THE STATE OF NEW HAMPSHIRE SUPREME COURT JUNE TERM 2010 SESSION. Sheila Gangi, et al. v. Estate of Richard C. Gangi. Docket No.

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT JUNE TERM 2010 SESSION Sheila Gangi, et al. v. Estate of Richard C. Gangi Docket No 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 (603) If oral argument is scheduled, Doreen F. Connor will represent Appellee

2 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. III. 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 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 i

3 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 ii

4 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 (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: RSA 507:8-a...22 RSA ,12 RSA 554:19... Passim RSA 554:19 (IV)...13 RSA 554:19(V)...7,13 RSA 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 iii

5 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 (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 ). 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 1

6 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 , 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, (Appendix, p.94). Against that $300, Estate, Commissioner Connelly recognized claims exceeding $450, including preferred claims totaling $191, and general claims totaling $266, 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 2

7 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 3

8 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 (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 4

9 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. 5

10 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 6

11 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, 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). 7

12 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 8

13 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, (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 (1981); Guggenheimer v. Guggenheimer, 99 N.H

14 (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 (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 10

15 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

16 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 ). 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 ). 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 12

17 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 (August 6, 2009 Transcript, pp. 22, 38). 13

18 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 14

19 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 15

20 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 16

21 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, (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 (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 17

22 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 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: (App. 8). 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. 18

23 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 19

24 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 ). 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). 20

25 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 21

26 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 22

27 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 23

28 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, 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, 24

29 WIGGIN & NOURIE, P.A. Date: By: Doreen F. Connor, #421 PO Box 808 Manchester, NH (603) 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. CERTIFICATE OF SERVICE Doreen F. Connor, #421 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 DOC Doreen F. Connor, #421 25