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In re Miller

Supreme Court of New Hampshire

June 18, 2014

In the Matter of Todd Miller and Marta Miller

The petitioner, Todd Miller (husband), appeals the trial court's final decree of divorce from the respondent, Marta Miller (wife), arguing that the court erred in: (1) ordering him to pay for a post-trial business appraisal by an appraiser to be chosen by the wife and to pay her one-half of the value of the business based on the appraisal; (2) awarding the wife alimony for ten years and failing to specify the reasons for its award; (3) ordering child support in the amount of $1, 979 per month; (4) requiring him to maintain life insurance for the benefit of the wife for the duration of his life; (5) valuing the parties' commercial real estate in Derry and lake house in Laconia; and (6) ordering him to pay the wife's attorney's fees. With the exception of the part of the decree granting the divorce and approving the parties' agreed-upon parenting plan, we vacate and remand.

The husband first argues that the trial court erred in ordering him to pay for a post-trial business appraisal by an expert of the wife's choosing and to pay the wife one-half of the value of the business based on the appraisal, without any further court hearings or proceedings. We afford the trial court broad discretion in determining matters of property distribution in fashioning a final divorce decree. In the Matter of Harvey & Harvey, 153 N.H. 425, 430 (2006), overruled on other grounds by In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 15-16 (2007). We also afford the trial court broad discretion in managing the proceedings before it. In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007). We review the trial court's ruling under an unsustainable exercise of discretion standard. See In the Matter of Harvey, 153 N.H. at 425; In the Matter of Conner, 156 N.H. at 252. To establish that the court erred under this standard, the husband must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. In the Matter of Conner, 156 N.H. at 252.

In this case, the trial court ordered the husband to pay the wife's appraiser an initial retainer not to exceed $10, 000 within seven days of her request, and to pay the wife one half of the value of the business, as determined by the appraiser, within 180 days of the release of the appraisal. The husband argues that the trial court unsustainably exercised its discretion in ordering a division of the business with "no mechanism for assuring either the qualifications of the appraiser, the reliability of the appraisal, or the appropriateness of the fees paid to the appraiser" and without affording him an opportunity to present his own business appraisal. We agree. Accordingly, we vacate the trial court's property division and remand for a new trial to determine an equitable property division. Upon remand, the parties shall not be bound by their pretrial agreement not to introduce expert testimony.

The husband next argues that the trial court erred in awarding the wife alimony for ten years and in failing to specify the reasons for its award. To the extent that the award is based upon a finding that the wife is disabled from gainful employment, the husband argues that the evidence fails to support such a finding.

The trial court is afforded broad discretion in determining alimony. In the Matter of Harvey, 153 N.H. at 430. We will not overturn a trial court's decision on such matters unless it is lacking in evidentiary support or tainted by error of law. In the Matter of Fowler & Fowler, 145 N.H. 516, 519 (2000). The trial court shall award alimony if: (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 reasonable needs. In the Matter of Harvey, 153 N.H. at 430; RSA 458:19, I (Supp. 2013). "The trial court shall specify written reasons for the granting or denial of any motion for an alimony allowance." RSA 458:19, VI (2004).

As an initial matter, we note that the uniform support order incorporated into the divorce decree awards alimony for ten years, whereas the court's narrative decree awards alimony for 13 years. Although the narrative order states, "See attached Uniform Support Order, " it is unclear which award controls. Moreover, we are unable to review the court's alimony award because it failed to specify the reasons for its award. See RSA 458:19, VI. Accordingly, we vacate the trial court's alimony award and remand for a new trial on this issue. The trial court shall apply the standard set forth in RSA 458:19, I, to determine whether an award of alimony is appropriate, and it shall apply the factors set forth in RSA 458:19, IV (2004) to determine the amount and duration of any alimony awarded, and it shall specify written reasons for its decision granting or denying alimony. See RSA 458:19, VI.

