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In the Matter of Eric J. Dube and Jeannie Dube

May 11, 2012

IN THE MATTER OF ERIC J. DUBE AND JEANNIE DUBE


The opinion of the court was delivered by: Conboy, J.

Derry Family Division

Argued: February 15, 2012

The respondent, Jeannie Dube, appeals the final decree in the divorce action initiated by the petitioner, Eric Dube. She argues that the Derry Family Division (Moore, J.) erred when it granted Eric a fault-based divorce. In addition, she challenges the trial court's division of the parties' property and its denial of her alimony request. Further, she contests the validity of the stipulated parenting plan. We affirm in part and reverse in part.

The trial court found the following facts. The parties were married in 1997.

During their marriage, they purchased a home in Candia, where they lived with their son and one of Eric's children from a previous marriage. In addition, Eric's parents lived in an in-law apartment over the garage of the marital home.

In the later years of their marriage, the parties began to experience marital difficulties. They demonstrated little to no affection toward one another, and Jeannie refused to be intimate with Eric. On November 30, 2008, Jeannie learned that Eric had engaged in a single instance of adultery.

Three days later, on December 3, 2008, while the pair discussed their marriage during a telephone conversation, Jeannie told Eric that she was going to kill the parties' minor child, Eric's child from a previous relationship, and Eric's parents. She also told him that she was going to burn down the marital residence. Following their conversation, Jeannie "doused the marital residence and garage with gasoline and attempted to ignite it with a lighter." In addition, she "destroyed a portion of the marital residence and property with an ax[],"and then chased Eric's father around the house with the ax, as he tried to prevent her from lighting the gasoline. Consequently, the next day, Eric obtained a restraining order against Jeannie. As a result of her actions, Jeannie was charged with two counts of attempted murder, one count of attempted arson, and one count of criminal mischief.

On December 9, 2008, Eric filed for divorce, claiming irreconcilable differences caused the breakdown of the parties' marriage. See RSA 458:7-a (Supp. 2011). Thereafter, he amended his divorce petition and added an alternate ground for divorce, claiming Jeannie "ha[d] so treated [him] as seriously to injure health or endanger reason." RSA 458:7, V (2004). After he amended his petition, but prior to the final hearing, Jeannie was convicted of one count of attempted arson and one count of criminal mischief and was subsequently sentenced to two to four years at the New Hampshire State Prison for Women. As a result, during the final divorce hearing, Eric asked the court to consider that Jeannie's "conviction of a crime punishable by prison for more than one year constitute[d] fault grounds that caused the breakdown of the marriage."' See RSA 458:7, IV (2004).

Following the final hearing, the trial court granted Eric a decree of divorce "on the grounds of [Jeannie's] conviction of a crime and imprisonment for more than one year." In addition, after consideration of the parties' debt and marital assets, as well as Jeannie's incarceration, the court concluded that an unequal division of the marital property in Eric's favor was warranted. Further, the court adopted the parties' stipulated parenting plan, which awarded Eric decision-making and residential responsibility for their minor son, and detailed a plan to facilitate progressively increased contact between Jeannie and the boy. Finally, the court denied Jeannie's request for alimony, finding it "unwarranted." This appeal followed.

I. Fault-Based Divorce

We first address Jeannie's contention that the trial court erred in granting Eric a fault-based divorce on the grounds of her conviction and subsequent imprisonment. She asserts that Eric is not an "innocent party" because he committed adultery, and, therefore, he is precluded from obtaining a fault-based divorce.

RSA 458:7 (2004) provides in pertinent part:

A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of ...


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