estate and individually as a judgment creditor in response to the administrator's appeal.

Apx. 37-41. The uncle also appealed allowance of Ms. Gangi's claim.

Additionally, the administrator appealed the commissioner’s allowance of the uncle's

claims for $100,000.00, $80,797.00, and $77,023.94. Apx. 42-44. Ms. Gangi, individually and

on behalf of her son, also appealed these claims. Apx. 45-49. All appealed claims were

3

consolidated, and the request for a jury trial was granted. The trial on the merits scheduled for

the week of July 26, 2010, has been continued pending this appeal.

During the de novo appeal the administrator moved to dismiss the mother's and child's

claims against the estate as a matter of law, maintaining that the decedent’s stipulated decree

was not equal to other “just debts,” but was relegated by the word, “support,” in the probate

statutes to lesser in priority. Priority of Charges, RSA 554:19, provides that charges against an

estate are paid in the following priority:

I. just administration expenses;

II. necessary funeral and burial expenses;

III. reasonable allowance to surviving spouse;

IV. just debts;

V. "support and maintenance of minor children of deceased until they reach 18

years of age;"

VI. amount paid for assistance or aid, charges pursuant to RSA 166:19; and

VII. legacies.

The administrator further contended that the insolvency statute's prohibition of support

to children over age seven, precluded Ms. Gangi and Richey, as a matter of law, their claims.

Under insolvent estates, Distribution to Legatees, RSA 557:27 provides that if anything

remains after preferred claims, debts due, "and for the support of the children, if any under

seven years of age," the residue then is distributed to legatees or heirs. Recognizing the

insolvency statute's discrimination, the administrator nevertheless submitted, "that this different

treatment does not violate an individual's equal protection under the State and Federal

Constitutions." Apx. 11-14 (see specifically, paragraphs 14 and 21). Loren H. Rosson,

administrator of Richard Gangi's estate, also has been appointed guardian over Richey's estate.

4

The uncle joined the administrator in his motion to dismiss the mother's and child's

claims. The court, after hearing, granted the administrator's motion to dismiss. (The Honorable

James J. Barry, Jr., presiding.) This appeal follows.

5

SUMMARY OF ARGUMENTS

Agreeing that divorce obligations shall be a charge against one’s estate is part of New

Hampshire practice. So much so that the provision is included in the final divorce decree form

of the Judicial Branch, NHJB-2701-FS: "The terms of this decree shall be a charge against each

party's estate."

The nature of a claim for child support against an estate has not been specifically

decided in New Hampshire. The trial court’s relegation of the divorce decree's provision

charging child support against an estate to lesser in priority than a just debt carries significant

consequences, not just for the parties of this appeal, but for all those whose divorce decrees

provide that their obligations shall be a charge against their estate. Clarifying this area of the

law would provide guidance and certainty, both for those undergoing divorce and for those

involved in probate administration.

Further, as this case exemplifies, treating a decedent’s voluntary, expressed intention

that his child support obligations should be a charge against his estate as less deserving than

other claims against his estate stands to seriously deprive children of the support their parent

intended them to have in the event of death. The trial court's ruling is against the weight of

legal authority that upholds the enforceability of stipulations in divorce decrees a as contracts

and judgments. It flies in the face of public policy promoting the obligation of child support as

a tenet of our society.

The appellants maintain that the decedent’s divorce decree providing that his child

support obligations should be a charge against his estate is a just debt deserving no less

consideration than his other contractual obligations. The trial court’s interpretation that the

decedent’s child support obligation is lesser in priority under the probate statute’s support and

6

maintenance for children provision is error, both in an analysis of the statutes and legal

authority.

In addition to delegating the child support obligation to lesser in priority than other just

debts, to then preclude a child from any right to support because he is over age seven is blatant,

impermissible discrimination in violation of equal protection under the state and federal

constitutions. Basing a denial of a support to a child, age nine, on an insolvency statute

unchanged from an age when children went to work in the mills at age eight, is anachronistic. It

impermissibly discriminates against a child, who as this case illustrates, has no control over his

date of birth and no control over a decision to probate his father’s estate as insolvent rather than

solvent, where, if administered as solvent, he would be entitled to support until age eighteen.

Children, vulnerable and insular, deserve special judicial consideration when discriminated

against, not a tacit, insufficient rationalization that legislation—never mind its irrelevancy and

obsolescence—must make some sense. The trial court, in imposing the discrimination, was

woefully inadequate in explaining any justification for discriminating against a nine-year-old

child.

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ARGUMENT

I. The Decedent's Stipulation in His Divorce Decree that His Child Support Obligation Would be a Charge Against His Estate Is a Just Debt and Not a Lesser in Priority Support and Maintenance Distribution

A. The Trial Court’s Decision Based on Dicta of a Case Lacking in

Precedential Value Failed to Accord with Accepted Legal Authority

No factual disputes exist. No one questions that the decedent agreed that his child

support obligations would be a charge against his estate and that the divorce court5

The dispute centers on the applicability of the divorce decree's provision that the

decedent's child support obligation would be a charge against his estate as well as the meaning

of the term "support" in the probate statutes. The trial court, relying on interpretations of the

administrator and uncle, rejected the mother's position that her claim for child support was

enforceable against the estate in the same manner as other judgments or contracts.

officially

adopted this stipulation as a decree. No one disputes the finding that the mother’s claim for

child support based on the divorce decree amounts to $167,000.00. Apx. 59-66, Apx. 1-9.

The trial court, finding "some help" from “dicta” in an opinion with minimal

precedential value, based its decision on Hirst v, Dugan, 136 N.H. 5 (1992). Apx. 4-5. In Hirst

a child was born after his father died; his parents were not married to one another. The mother

filed a claim against the father’s estate pursuant to RSA 554:19, V. that provides for “support

and maintenance” of children. Hirst rejected the mother’s argument that RSA 554:19, V.,

conferred substantive rights independent of a preexisting obligation. "We hold that there is no

posthumous support obligation on a parent's estate without a preexisting order to that effect."