The husband next argues that there was no evidence to support the trial court's award of child support in the amount of $1, 979 per month. We will uphold the trial court's decision with respect to child support unless it is unsupported by the evidence or tainted by an error of law. In the Matter of Hampers & Hampers, 154 N.H. 275, 283 (2006). In calculating child support, the trial court must first determine each parent's present income. In the Matter of Crowe & Crowe, 148 N.H. 218, 222 (2002); see also RSA 458-C:3, II (Supp. 2013). The trial court makes the final decision as to what income figures should be used in the calculation based upon the facts presented at trial. In the Matter of Crowe, 148 N.H. at 222. In this case, the trial court made no specific finding as to the husband's income. It appears that the court adopted the child support guidelines worksheet prepared by the wife's attorney, in which proposed child support of $1, 979 per month is based upon the husband's monthly gross income of $11, 076 per month. There is nothing in the record to support a finding that the husband's gross income is $11, 076 per month. Although the trial court is not required to accept the husband's testimony as to his income, see id. at 223, the husband's financial affidavit listing his monthly income of $6, 495 and monthly expenses of $11, 076 is insufficient to support a finding that his monthly income is $11, 076. Accordingly, we vacate the court's child support order and remand for the court to determine child support in accordance with RSA chapter 458-C.

The husband next argues that the trial court erred in requiring him to maintain life insurance for the benefit of the wife for the duration of his life. The trial court may, in its discretion, require security for payment of alimony or child support. See In the Matter of Sarvela & Sarvela, 154 N.H. 426, 436 (2006); RSA 458:21 (2004). In this case, the trial court ordered that the husband "shall maintain a life insurance policy in the amount of $250, 000 payable to wife. No change in the beneficiary or the amount of coverage shall be made and no encumbrances shall be placed on the policy." Given our decision to vacate the alimony and child support awards, we also vacate the court's order requiring the husband to maintain life insurance for the wife. In addition, we note that, given that the purpose of an order requiring life insurance is to secure payment of alimony and child support, the trial court erred in requiring the husband to maintain insurance for the duration of his life.

The husband next argues that the trial court erred in valuing the parties' commercial real estate in Derry and lake house in Laconia. He asserts that although the trial court's order refers to an appraisal of the lake house by an "independent appraiser, " no such appraisal was conducted. He also argues that the court erred in dividing the parties' interests in their motor vehicles based upon post-trial appraisals, raising the same procedural concerns that he raised relating to the court's order for the business appraisal. Because we have vacated the trial court's property distribution and remanded for a new trial to determine an equitable property distribution, we need not address these arguments. The husband may address these issues with the trial court on remand.

Finally, the husband argues that the trial court erred in ordering him to pay the wife's attorney's fees. The general rule in New Hampshire is that each party to litigation must pay his or her own attorney's fees. In the Matter of Mallett & Mallett, 163 N.H. 202, 211 (2012). An award of attorney's fees must be grounded upon an agreement between the parties or a judicially-created exception to the general rule. Id. We have held, for example, that an award of attorney's fees is permissible in divorce cases based upon a finding of "need on the part of one party and ability to pay on the part of the other." Id. (quotation omitted). We have also recognized an exception permitting an award of attorney's fees to one party where the other party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons, where the litigant's conduct can be characterized as unreasonably obdurate or obstinate, and where it should have been unnecessary for the successful party to have brought the action." Id. at 211-12 (quotation omitted).

In this case, the trial court did not specify the exception it relied upon to support its attorney fee award. It ordered the husband to pay the wife's attorney's fees based upon his "fail[ure] to communicate and cooperate" with the wife and his "course of conduct designed to frustrate [the wife's] ability to conduct discovery." The court further ordered, however, that if the husband complies with the terms of the final decree, and commits no further discovery violations, then the order to pay the wife's attorney's fees will be vacated. Under these circumstances, and given our decision regarding the other aspects of the decree, the award of attorney's fees is also vacated. Accordingly, the portion of the decree granting the divorce and approving the parenting plan is affirmed; the remainder of the decree is vacated.

Affirmed in part; vacated in part; ...


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