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In re Solomon

Supreme Court of New Hampshire

August 27, 2013

In the Matter of Andrea Solomon and Steven Solomon

The petitioner, Andrea Solomon, appeals her decree of divorce. She argues that the trial court unsustainably exercised its discretion in the way in which it distributed the parties' marital property and awarded alimony. We affirm.

We turn first to the petitioner's argument that the trial court erred in its distribution of the marital property. The petitioner contends that "the majority of relevant statutory factors under RSA 458:16-a, II, support an equal property division in the instant case, or a disproportionate award of property in favor of [the petitioner]." She also argues that the decision to award the respondent's inheritance to him in its entirety "effectively removes it from the marital estate."

In effect, the petitioner asks this court to reweigh the equities in this case and divide the property accordingly; this is not our role on appeal. In the Matter of Heinrich & Heinrich, 164 N.H. 357, 365 (2012). Rather, our limited role is to determine whether the trial court's decision was a sustainable exercise of discretion. In the Matter of Henry & Henry, 163 N.H. 175, 183 (2012). "When we determine whether a ruling made by a judge is a proper exercise of judicial discretion, we are really deciding whether the record establishes an objective basis sufficient to sustain the discretionary judgment made." State v. Lambert, 147 N.H. 295, 296 (2001). "We will not disturb the trial court's determination if it could reasonably be made." Heinrich, 164 N.H. at 365 (quotation omitted).

RSA 458:16-a (2004) governs property settlements in divorce and "enumerates various factors for the court to consider, such as the length of the marriage, the ability of the parties to provide for their own needs, . . . the contribution of each party during the marriage and the value of property contributed by each party." Id. at 363 (quotation omitted). The enumerated statutory factors include "[t]he value of any property acquired by gift, devise, or descent." RSA 458:16-a, II(n). In addition, "the court may consider any other factor it deems relevant in equitably distributing the parties' assets." Heinrich, 164 N.H. at 364 (quotation and brackets omitted). However, the trial court is not required to consider all of the enumerated factors or to give them equal weight. In the Matter of Watterworth & Watterworth, 149 N.H. 442, 453 (2003); accord Henry, 163 N.H. at 184.

"In a divorce proceeding, marital property is not to be divided by some mechanical formula but in a manner deemed 'just' based upon the evidence presented and the equities of the case." In the Matter of Sarvela & Sarvela, 154 N.H. 426, 431 (2006) (quotation omitted). The trial judge is in the best position to evaluate the evidence, measure its persuasiveness and assess the credibility of witnesses. In the Matter of Salesky & Salesky, 157 N.H. 698, 708 (2008). A trial court is not precluded from awarding a particular asset in its entirety to one party. Henry, 163 N.H. at 183. The court can award inherited property to the party who inherited it if the court concludes that such an award is equitable. Henderson v. Henderson, 121 N.H. 807, 810 (1981).

In this case, the court's decree demonstrates that it considered statutory and other factors in determining an equitable property division. The court specified that it considered the "opportunity to acquire future assets; health of each party; needs and liabilities of each party; expectation of pension or retirement rights of each party; and the value of property acquired by devise or descent." The court's narrative also addresses the duration of the marriage, the age, economic status, and employability of the parties, the indirect contributions by each party to the other's career, the amount and sources of income, and the needs and liabilities of each party, all factors enumerated in the statute. See RSA 458:16-a, II(a), (b), (h).

The court awarded the petitioner a little more than half of the marital assets, other than the respondent's inheritance. She received all of her retirement accounts, half of the respondent's IRAs, and half of the equity to be derived from the future sale of the marital home. Contrary to the petitioner's contention, the court did not remove the inheritance from the marital estate. The court explicitly recognized that the respondent's inheritance was a marital asset and noted that "the vast majority of the marital estate came as a result of the Respondent's inheritance from his parents." The court concluded that this fact, together with all the other evidence before it, made awarding the respondent's inheritance to him equitable.

The petitioner has not shown that the court had no objective basis for this determination or that the court failed to follow the statute in some way. Instead, she asks us to conclude that the evidence presented to the court should have been weighed differently. This we cannot do. The record demonstrates that the trial court considered the relevant statutory factors. In addition, the record indicates that a significant amount of marital assets have been expended on the petitioner over the course of her lengthy illness. The petitioner has not shown that the court could not reasonably reach the decision it made. Therefore, we cannot say that the court's division of assets was so inequitable as to constitute an unsustainable exercise of discretion. See Sarvela, 154 N.H. at 432-33.

Next, the petitioner argues that the court's alimony award "constitutes an unsustainable exercise of discretion" because: (1) the award, coupled with the property division "will not enable her to meet even her most basic needs, much less her reasonable needs"; (2) the respondent "can plainly afford much more than $2, 000.00 per month"; and (3) the respondent has "the unilateral power to terminate [alimony] on his own terms, at any time – upon retirement or with even a job change."

As the petitioner acknowledges, "[t]rial courts have broad discretion in awarding alimony." In the Matter of Peirano & Larson, 155 N.H. 738, 746 (2007). As with property division, we review the trial court's alimony award under our unsustainable exercise of discretion standard. Henry, 163 N.H. at 182. This limits our consideration to "whether the record establishes an objective basis sufficient to sustain the discretionary judgment made." Lambert, 147 N.H. at 296.

RSA 458:19 (Supp. 2012), governing alimony awards, directs the trial court to determine, first, whether alimony should be awarded, RSA 458:19, I, and, second, the amount of such alimony, RSA 458:19, IV. Neither party here contests that alimony should be awarded. Cf. In the Matter of Dube & Dube, 163 N.H. 575, 581 (2012) (finding that incarcerated wife did not lack sufficient income or property or both to provide for her reasonable needs.)

To determine the amount of alimony, a trial court must look to both parties' needs and financial status. See RSA 458:19, IV.

[A] trial court must consider: the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded under RSA 458:16-a (2004), vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party . . .; and, the federal tax consequences of the order. Further, the court may consider the economic contribution of each party to the value of their respective estates, as well as non-economic contributions to the family unit.

In the Matter of Hampers & Hampers, 154 N.H. 275, 284 (2006) (citation omitted). In addition, we have encouraged trial courts to anticipate foreseeable events, including parties' imminent retirement. In the Matter of ...

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