5 The Hillsborough County Superior Court had jurisdiction over both the divorce proceedings

(Northern District) and the appeal de novo proceedings from probate court (Southern District). To distinguish, the court hearing the divorce is referred to as the "divorce" court; the court hearing the appeal de novo is referred to as the "trial" court.

8

Id. at 6. Then Hirst hypothesized that, "If" a court made an order binding on an estate, children

would become judgment creditors and paragraph V. "would operate to create a charge ranking

fifth in priority." Hirst at 6-8. Based on this dicta, the trial court concluded Ms. Gangi's claim is

not entitled to priority as a just debt. Apx. 1-9.

Hirst pales in the face of authority more on point and more in keeping with legal

principles that uphold the enforceability of contracts, judgments, and testamentary intentions.

Yet the trial court, citing only Hirst, failed to reconcile other authority upholding contracts for

support as just debts of an estate. A critical distinction from Hirst is that Richard Gangi

intended and voluntarily, knowingly, and intelligently agreed as part of an enforceable

judgment to have his child support obligation be a charge against his estate. Presumably if there

was an issue with the execution or intent of Richard Gangi's agreement this would have been

raised, since legal counsel for the decedent and for the uncle are one and the same.

Reconciling the legal authority is challenging, but to view Ms. Gangi’s claim for child

support as interchangeable with the probate statute’s term "support" amounts to error. Using

Hirst’s dicta to find, as did the administrator and the trial court, that the claim is not a just debt

of the estate, but is the lesser priority of “support and maintenance,” is inadequate. This

analysis fails to account for conflicts, inconsistencies and discrepancies with other cases more

on point and more in keeping with N.H. legal authority.

B. N.H. Case Law Holds That A Divorce Decree Stipulation is a Contract and Judgment, Entitled to Priority as a Just Debt of the Estate

In conflict with Hirst is Reynolds v Chase, 87 N.H. 227 (1935). Reynolds rejected the

contention that a contract for support has less validity or is different than other types of

contracts against an estate. While Reynolds’ support agreement was not one for child support,

the reasoning for enforcing a contract for support as a just debt of an estate is the same. As with

9

Ms. Gangi's claim, the claim in Reynolds was based on an agreement, during the lifetime of the

decedent, that his estate would provide support. Id. at 228-230. Reynolds found that the

agreement was contractual, not testamentary. "One by contract may obligate his estate to make

transfers or payments without thereby taking testamentary action or agreeing to do so." Id. at

230.

Also, conflicting with Hirst’s dicta is Young v. Benton, 70 N.H. 268 (1899), that a

clause in a will, "I charge the estate" clearly meant that the decedent wanted that particular

disposition to take precedence in priority. "'I charge the estate,' whether construed by strict

rules of law or according to common understanding, is expressive of an intent to create a

priority. It can have no other meaning.'" Id. at 268.

Further, Guggenheimer v Guggenheimer, 99 N.H. 399, 402-403, (1955) stated that the

probate statute providing for support and maintenance of minor children “applies to the estate

of every father whether married or divorced and was not intended to limit the authority of the

court in divorce proceedings.” Guggenheimer rejected the argument that a divorce order

requiring a fund for children (through life insurance or otherwise) in the event of death destroys

one's right of testamentary disposition. Guggenheimer added, “the children become judgment

creditors by force of the decree for support and this is a contingency that rightfully limits any

testamentary disposition.” Id. Guggenheimer did not distinguish the priority for “judgment

creditors;” did not mention that the decree for support’s enforceability against the estate was

lesser in priority to that of other just debts.

Guggenheimer, in pointing out that the probate statute’s charge for “support and

maintenance” did not limit a divorce court’s authority, looked to Dolloff v. Dolloff, 67 N.H.

512 (1893), which found that a decedent’s estate had a “preexisting natural, legal, or statutory

10

duty to support” his children, notwithstanding a divorce from the children’s mother. In Dolloff

the only issue was liability; the form of the action was not considered. Id. at 514. From Dolloff

it does not appear that a preexisting child support order was part of the divorce decree. Id.

Stritch v. Stritch, 106 N.H. 409 (1965) held that weekly alimony payments for a fixed

term of years “with no condition by which they should terminate upon the death of the husband

or for other reason,” were binding upon the decedent’s estate. Id. at 410-411. The child support

obligations for Richey parallel the support obligations in Stritch. They are ascertainable

payments for a fixed number of years; they amount to $167,000.00.

Distinguishable is Dupuis v. Click, 135 N.H. 333 (1992), where both alimony and

college expenses not ascertainable in amount nor payable within a definite period were not

chargeable against an estate. Noteworthy is Dupuis’s observation that, “[e]ither party could

have suggested a clause in the divorce decree providing for the payments to continue upon

either spouse’s death, yet no such clause was requested or included in the decree.” Id. at 336.

In Richey’s case, just such a clause exists. That Richey’s father intended to have his

child support obligations charged against his estate is without doubt.

Citing Stebbins v. Stebbins, 121 N.H. 1060 (1982), Dupuis made a basic distinction

between support payments and property settlements such as that in Stritch. “Under New

Hampshire law, a property settlement consists of either a final distribution of a sum of money,

or monetary payments which are ascertainable in amount and payable within a definite

period.” [Emphasis in original.] Dupuis, citing Stebbins at 1063.

The court and administrator failed to address and appreciate that the mother’s 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. The

11

trial court, looking only to Hirst’s dicta, failed to address Stritch’s analysis that an ascertainable

support obligation for a definite period in a divorce decree operates as a property settlement

(distinguishable from support) binding upon an estate.

