In the Matter of John G. Lyon and Kimberly Anne White Lyon
Submitted January 22, 2014.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
2nd Circuit Court -- Lebanon Family Division.
Vitt, Brannen & Loftus, PLC, of Norwich, Vermont ( John B. Loftus, III on the brief), for the petitioner.
Rebecca A. Wagner, of West Lebanon, by brief, for the respondent.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
The respondent, Kimberly Lyon (now McConnell) (Wife), appeals an order of the 2nd Circuit Court -- Lebanon Family Division ( MacLeod, J.) granting summary judgment to the petitioner, John G. Lyon (Husband), and denying her petition to bring forward and modify alimony. On appeal, she argues that the trial court applied the wrong standard to her petition by requiring her to show a substantial change of circumstances. She contends that to prevail on her petition, she must show that she has a continuing need for alimony and that the Husband has a continuing ability to pay. Although we agree with the Wife that the " substantial change of circumstances" test is not the correct one to apply to the Wife's petition, we disagree with the standard that she articulates on appeal. Because the trial court did not apply the correct standard when it ruled on the Wife's petition, we vacate and remand.
The record establishes the following facts. The parties divorced in May 2007. Their divorce decree incorporated their permanent stipulation, which required the Husband to pay the Wife $3,000 in monthly alimony from January 1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1, 2007, through June 30, 2012, " or until the death of either party, whichever first occurs."
On May 31, 2012, the Wife filed a petition to extend the soon-to-expire alimony award for another three years. She alleged in her petition that she needed another three years of alimony because she was newly diagnosed with attention deficit hyperactivity disorder and, without alimony, could not afford the medication that would enable her to timely finish her education. The Husband moved for summary judgment, arguing that the Wife's petition failed to establish that there was an unanticipated or unforeseeable substantial change of circumstances that warranted extending the existing alimony order for another three years. See Laflamme v. Laflamme, 144 N.H. 524, 527-29, 744 A.2d 1116 (1999). Although the Wife timely objected to the Husband's motion, she failed to support her pleading with the requisite affidavits or other competent evidence " showing specifically and clearly reasonable grounds for believing that contradictory evidence can be presented at trial." RSA 491:8-a, II (2010). Accordingly, when ruling on the Husband's motion, the trial court accepted the facts set forth therein as true. See RSA 491:8-a, IV (2010). The trial court agreed with the Husband that the " substantial change of circumstances" test applied to the Wife's petition and ruled in the Husband's favor. This appeal followed.
" In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Dichiara v. Sanborn Reg'l. Sch. Dist., 165 N.H. ___, ___, 82 A.3d 225, 227 (2013). " If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will ...