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In re Nerbonne

Supreme Court of New Hampshire

October 24, 2014

In the Matter of Lori Nerbonne and Robert Nerbonne,

The respondent, Robert Nerbonne (husband), appeals the circuit court's final decree of divorce from the petitioner, Lori Nerbonne (wife), and certain post-decree orders, arguing that the trial court erred in: (1) dividing the marital property and awarding alimony; (2) allowing the wife's vocational expert to testify and relying upon the expert's testimony; (3) ruling that the parties' irrevocable trust is not a marital asset; (4) structuring the alimony award so as to penalize him for filing an appeal; (5) issuing a restraining order against him when the wife never sought one; (6) finding him in contempt for not making a payment that was not due according to a prior court order; (7) failing to consider the tax consequences of the wife's unilateral tax filing; (8) ordering post-trial discovery; (9) awarding him an option to purchase the parties' Florida real estate rather than a right of first refusal; (10) finding him in contempt for failing to pay alimony; (11) requiring him to execute deeds to marital property before the decree becomes final; and (12) ordering discovery to remain open while the appeal is pending. We affirm in part, reverse in part, vacate in part, and remand.

The husband first argues that the trial court erred in its division of property and award of alimony. We afford the trial court broad discretion in determining matters of property distribution and alimony 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 will not overturn a trial court's decision on these matters absent an unsustainable exercise of discretion. Id. 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 & Conner, 156 N.H. 250, 252 (2007).

"RSA 458:16-a, II creates a presumption that equal distribution of marital property is equitable." In the Matter of Sarvela & Sarvela, 154 N.H. 426, 430 (2006) (quotation omitted). "Absent special circumstances, the court must make the distribution as equal as possible." Id. "The statute 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 needs of the custodial parent, the contribution of each party during the marriage and the value of property contributed by each party." Id. (quotation omitted); see RSA 458:16-a, II (2004). "Additionally, the court may consider any other factor it deems relevant in equitably distributing the parties' assets." Id. at 431; see RSA 458:16-a, II(o).

In this case, the parties dispute the degree to which the trial court deviated from an equal property distribution. The husband argues that the wife received approximately seventy percent of the marital estate, while the wife argues that she received approximately sixty percent of the estate. There is no dispute that the wife received a greater share of the parties' sizable estate, which includes the marital home in Bow, a vacation home in Sanbornton, two rental properties in Concord, a rental property in Tampa, Florida, retirement accounts, and trust assets, the total value of which the wife estimates to be approximately 3.3 million dollars.

The parties had been married for more than twenty-seven years when they separated in September 2011. They have three children, only one of whom was still a minor at the time of the final hearing. The wife is a registered nurse who worked full time until their first child was born, when she reduced her work schedule. She left the workplace after their third child was born in order to stay at home and raise the children. The husband was the primary wage earner during the marriage. When the parties married, he was working at Pitco Frialator, where he started as an accounting manager and was promoted to controller. In 1986, he left the company to pursue self-employment in the construction industry, and, in 1988, he returned to Pitco Frialator as a vice president. He was promoted to general manager and then president. During his career, he has held several senior executive positions, including president and chief executive officer, in a number of large companies in the food service equipment industry. He earned income of $545, 373 in 2007, $2, 507, 533 in 2008, $999, 270 in 2009, and $791, 750 in 2010.

The husband's employment required extensive travel, both domestic and international, which became a source of conflict for the parties. In September 2010, the wife told the husband that she would work on the marriage as long as he changed jobs so that he would not have to travel as much. The husband subsequently informed his employer, The Ali Group, that he was no longer able to travel. The husband testified that although his employer agreed to this arrangement on a trial basis, on September 1, 2011, his superior told him that the arrangement was not working. The husband told his wife that he was concerned about his employment security, and in a telephone call the following week, the husband was informed that the company was "going to make a change." On September 22, 2011, the wife filed for divorce, and in October, the husband was terminated. From the time he was terminated in October 2011 until the time of the final hearing in August 2012, the husband was unemployed. He received a substantial severance payment, which the parties used to pay living expenses. He testified that he was waiting for the divorce to become final before deciding how much money he needed to earn and what type of employment he would seek.