C. Trial Court’s Finding Erodes Enforceability of Divorce Decrees The trial court’s treatment of Richard Gangi’s divorce stipulation undermines and

erodes decades of countless provisions in divorce decrees consistently accorded weight as

contracts and judgments. A stipulated agreement is contractual in nature, and therefore, is

governed by contract rules. In re Taber-McCarthy, N.H. Supreme Court, No. 2009-180,

(decided April 9, 2010), citing Czumak V. N.H. Div. of Development Servs., 155 N.H 368, 373

(2007).

“It is common for parties in a divorce proceeding to enter into a stipulated agreement

regarding child support, alimony and the division of property.” Miller v. Miller, 133 N.H. 587,

590 (1990). Where “[t]he language of the agreement clearly and unambiguously reflects the

intent of the parties,” the spouse was bound by his stipulation not to partition the marital

property. Id. at 590-591. Marriage and employment did not terminate the obvious intention of

the parties that child support would continue until the age of twenty-one or completion of

schooling, whichever was later. Pindar v. Pindar, 109 N.H. 76, 77 (1968). See, also, McGrath

v. McGrath, 107 N.H. 242 (1966) upholding a contractual agreement providing that upon death,

the debt would be paid in full. "It is as important that contractual undertakings be upheld as it is

to demand a clear demonstration of testamentary intent. 'In any event the two are not the

same.'" Id. at 245. [Citation omitted.]

Construing Richard Gangi’s agreement under probate support provisions fails to

sufficiently delineate or justify why his contract and judgment is less deserving than other

12

contracts and judgments upheld as enforceable against estates. Compare In re State and Estate

of Crabtree, 155 N.H. 565 (2007), finding that a decedent’s child support arrearages are just

debts owed by the estate. Crabtree stated that if a lien on the decedent’s assets was lawful it

was “subject, of course, to any claims the division might make as a creditor of the estate….” Id.

at 573 . The distinction between a child support arrearage as a just debt of the estate and a

child support obligation chargeable against the estate as “support and maintenance for the

infant children,” lesser in priority, is elusive, at best.

D. Case Law from Other Jurisdictions Enforcing Divorce Provisions as Just Debts Against an Estate

At common law the obligation of a parent to support minor children terminated with

death. Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex. 1966), referring to Am.Jur. Parent and

Child, section 40, 67 C.J.S. Parent and Child, section 15. “[U]nless 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.” Dupuis, supra. at 335.

The critical qualifier is “unless otherwise provided.” Other jurisdictions, as does New

Hampshire, hold that divorce stipulations are contracts. Where a divorce agreement provides

for child support that extends beyond a parent’s life, they have looked to contract principles.

“In a case like the present, however, where the duty to make support payments arises

from an agreement of the parties, their rights and obligations in that respect are governed

largely by the rules relating to contracts.” Id. In Hutchings the decedent’s will directed that his

entire estate go to his second wife and that his first wife receive none of his property. The

divorce settlement provided for support of the children in ascertainable amounts to their age of

18. It did not provide (as Richard Gangi did) that the divorce judgment would bind the estate.

Id. at 420-421.

13

Hutchings, discussing that “jurisdictions have expressed divergent views” (referring to

annotation, 18 A.L.R. 2d 1126), concluded, “it seems to us that our courts are more likely to

carry out the intention of the parties and achieve just results if they adhere to basic principles of

contract law.” Id. at 421. “[W]here the contract and judgment provide for periodic support

payments to be made until the occurrence of a specified event the obligor’s estate is responsible

for installments accruing after his death,” Hutchings held, “unless it fairly appears from other

stipulations or the surrounding circumstances that it was intended for the obligation to

terminate upon death.” Hutchings—without an explicit agreement binding the estate such as

Richard Gangi’s—found the estate responsible for support payments accruing after parent’s

death. Id. at 422.

As with Hutchings, in Russell v. Fulton Nat. Bank, 247 Ga. 556, 556 (1981), “the

consent order did not include a provision specifically addressing the rights of the parties in case

of the decedent’s death.” Even without this provision, Russell found that the decedent, who

agreed as part of his divorce to assume support obligations for his minor child until a specific

occurrence (age 21, marriage, death, or self-supporting) “voluntarily assumed a support

obligation which exceeded his legal duty.” Id. at 558. Pointing out that, “contracts in settlement

of claims for alimony and support of minor children stand upon the basis of other contracts,

Russell observed that in construing such contracts, “the intention of the parties should be

arrived at and given effect.” Id. “Construing the consent order as a whole, it is clear that the

father intended to provide for his child after his death.” Russell further noted, “’If it was

intended that the contract would terminate upon the death of the husband, it should have so

stated. Id. [Citation omitted.]

14

See also, In the Matter of Estate of Barnes, 170 Wis.2d 1 (Ct.App.1992), rejecting the

estate’s argument that divorce stipulations incorporated into a final judgment cannot be

enforced on a contract theory. “The argument lacks merit. Judgments are construed the same

way as contracts and, upon construction, are enforced in the same way as contracts.” Barnes at

6. (Barnes reversed the adult-children’s claims finding that estate planning for the purpose of

creating a property benefit for adult children cannot be done through a divorce decree. Id. at 13.

This fact pattern is not at issue here since Richey is a minor child.)

Black v. Walker, 295 N.J. Super. 244 (1996), found that the probate court had equitable

discretion to order a deceased parent’s estate to contribute toward a child’s college costs. Citing

Grotsky v. Grotsky, 58 N.J. 354, 357 (1971), the court, referring to out-of-state decisions under

comparable statutory provisions, observed, “they are not uniform but many of them and those

most persuasive to us broadly recognize the court’s power to assure continued support for

minor children after [the supporting parent]’s death.” [Bracket original.]

