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In re Cottle-Miller

Supreme Court of New Hampshire

April 24, 2012

In the Matter of Molly Cottle-Miller and Jonathan Miller

The petitioner, Molly Cottle, appeals the parties' divorce decree. She argues that the trial court erred in: (1) awarding the marital home to the respondent, Jonathan Miller; and (2) failing to find the respondent liable for child support. We affirm.

The trial court has broad discretion in determining matters of property distribution in a final divorce decree. In the Matter of Costa & Costa, 156 N.H. 323, 326 (2007). Absent an unsustainable exercise of discretion, we will affirm its decision on the equitable division of marital property. In the Matter of Goodlander & Tamposi, 161 N.H. 490, 495 (2011). To establish that a trial court's ruling is unsustainable, the petitioner bears the burden of demonstrating that the court's ruling was clearly untenable or unreasonable to the prejudice of her case. See State v. Lambert, 147 N.H. 295, 296 (2001).

The trial court found the following facts. The parties were married in October 2007. They separated in August 2009. The respondent adopted the petitioner's daughter during the course of the marriage. The principal asset of the parties was the marital home.

The petitioner argues on appeal that "while the trial court may have left [the parties] with balance sheets that were quantitatively equivalent, they are qualitatively worlds apart." As she concedes, although the respondent was awarded the marital home, the home is encumbered with a mortgage and tax liability exceeding its value.

We will assume without deciding that the property distribution was unequal and therefore that RSA 458:16-a, II applies. The trial court found that the respondent was entitled to credit for the "roughly $100, 000 in value given to him in both value of the land and the family contribution of labor toward the building of the house." The land on which the house was built had been subdivided from a larger parcel that had been in the respondent's family for over 100 years. The trial court further found that, even without giving credit to the respondent for the gifts provided by his family, the marital assets divided between the parties were "roughly equivalent." Given the short-term marriage of the parties, the contributions made by the respondent's family, including the subdivided property, and the encumbrances assigned to the respondent, we conclude that the trial court's decision was sustainable.

Moreover, although the petitioner argues that the trial court failed to consider that, but for her relationship with a former employer, the funding to build the home would not have been made available, the record contains conflicting testimony. See In the Matter of Aube & Aube, 158 N.H. 459, 465 (2009) (supreme court defers to trial court's judgment on such issues as resolving conflicts in testimony, measuring credibility of witnesses and determining weight to be given evidence). Nor are we persuaded by the petitioner's argument that the trial court failed to consider her need to provide a home for her daughter. Indeed, the trial court denied a ruling of law requested by the petitioner that an unequal property distribution would be equitable to allow her to continue to provide a home for her daughter. See Costa, 156 N.H. at 327 (under RSA 458:16-a, trial court need not consider all factors or give them equal weight).

We turn then to the petitioner's argument that the trial court erred in failing to find the respondent liable for child support. In support of its decision, the trial court stated: "It was clearly represented – and is still represented – that a petition to terminate the respondent's parental rights will be filed. That has been the agreement and assumption of the parties from the time of filing. Both parties relied on that assumption and it still appears to be in everyone's best interests." The trial court also granted the petitioner's request for the following finding of fact: "The Parties have agreed that the Respondent will surrender his parental rights to [the child]."

The petitioner did not file a motion for reconsideration of the trial court's order. She argues on appeal that although she "has little doubt" that grounds exist to terminate the parental rights of the petitioner, the trial court erred in not establishing a child support obligation for at least the time between when the parties separated until the time of the final hearing.

The trial court found, however, that because the parties had agreed that the respondent's parental rights would be terminated, the petitioner was estopped from seeking child support. The petitioner did not challenge this ruling in the trial court. As we have often stated, the trial court must have had the opportunity to consider any issues asserted by the appellant on appeal; thus, to satisfy this preservation requirement, any issues which could not have been presented to the trial court prior to its decision must be presented to it in a motion for reconsideration. See N.H. Dep't of Corrections v. Butland, 147 N.H. 676, 679 (2002).

Affirmed.

HICKS, CONBOY and LYNN, JJ., ...


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