In her proposed decree, the wife requested alimony of $1, 000 per month. She sought an order requiring the husband to notify her of any change in his employment status and to document his income. She proposed that both parties should have the right to request a further hearing on alimony. The trial court credited the testimony of the wife's expert, Dennis King, a vocational rehabilitation counselor, who opined that within three to six months, the husband would be able to find a position comparable to the position he held as CEO of North America for The Ali Group, earning a comparable salary. In 2010, his last full year of employment with The Ali Group, the husband earned nearly $66, 000 per month. Accordingly, the trial court found that "[i]t would be reasonable to impute at least $66, 000 per month as income after August 1, 2013, based upon the testimony by the parties, and the experts." The trial court awarded the wife alimony of $1, 000 per month from August 20, 2012, through August 1, 2013, "and then $5000 per month until 36 months after the Decree is final." In dividing the property and awarding alimony, the trial court ruled that:

[the husband's] lack of income meant that the amount of child support and alimony [the wife] would have been awarded is reduced. She will not be able to support herself at the level the parties enjoyed during the marriage. Because of that it would be equitable for her to be awarded a larger share of the marital estate.

The husband argues that the trial court unsustainably exercised its discretion because it awarded the wife a greater share of the marital estate to compensate her for the reduction in alimony resulting from his unemployment, while at the same time awarding her $5, 000 per month in alimony starting August 1, 2013, based upon imputed income of $66, 000 per month. We agree with the husband that the trial court unsustainably exercised its discretion, effectively "double counting" for the husband's loss of income by awarding the wife a larger share of the estate and imputing income to him for the purpose of its alimony award. Accordingly, we vacate the trial court's property division and alimony award and remand for further proceedings consistent with this order.

The husband next argues that the trial court erred in allowing the wife's vocational expert to testify and in relying upon his testimony. We review the trial court's decision on the admissibility of evidence under our unsustainable exercise of discretion standard. In the Matter of Hampers & Hampers, 154 N.H. 275, 280 (2006). Expert testimony is admissible if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.H. R. Ev. 702. Thus, expert testimony must rise to a threshold level of reliability to be admissible. Baxter v. Temple, 157 N.H. 280, 284 (2008). RSA 516:29-a (2007) codifies the standard for admissibility of expert testimony. Id.

Assuming, without deciding, that RSA 516:29-a applies in divorce proceedings, we cannot conclude that the trial court unsustainably exercised its discretion in admitting King's testimony. King testified that he had approximately thirty years of experience in the field of vocational rehabilitation counseling. He testified that he reviewed the husband's education and work history, that he analyzed the husband's transferrable job skills using standardized vocational procedures, and that he reviewed current market data to determine the availability of positions suitable for the husband. He opined that, within three to six months, the husband would be able to find a position comparable to the position he previously held, earning a comparable salary.

The husband argues, among other things, that King failed to conduct sufficient research, failed to provide specific salary information for the available positions, and failed to provide data to show that his suggested methods for obtaining such positions would be successful. Having considered these and the husband's other challenges to King's testimony, we conclude that they go to the weight of the expert's opinion, not its admissibility. See Laramie v. Stone, 160 N.H. 419, 427 (2010). The appropriate method of testing the basis of an expert's opinion is by cross-examination, see id., and the record shows that the husband raised these issues in his extensive cross-examination of the wife's expert. The trial court was in the best position to assess the credibility of the witness and weigh the evidence before it. In the Matter of Peirano & Larsen, 155 N.H. 738, 752 (2007). Based upon this record, we cannot conclude that the trial court unsustainably exercised its discretion in admitting and relying upon the testimony of the wife's expert witness.

The husband next argues that the trial court erred in ruling that the 1998 Nerbonne Family Trust is not marital property. "[T]he trial court first determines, as a matter of law, what assets are marital property under RSA 458:16-a, I, and thus subject to equitable distribution, and then exercises its discretion to make an equitable distribution of those assets." Chamberlin, 155 N.H. at 16. "Trial court determinations under RSA 458:16-a, I, are reviewed de novo, while equitable divisions of property pursuant to RSA 458:16-a, II are reviewed for an unsustainable exercise of discretion." Id. Thus, our review of whether the 1998 Nerbonne Family Trust is marital property is de novo.

"[Marital] [p]roperty shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties." RSA 458:16-a, I (2004). Contrary to the wife's assertions and the trial court's findings, the trust in this case bears little similarity to the trust at issue in Tamposi, which we concluded was not a marital asset. See In the Matter of Goodlander & Tamposi, 161 N.H. 490, 495 (2011). In Tamposi, the wife was the beneficiary of a family sub-trust established by her father, which was funded by distributions from a separate trust, the assets of which were controlled and managed by investment directors, the wife's brothers. See id. at 496. The trustee of the sub-trust had the sole discretion to distribute those funds to the trust beneficiaries for their "education and maintenance in health and reasonable comfort." Id. We concluded in that case that "[a] beneficiary is thus twice removed from access to the trust assets – first, by the investment directors' discretion in making ...

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