Emerick on Behalf of Howley v. Sanchez, 547 N.W. 2d 109 (Minn.App. 1996), found

that its statute had a presumption that support is not terminated by the death of a parent, “unless

otherwise agreed in writing or expressly provided for in the decree.” Emerick, supra. at 112. In

relation, see New Hampshire's Enforceability After Death provision in paragraph 16 of the

judicial branch's form for Final Decree on Petition for Divorce, Legal Separation or Civil

Union Dissolution, NHJB-2071-FS: "The terms of this decree shall be a charge against each

party's estate."

Garcia v. Gonzalez, 654 So.2d 1064 (Fla.App. 3 Dist. 1995), also upheld an estate’s

obligation for child support where an express agreement abrogated the common law rule

terminating support at the time of death.“ Quoting Simpson v. Simpson, 108 So.2d 632 (Fla. 2d

15

DCA 1959), Garcia stated, “’This court cannot conclude that it is consonant with justice and

reason that a properly covenanted obligation on the part of the father to assume responsibility

for support payments for his child through a given period of time should be held invalid at his

death.’ [Simpson] at 634.” Garcia found that the duration of the parent’s duty to pay, by

operation of law, was the child’s minority. Thus, even though the deceased parent’s agreement

did not specify that payments were to continue until the child’s age of majority, his agreement

to pay “was the foundation of the final judgment.” “What the child may or may not inherit

through the laws of intestacy is not relevant here.” Garcia at 1066, footnote 1.

In re Estate of Hereford, 162 W.Va. 477 (1978), also looked at the equities involved in

holding that alimony can survive the death of a former husband. In a considered analysis of the

“words of art” used to characterize the provision for alimony, Hereford concluded “there was

sufficient language in the property settlement agreement of the divorce decree itself to permit

us to infer that the parties contemplated that the appellee receive support until her death.”

While “not the only possible result which could be inferred from our body of law; nevertheless,

it is a legitimate, permissible result from the law and in this case it is a just and equitable result

which is as good a reason for arriving at that holding as any other.” Id. at 489.

E. Misconstruing the Claim Against the Estate as One for Child Support Leads to Nonsensical Results

Identifying the mother’s claim for child support with probate’s “support and

maintenance for infant children” was a misconstruction. A close reading of both the

administrator’s motion to dismiss and the trial court order reveals their mistaken supposition

that “support” for the purposes of the probate statute is confined by and defines the decedent’s

“child support” obligation.

16

In his motion to dismiss, the administrator consistently characterized Ms. Gangi's claim

as one for "child support:” not as a judgment, not as a contract. The administrator then reasoned

since Richey was over age seven and the estate was administered as insolvent, "the

Commissioner of Insolvency's approval of the child support claim of Sheila Gangi was in error

as a matter of law." Apx. 13. See, also paragraph 24, "the child support claim is not allowable

as the child is over seven (7) years of age. The child support claim should be dismissed."

[Emphasis added.]

The trial court followed the administrator's erroneous construction of Ms. Gangi's claim

as one for "child support." "Because the statute mandates that child support only be allowed

when the child is under the age of seven the Estates argues that Richey does not qualify for

support." [Emphasis added.] Apx. 3.

Yet, other than Hirst’s hypothesis in dicta there is little support for equating "support"

pursuant to the probate statutes with "child support" pursuant to RSA 458-C. Moreover,

construing probate “support” as circumscribed by “child support” leads to absurd results.

To illustrate, the administrator in his disposition of Ms. Gangi’s claim puzzles over

whether Richey's receipt of a monthly social security death benefit can or should be used as a

deduction from the child support amount in accordance with In the Matter of Angley-Cook, 151

N.H. 257 (2004). The administrator concludes that to receive this credit, Richard Gangi would

have had to obtain judicial modification, which cannot be accomplished because he is

deceased. Apx. 63-64.

The administrator’s inquiry demonstrates the illogic of treating Ms. Gangi's claim as

one for child support as opposed to a contract or judgment. It leads to speculating whether a

child support obligation could be modified when no party to the obligation exists—when a

17

parent has died. Not to be facetious, but to make the point, visualizing the procedural

requirements of notice, financial affidavit, child support guidelines worksheet, uniform support

order, and current income of a “deceased obligor” stretches the imagination. Yet, the argument

that Ms. Gangi’s claim is for "child support" opens the door to such fanciful speculations.

To avoid this dilemma the long-standing recognition that this court has given to divorce

stipulations’ enforceability as contracts and to divorce decrees’ enforceability as judgments

should apply. The decedent’s agreement to charge his estate for his child support obligations

should be a just debt of his estate as are his other contracts and judgments.

"Our goal is to apply statutes in light of the legislature's intent in enacting them, and in

light of the policy sought to be advanced by the entire statutory scheme." Soraghan v. Mt.

Cranmore Ski Resort, 152 N.H. 399, 401 (2005). When statutory language is ambiguous, we

examine the statute's overall objective and presume that the legislature would not pass an act

that would lead to an absurd or illogical result. Id. [Citations omitted.]

The trial court decision failed to explain why its construction of the probate court’s

“support” statute should supersede or override the clear language of the divorce decree. The

trial court’s decision does not satisfactorily reconcile why the decedent’s agreement that his

child support obligations would bind his estate is deserving of less consideration than other

contracts owed by the decedent. "When interpreting two statutes that deal with a similar subject

matter, we construe them so that they do not contradict each other, and so that they will lead to

reasonable results and effectuate the legislative purpose of the statutes." Id. at 405 [Citation

omitted.]

F. What Legislative History Reveals about the Probate Term, “Support” Further, legislative history does not comport with the administrator's construction.

18

The probate insolvency provision has been in effect since at least 1789. Apx. 99-105 (See Apx.

