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In re Price

Supreme Court of New Hampshire

February 5, 2013

In the Matter of John Price and Robin Price,

The petitioner, John Price, appeals his divorce decree. He argues that the trial court erred in: (1) awarding the respondent, Robin Price, alimony for ten years; and (2) finding that he has the ability to pay the amount awarded. We affirm in part, and vacate in part.

The trial court has broad discretion to determine and order the payment of alimony. In the Matter of Nassar & Nassar, 156 N.H. 769, 772 (2008). RSA 458:19, I (Supp. 2012) authorizes the trial court to award alimony where:

(1) the party in need lacks sufficient income, property, or both to provide for his or her reasonable needs, considering the style of living to which the parties have become accustomed during the marriage; (2) the payor is able to continue to meet his or her own reasonable needs, considering the style of living to which the parties have become accustomed during the marriage; and (3) the party in need cannot be self-supporting through appropriate employment at a standard of living that meets [his or her] reasonable needs . . . .

In the Matter of Hampers & Hampers, 154 N.H. 275, 283 (2006). We review the trial court's decision to award alimony under our unsustainable exercise of discretion standard. Id. We will affirm its findings and rulings unless they are lacking in evidentiary support or are tainted by error of law. Nassar, l56 N.H. at 772.

In determining the amount of an alimony award, the trial court must consider several factors, including the length of the marriage, the age, health, social or economic status of the parties, the amount and sources of available income, the property awarded to the parties, and the occupation, vocational skills, employability, estate, liabilities, and needs of each party. Hampers, 154 N.H. at 284; RSA 458:19, IV(a). The trial court may also consider the economic and noneconomic contributions to the family unit made by each of the parties. Hampers, 156 N.H. at 284; RSA 458:19, IV(d). While the primary purpose of alimony is rehabilitative, we have also recognized that RSA 458:19 allows for non-rehabilitative alimony in certain circumstances. Nassar, 156 N.H. at 777.

The trial court specifically found that, in this case, the purpose of the alimony is rehabilitative. See, e.g., id. at 777-78 (setting forth factors which may determine that rehabilitative principle of alimony is not controlling). Rehabilitative alimony is based on the theory that spouses are equally able to function in the job market and to provide for their own needs. Harvey, 153 N.H. at 431. Alimony is therefore designed to encourage the recipient to establish an independent source of income. Id.

In this case, the trial court found that the respondent was capable of working but was unemployed. The trial court order further states: "The Court expected that [the respondent] would have found at least part-time employment by the final hearing. She has not done so for reasons that are unclear. The fact that she is educated and has some prior work experience will be a help for her." The court further found that the respondent was healthy and capable of working, and imputed monthly income of $1, 300 to her. In reviewing her need for continuing alimony, the court also found: (1) that she had "clearly met her burden to show that she has need and . . . is unable to self-support at this time"; (2) that she "will need some time to transition back into the workforce"; and (3) "[a]lthough she is 55, it is feasible that she would be able to hold at least a minimum wage full time job, and has the skills and education to be capable of more than that. She will need time to make that transition, but it is not unreasonable to expect her to work temporarily at an entry level to support herself." Based on these findings, the trial court awarded alimony of $2, 500 per month for five years, $2, 000 per month for the following three years, and $1, 500 per month for a final two-year period, reasoning that the award was "equitable based upon [the] length of the marriage . . . and the fact that [the respondent] is 55 [years old]." In denying the petitioner's motion for reconsideration, the trial court further elaborated:

[B]ecause of the length of time [the respondent] has been out of the workforce and the history of this case, her qualifications, and the current economic climate, it appeared more likely than not that [the respondent] would be unable to support herself and meet her reasonable needs in the immediate future. The Court issued orders for alimony of 10 years based upon the consideration of all of the factors in [RSA 458:19], including, the length of the marriage, economic factors as discussed in the decree and [the respondent's] contribution as a homemaker and a parent. The Court recognizes that this is a substantial obligation for [the petitioner]. The orders for a declining scale of alimony are intended to be . . . rehabilitative, with the anticipation that [the respondent] will eventually self support.

Having reviewed the record before us, including the trial court's specific findings that the respondent was healthy and capable of working, with such "skills and education" to hold more than a minimum wage position, we conclude that the trial court's award of alimony for ten years is not supported by the record. Accordingly, we vacate that portion of the parties' divorce decree that awarded alimony to the respondent beyond three years from the date of this appellate order. Should the respondent seek a further award of alimony, she can file a petition pursuant to RSA 458:19, VII (Supp. 2012) to request renewal of the award. The trial court will then have an opportunity to receive evidence and determine whether an order of renewal of alimony is necessary, and establish the term and amount at that time.

The petitioner also argues that the trial court erred in finding that he has the ability to pay the amount of alimony awarded to the respondent. Having reviewed the record before us, we cannot conclude that the trial court's order was unsupported by the evidence as a matter of law. See Nassar, l56 N.H. at 772. While the trial court found that the petitioner's monthly expenses as reflected on his financial affidavit would exceed his monthly income by approximately $400 with the payment of $2, 500 in alimony, the respondent challenged many of the expenses that the petitioner listed on his affidavit, some of which were short-term. Based upon all of the evidence submitted to the trial court, the court reasonably could have found that the petitioner had the ability to pay the amount awarded.

Affirmed in part; and vacated in part. ...


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