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In re Fredette

Supreme Court of New Hampshire

February 13, 2013

In the Matter of Dora Fredette and Walter Fredette

The respondent, Walter Fredette (the Husband), appeals his divorce decree. He argues that the trial court erred in: (1) structuring its alimony award to the petitioner, Dora Fredette (the Wife); (2) considering his fault in the dissolution of the parties' marriage and the division of marital assets; (3) awarding the marital home to the Wife; and (4) awarding the Wife a one-third share in an inheritance received by him. We affirm.

We briefly set forth the facts found in the record. The parties were married in December 1982; they separated in November 2004. After they separated, they continued to see each other and engage in activities together, as a couple and with their children, and they continued to have sexual relations until the summer of 2009. In 2010, the Wife filed her petition for divorce. In its decree of divorce, the trial court awarded the Wife $1500 a month in alimony until July 1, 2020. The Husband argues that both the term and the amount of alimony are in excess of what is permitted by law and supported by the record.

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.

In support of his challenge to the alimony award, the Husband cites the Wife's testimony that "she only needed to take a $300.00 real estate course in order to substantially increase her income." He also argues that because the parties lived together in a home with no running water or plumbing during most of the term of their marriage, the court's order permits the Wife to enjoy a higher standard of living than that which she enjoyed for much of the marriage.

As a preliminary matter, we note that the testimony cited by the Husband is an excerpt from more detailed testimony about the Wife's expenses, testimony that supports the trial court's calculation of the Wife's needs. The trial court found that the Wife wanted to attend school to obtain more administrative office skills or to become a licensed real estate agent, and that, although she had had several part-time jobs, she had assumed primary caretaking responsibilities for the parties' three children, which allowed the Husband to pursue his successful career. The record also indicates that while the Husband had accrued a 401K retirement account of $75, 000, the Wife had an IRA of $2, 200. The court concluded that an award of $1500 a month until 2020 would give the Wife "the ability to obtain schooling/training to be able to work her way up to a higher paying position in her current employment or elsewhere, either through office work or obtaining a real estate license." The court further ordered that if the Wife were able to earn substantially more than she was at the time of the hearing, "the issue of alimony may be revisited. If she earns somewhat more, the Court would not find that grounds for reducing alimony because she will need to earn more money in addition to her income and the alimony in order to meet her reasonable needs and be in a position to provide for her future."

That the parties had lived a "rustic lifestyle" for much of the marriage did not require a reduction in the alimony award. During that time, the parties were living on the property of the Wife's parents and had access to the parents' home to shower. At the time that the Husband moved out of the marital home, the parties had begun construction on their new home, which was being built on property they had purchased in 1999 for that purpose. They worked together on weekends on construction of the home, obtained a mortgage together and obtained a certificate of occupancy in 2008. Whether the Wife will be able to afford to continue to live in the home remains an open question. However, given the record before us, including the work and earnings history of both parties, we cannot conclude that the trial court's award of $1500 a month in alimony, where the court found that the Husband had $2349 monthly income after paying all of his expenses, is an unsustainable exercise of discretion. See Hampers, 154 N.H. at 283.

The Husband also argues that the trial court erred in considering his fault in the dissolution of the parties' marriage and the division of marital assets. We note that the incomplete copy of the motion for reconsideration attached to his notice of appeal does not indicate that the Husband raised this issue with the trial court. See, e.g., Starr v. Governor, 151 N.H. 608, 612 (2004) (absent evidence that appellant has raised alleged error with trial court, issue is not preserved for appellate review). Moreover, even if we assume without deciding that this issue has been preserved for our review, we conclude that the Husband has failed to demonstrate support in the record for this claim of error.

The divorce decree lists the cause of divorce as "[i]rreconcilable differences which have caused the irremediable breakdown of the marriage." In support of his argument that the trial court considered fault in fashioning the divorce decree, the Husband cites two references in the decree to the Wife having seen him with another woman at a restaurant prior to her filing the petition for divorce. A review of the seven-page decree reveals that one of the references was in a summary of the Wife's testimony about the history of the parties' marriage. The other reference was in the section of the decree labeled retirement accounts and addressed the trial court's reasoning in assigning a date to value the accounts. Specifically, the trial court noted that, although the parties lived separately, their continuing interaction supported the possibility of reconciliation until the Wife saw the Husband with another woman in 2009.

We turn next to the Husband's contention that the trial court erred in awarding the marital home to the Wife. The parties stipulated that the equity in the house was $77, 000; the trial court awarded 60% of the equity to the Wife and 40% to the Husband. The Husband argues that he should be awarded "the majority of the equity" in the home because the home was completed "only after separation and solely as a result of the [Husband] taking the initiative to schedule, coordinate and perform the construction of the home, " and because he paid the mortgage, taxes and insurance through his $700 monthly payments to the Wife.

As the Husband observes, RSA 458:16-a creates a presumption in favor of an equal division of marital property unless the trial court determines that such a division would not be appropriate or equitable after considering several statutory factors. The trial court noted that both parties signed a mortgage on the house in 2008. In support of its unequal distribution, the trial court cited the long term marriage of the parties and considered "the age, health and occupation status and skills of each party, and the opportunity for each party for future acquisitions of capital and income." The trial court found that the Husband was in a far superior position in light of his long term employment where he was earning $5800 a month. All of these finding are supported by the record.

The Husband also argues that the trial court erred in awarding a one-third share to the Wife in an inheritance received by the Husband. In making its award, the trial court found that the Husband had lived with the Wife in an A-frame house on the Wife's parents' property for twenty-three years, and that the Wife and the parties' children continued to live there for another five years "at a very minimal charge." The court considered the fact that the Wife's parents had not requested repayment of rent from the parties and construed the Wife's parents' action as a gift. After weighing all of the evidence, the trial court awarded the Wife a one-third interest in the husband's inheritance, which is to be subtracted from the amount the Wife will owe the Husband if she elects to purchase his interest in the marital home. Having reviewed the record before us, we conclude that the trial court's exercise of discretion is ...


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