100 in the lower left hand margin "Passed Feb. 3, 1789" and see Apx. 101 in the middle right

margin "Each child to be supported out of surplusage 'till seven years of age, after that, out of

his or her share."). The child support statutory provision apparently was enacted over 50 years

later. Apx. 106-107 (See Apx. 106 in the middle right margin "Children maintained, &c.")

Thus, it is reasonable to conclude that a law for "support and maintenance for infant children”

in the latter part of the 18th century did not and could not have as its intent the statutory child

support obligation to be passed half a century hence.

The scant references to “support” in legislative history undermine the contention that

the probate term, “support,” necessarily means “child support.” Since the insolvency provision

has come down to us basically unchanged for over two hundred years, legislative history

illuminating this term is unavailable. See, History for RSA 557:27.

Legislative history relating to the solvency statutes indicate that the probate meaning of

“support” was confusing and ambiguous even to those involved in amending estate legislation.

Apx. 112-117. T. 33, L.20-23; T. 34, L.1-7. In 1997 the solvency provisions were amended to

bring them into conformity with provisions for Medicaid repayments. The Senate Committee of

Judiciary hearing on Senate Bill 0096 on January 29 1997 contains the following references to

the term, "support."

Senator David K. Wheeler, D. 11: On number 5 the support

made to minor children, how is that amount calculated now after this

bill currently? And does that include child support payments; how

is that calculated?

Senator Edward M. Gordon, D. 2: I really don’t know the

answer to that and I might defer to Judge Hampe. (to Judge Hampe)

Judge Hampe: I’m not sure, I never had a claim into that

19

since I’ve been a judge, so I don’t know how we’d cut that. I know the

law in the state is that child support (unclear) is not a charge against

the estate unless it specifically provides in the decry [sic] so I don’t

know how (unclear).

Kathleen Robinson/attorney: I don’t think (unclear, speaker

was talking from the audience and not at the witness table)

Senator James W. Squires, D. 12: Would it be fair to say Senator

Gordon that not knowing the amount, that this was (unclear), it would

be a tremendous amount of money, which would mean like someone

pointed out before, just debts would never be paid?

Senator Edward M. Gordon, D. 2: I’ll defer that, the answer to

that question to someone that would have been more authority that I

have. I’ve never had a case where we have provided for the support

and maintenance of a minor child. I have had cases where we have had

insolvent states and had to divide up the money according to the list

of priorities, but I never had a case where we had to divide up to a minor

child. …

Kathleen Robinson/attorney: I’m helping Senator Gordon

revise the bill and advise the priority of the charges. I just wanted to

clarify a few things. One of the objectives in the revisions was to bring into

conformance the conflicting provisions of 554:19 and 167:13 since they really

provide for different priorities, and so we were attempting to lay out a uniform

statute that could be followed by the courts. …

It was my recommendation to make minor children a priority

before the repayment of Medicaid for two reasons; one is that I think

we owe minor children support and if we don’t give it to them in estate,

they will become wards of the state which means they’ll go on welfare

which means the state will pick up the tab anyway. The second reason

was that in estates where there is a Medicaid reimbursement issue, as

Doug said, there is sometimes even very small amounts of monies that

are left. That if you’ve got someone who qualified for Medicaid, it means

20

that they had to have less then $2500 in their bank account and that’s all

they could have. So we’re talking about a very small amount of money.

So if widows or children needed that money, I don’t think it’s

going to make a big difference to the state. Just for clarification. …

Apx. 114-117.

Thus, even for those knowledgeable about probate law, the meaning of “support and

maintenance for minor children” was unfamiliar and unknown. Arguably, from some of the

comments, it was not considered the equivalence of a claim for child support.

Furthermore, this year a bill was introduced to change “the procedure for administration

of insolvent estates.” Minutes from the Judiciary Committee Hearing Report reflect that Judge

David King, Probate Court Administrator Judge, “explained that the current process for

handling insolvent estates is confusing, expensive, and archaic. He noted that the committee

took out the allowance for surviving spouse and minor children maintenance because now, they

would qualify for Social Security benefits.” Apx. 118-120. Again, these comments call into

question the presumption that the probate statutes’ support provisions equate to a child support

obligation chargeable against an estate pursuant to a divorce decree.

G. Treating Father’s Agreement to Have His Child Support Obligations Lesser in Priority than Other Just Debts of the Estate Has Serious, Detrimental Consequences to the Child

The correct way to treat Richard Gangi’s agreement that his obligation for child support

shall be a charge against his estate is as enforceable as any other contract and judgment:

which is what it is. Richard Gangi could have chosen not to have his child support

obligation be a charge against his estate or to make other provisions relating to this

obligation in the event of his death. Richard Gangi, represented by legal counsel, stated his

intent, he stipulated to it, he affirmed it, and it was adopted as a decree. He is entitled to

have this agreement honored on a par with his other contracts.

21

Further, the argument that a child support agreement and judgment chargeable against

one’s estate is lesser in priority to other just debts runs counter to public policy. Besides RSA

458-C, the statutory scheme insuring that parents provide child support, the duty to support

one's child is reflected in varied statutes. Failure to support a child is neglect, RSA 169-C:3,

XIX (b); and ground for a termination of parental rights, 170-C:5, II. Nor is one's child support

obligation dischargeable in bankruptcy. U.S. Bankruptcy Code, Title 11, Section 523(a) (5).

Consider also, RSA 161-B, Support of Dependent Children, providing for reimbursement to the

state for payments made for children's support.

Yet, here, where a father expressly intended to support his child, even in the event of his

death, a claim in accordance with these wishes falls behind other obligations of the father's

estate. Tellingly, the uncle's counsel admitted, "the real goal here, is to make sure that Sheila

Gangi doesn't get control of this money, and it goes to Richie Gangi, what's ever properly left

over." T. 30, L. 8-11.

However, this is contrary to the contract of Richard Gangi, who not only expressed his

intention by words, but by his deeds. By the time of his death Richard Gangi was routinely

providing significantly more than his original support obligation to Ms. Gangi. This clearly

bespoke Richard Gangi’s intent to have the mother of his child receive child support. Apx. 59-

62. Reservations or objections to the mother receiving a claim from the estate should not

override or erase the decedent's expressed intention. "[I]f you dismiss the child support claim

and other creditor claims are going to be knocked out, this child's going to get the money

through guardianship account and not Mrs. Gangi having her hands on it, to do what she wants

with it." T. 37, L.4-5. As pointed out in Garcia, what a child may or may not receive through

22

intestacy is not relevant; the linchpin is the decedent’s independent agreement to pay, that his

estate shall have the obligation for his child support. Garcia, supra. at 1066, footnote 1.

The curious aspect of the uncle’s argument against Ms. Gangi’s claim is that other than

a claim for about $10,000 for a home improvement vendor, the only claims against the estate in

addition to Ms. Gangi's are the uncle's and they amount to: $257,820.94. The assets in the

estate as of September 2009 totaled $320,008.05. Apx. 94-97. If the uncle were to withdraw his

claims, approximately $153,000 ($320,000 - $167,000) would be available to Richey through a

guardianship account. Without the $167,000 claim, if the uncle prevails on his claims, "what's

ever properly left over," T. 30, L. 8-11, will amount to about $62,000 ($320,000 - $258,000),

not including the legal expenses and fees incurred by the estate from jury trials, appeals, and

related litigation.

To put it plainly, if the uncle is concerned for Richey's financial welfare his path is in

the exact opposite direction. A significant motive, besides money, as revealed by the transcript,

appears to be personal animosity and vengefulness directed at Ms. Gangi. Arguing that the

insolvency statute prohibits child support to Richey because he is over seven, the uncle's legal

counsel, acknowledged: "Now, the hope, I think, by my brothers here is my claims get knocked

out. If my claims get knocked out, then there's more money left to the estate, and it's going to

go to the kid by way of a guardianship account." T. 30, L.4-7.

Richey does stand to receive the remainder of estate assets. If the paternal family's

claims for reimbursement of funeral expenses of over $35,000 had all been denied, Richey's

portion as sole heir of the estate would have increased. Treating the divorce decree as lesser in

priority is a back-door way of negating the decedent's voluntary and intentional just debt to Ms.

Gangi.

23

Nor is this an arcane, academic legal argument, as the above figures show. Depriving

this claim is to deprive Richey’s mother, his sole caretaker, of child support. Relegating the

claim for child support to lesser in priority than other just debts of the estate is likely to deprive

Richey of the significant support his father intended for him. If Ms. Gangi's claim is not equally

deserving with the other claims against the estate and the uncle is successful on his claims to be

heard by jury, little, if any residue may remain to distribute to Richey from the estate.

If Ms. Gangi's claim is held to be equally deserving of the other claims against the

estate, the decedent's intent to have his estate responsible for his child support obligations will

be honored by his son's receiving a proportional share with other just debts of the estate's

assets. Although an unusual, even obscure, situation, the consequences for this young child, for

his welfare and financial security, could not be more real.

II. The Probate Insolvency Distribution Statute, RSA 557:27, Denies Equal Protection to Children Over Age Seven in Violation of the State and Federal Constitutions.

Equal protection is a principle of justice and of common sense. The N.H. Constitution

provides that "all persons similarly situated should be treated alike," but further, it also provides

that at a minimum a state created classification must be rational: it must be reasonably related

to a legitimate state interest. In re Sandra H., 150 N.H. 634, 637 (2004).

Acceptance that "the legislature had some reason to limit an otherwise just claim of

child support," is woefully inadequate to justify discriminating against children over age seven

under insolvent estate administrations. Apx. 8. The legislature has enacted child support laws

and probate distribution statutes, thus it is for the legislature to change them, the trial court

concluded. Apx. 7-8.

24

The principle of equal protection requires more. Equal protection does not allow

abdicating judicial redress when fair treatment under the law is denied without sufficient

justification.

As with the other issue on appeal, no one disputes that the statute discriminates against

Richey or that he is not entitled to equal protection. Children have a right to the equal

protection of the law. Brown v. Bd. of Education, 347 U.S. 483 (1954). "[N]either the

Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13

(1967).

The issue is whether it is permissible to discriminate against Richey because he

happened to be nine years old, rather than six years old, at the time of his father's death. Thus,

whether it is permissible to treat Richey differently pursuant to administration of an insolvent

estate than he would be treated in a solvent estate and to treat him differently within the

insolvency statute because he is over age seven.

The trial court concluded that the discrimination against Richey is permissible because

no suspect classification or substantive right is involved and "the plaintiff has not shown that

the age distinction in RSA 557:27 is without a reasonable justification." Declining to "second-

guess this legislative judgment," the trial court conjectured that a "widow, even after receiving

her temporary allowance, is facing extreme financial difficulty due to the decedent's death.”

The decedent's estate has some assets, the trial court continued, "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 for in his will." Allowing a child support award up to age 18 may

prohibit the widow's receipt of the funds. "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

25

obligation, the widow who is clearly in need would receive some additional funds." This

example, according to the court, illustrated a rational basis for discriminating against Richey.

Apx. 8.

The explanation is inadequate and unsatisfactory to justify denying Richey his

constitutional right of equal protection. The trial court's hypothetical does not resolve arbitrary

discrimination or reasonably promote a legitimate public interest.

If the legislature wanted to provide funds in a "widow's will" before support to a child,

who was not the widow's, then it should have denied support to children of any age, not only to

those over age seven. Imagine if a law allowed spouses, only 38 years and under, to receive

distributions from an estate. Deference to legislation does not impel a blind eye to blatant,

unreasonable discrimination. "In applying an analysis identical to that used by federal courts,

we have held that a 'classification must not be arbitrary, but must reasonably promote some

proper object of public welfare or interest.'" In re Sandra H., supra. at 637.

In understanding the insolvency statute's classification, it is helpful to examine

legislative deliberations. (T. 31 L.7-11; T. 33 L.10-23; T. 34; T. 35 L.1-14.) See, for example,

Alonzi v. Northeast Generation Services Co., 156 N.H. 656 (2008), which relied on the detailed

legislative history behind the Worker’s Compensation Law, as indicative of a thoughtful

balancing of burdens and benefits. Id. at 667. As another example, see San Antonio

Independent School District v. Rodriguez, 411 U.S. 1, 55 (1973), where the state plan "was not

the result of hurried, ill-conceived legislation," rather it "constituted a 'rough accommodation'

of interests in an effort to arrive at practical and workable solutions," which was "rooted in

decades of experience." Id.

26

The probate insolvency statutes are on the opposite end of the detailed legislation

spectrum. There is a paucity of legislative history showing a reasoned approach to balancing

choices for benefits and burdens. The legislative history that exists does not evince a

deliberative, considered, rational basis for denying distribution of insolvent estate monies to

children who are over the ripe old age of seven.

The N.H. probate insolvency provision has come down to us basically unchanged at

least since 1789. Apx. 99-105. In 1842 the N.H. legislature codified provisions for the

distribution of solvent and insolvent estates. (RS 159:14 for solvent estates; RS 162:23 for

insolvent estates.) Those statutes have come down to us as RSA 554:19, Priority of Charges in

solvent estates, and RSA 557:27, Distribution to Legatees, in insolvent estates. See, History,

RSA 554:19 and RSA 557:27.

Prior to 1975 the solvency distribution statute provided that the estate was chargeable

for "the support and maintenance of infant children of the deceased until they arrive at the age

of seven years." In 1975 age seven was changed to age eighteen. The insolvency statute's

distribution provision was not changed; support remained limited to children under age seven.

While legislative history relating to the insolvency seven-year-limit is, for practical

purposes, inaccessible, the solvency statute's 1975 amendment offers insight to the age

limitation. The amendment's sponsor pointed out that the seven-year-age limit was archaic and

obsolete. "The present rule calls only up to the age seven years. This was written back when

kids would go to work in the mills when they were eight years old." Committee on Judiciary,

Apx. 108. T. 33, L.20-23; T. 34 P.1-3.

The 1975 Senate Journal provides this comment: "However, the present law only allows

for support of infants, minors from the estate up to age seven. That is a very old law,

27

apparently, and must have come in in an era much earlier than this one." It continues, "This bill

would increase the age of seven up to eighteen so that a minor could have a charge against his

parents estate until age eighteen." Senate Journal, 26May75, P. 534, Apx. 110.

The recent legislation introduced to overhaul the probate insolvency statute repeals the

entire chapter, RSA 557, relating to insolvent estates. Apx. 122-125. It then inserts a new

section into the solvency statute: RSA 554:19-b Insolvent Estate. Distribution of assets under

the proposed legislation would be the same as a solvent estate: pursuant to RSA 554:19,

Priority of Charges.

Given this history, the most reasonable explanation for the discrimination is not that the

legislature must have some rational basis for it. It is that the legislature simply overlooked

amending the insolvency provision to bring it in line with modern times. Certainly, if it

makes sense to change a solvency distribution provision to extend support to children up to

age eighteen because eight year olds no longer go to work in mills, it would make at least as

much sense to extend the same consideration for children able to receive support from an

insolvent estate. Children, regardless of type of estate distribution, no longer go to work in

the mills at age eight.

The trial court's observation that, "The Court also notes that it is clear that the legislature

was not particularly concerned with supporting children via these priority provisions," is

not a justification for discriminating against a child who does fall within the provisions.

See, Apx. 8. "We have held, in accordance with the United States Supreme Court, that the

equal protection guarantee is 'essentially a direction that all persons similarly situated

should be treated alike." In re Sandra H., supra. at 637.

28

The trial court found no suspect classification or fundamental or important substantive

right implicated in the discrimination against Richey, thus used the least restrictive rational

basis and presumed the legislation valid. See, Apx. 6-9. The administrator's argument for

dismissal was that since the "power to make allowances for child support is wholly statutory—

referencing RSA 461-A:14, the child support statutory provision—and since the legislature

amended the probate solvency "child support" provision but not the insolvency "child support"

provision: "It is the responsibility of the NH Legislature to address any change in the child

support, if it so chooses, through legislative action." Apx. 13.

Viewing the law as statutory, thus valid, doesn't solve the dilemma, however. In a

certain aspect it complicates it, since equally "wholly statutory" is the power to make estate

distribution priorities. Why the child support statute should play second fiddle to the probate

insolvency distribution provision—why "wholly statutory" child support creation is less worthy

than "wholly statutory" probate creation—remains a mystery. If anything, the child support

statute should be viewed as more credible as indisputably it is a much more deliberative and

considered piece of legislation. Given each enactment's legislative history, discounting the

child support statute in favor of the insolvency distribution provision failed to accord due

deference to the N.H. legislature.

While not conceding that the discrimination against Richey falls into the least

scrutinized classification, even under this standard there must be some reasonable justification

for discriminating against Richey because he is age nine, instead of six. Verizon New England

v. City of Rochester, 156 N.H. 624 (2007). The trial court's conjectures did not explain how

discriminating against children over age seven from support when an estate is administered as

insolvent is rational or reasonably related to a state interest. The Equal Protection Clause

29

requires more than the mere incantation of a proper state purpose. Trimble v. Gordon, 430 U.S.

762, 769 (1977).

The comparison of siblings [twin sisters] identically situated in the dissent [Broderick,

C.J.] in State v. Chrisicos is particularly applicable to Richey's situation. [Emphasis in

original.] Using the Chriscios' analysis, under the insolvency statute, a six-year-old receives

support while her sibling, 18 months older, gets nothing. State v. Chrisicos, No. 2009-062

(decided November 17, 2009), Dissent, Broderick, C.J.

Also paralleling Chrisicos, is the concern that construing the insolvency distribution

statute's discrimination against children over age seven as permissible introduces inappropriate

considerations into the choice for administering an estate as solvent or insolvent. Id. Since

administrators have an integral role in seeing that an estate is probated as solvent or insolvent,

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. See, RSA 557:1,

providing that, "The estate of a person deceased may on application of the administrator be

decreed to be administered as insolvent…."

Although arguably failing even under the least restrictive scrutiny, the discrimination

against Richey deserves heightened scrutiny under an equal protection analysis. The trial

court's view of Richey's denial of equal protection as an "age distinction," and reliance on

Estate of Robitaille v. N.H. Dep't of Revenue Administration, 149 N.H. 595, 596 (2003) as

treating Richey's claim comparable to the right to inherit, mischaracterized the nature of

Richey's right to equal protection. Apx. 7-8.

Robitaille is easily distinguished as it involved an estate tax imposed on collateral

relatives. Robitaille's classification was not against a selected group of individuals treated

30

differently from others in a similar situation ("the legislature cannot classify taxpayers"); it was

based on classifying property as taxable or nontaxable.

Richey's discrimination is based on classifying individual children, similarly situated,

one from another. If the legislature had discriminated against all children, of whatever age, and

regardless whether support was pursuant to a solvent or insolvent estate, Richey may not have

an equal protection argument. But to single out children pursuant to an insolvent estate, then

further to single them out because they are over age seven, is the type of classification not

permitted by equal protection.

The discrimination is especially insidious because it is directed at young children:

"'discrete and insular minorities' who are relatively powerless to protect their interests in the

political process." See, dissent by Mr. Justice Marshall in San Antonio, supra., 105-109,

referring to Graham v. Richardson, 403 U.S 356 at 372 (1971) and United States v. Carolene

Products, 304 U.S. 144, 152-153 n.4 (1938).

"Status of birth, like the color of one's skin, is something which the individual cannot

control, and should generally be irrelevant in legislative consideration," observed Justice

Marshall pointing to the impermissible discrimination against illegitimate children in Weber v.

Aetna Casualty and Surety Co., 406 U.S. 164 (1972). "Hence, discrimination on the basis of

birth—particularly when it affects innocent children—warrants special judicial consideration."

Id. at 109.

Richey's youth, his vulnerability, and his significant interest in insuring his father's

intent that he receive child support, all warrant "special judicial consideration." Whatever

motive might be ascribed by the court and the administrator to the legislature for the insolvency

statute's discrimination does not condone penalizing a nine-year-old. As Weber made clear,

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discriminating against children to achieve a result directed at adults is unacceptable. "[V]isiting

this condemnation on the head of an infant is illogical and unjust." Weber, supra. at 175.

Weber's rationale is equally applicable to Richey's situation where it points out, "imposing

disabilities on the illegitimate child is contrary to the basic concept of our system that legal

burdens should bear some relationship to individual responsibility or wrongdoing. Obviously,

no child is responsible for his birth…." Id. As pointed out in Weber, "the Equal Protection

Clause does enable us to strike down discriminatory laws relating to status of birth where—as

in this case—the classification is justified by no legitimate state interest, compelling or

otherwise." Id. at 175-176.

While no one contends that the N.H. legislature intended to discriminate against nine

year olds whose deceased parent's estate is insolvent, the effect of the discrimination is

nevertheless onerous, as Richey's predicament demonstrates. It is difficult to even propose a

rationale for discriminating against a nine-year-old, who can no longer go to work in the mills,

from receiving support that he would have received if a decision had not been made to probate

his father's estate as insolvent. Just as difficult is proposing a rationale to preclude him from

support he would have received if his date of birth was two years later. This is sufficient to find

that RSA 557:27 impermissibly discriminates because Richey is nine years old and his

deceased father's estate is administered as insolvent. However, there are worthy reasons to hold

this discrimination up to a higher standard of scrutiny and not dismiss it simply as, "there must

be a reason for it, and therefore it's permissible." A child, over age seven, entitled to support but

for an estate being administered as insolvent, has as strong an interest as any other child in

receiving support. The Equal Protection clause not only permits, it requires protecting children

from such discrimination.

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CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the appellants respectfully request that this Honorable Court

reverse the decision of the trial court.

REQUEST FOR ORAL ARGUMENT

The appellants request a fifteen-minute oral argument before the full court to be

presented by Randall E. Wilbert.

Respectfully submitted,

SHEILA GANGI, INDIVIDUALLY AND AS

NEXT FRIEND OF HER SON, RICHARD GANGI, III

By their attorneys,

Law Offices of Randall E. Wilbert, PLLC

Lucinda Hopkins, on the brief, NH Bar No. 1193 Randall E. Wilbert, on oral argument, NH Bar No. 2744.

Law Offices of Randall E. Wilbert, PLLC One Indian Head Plaza, Suite 510 Nashua, New Hampshire 03060-3442 603.889.8443 April 28, 2010.

CERTIFICATION OF DELIVERY

I hereby certify that I have either hand-delivered or sent by first class mail two copies of the brief to other counsel in the case. Lucinda Hopkins, NH Bar No. 1193