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In re Gray

Supreme Court of New Hampshire

November 4, 2016

In the Matter of Stephanie Gray and Brian Gray

         The respondent, Brian Gray, appeals an order of the Circuit Court (Gorman, J.) denying his request to terminate his alimony obligation to the petitioner, Stephanie Gray. He argues that the trial court erred by determining that, because the petitioner's increased income was anticipated and foreseeable, it did not constitute a substantial change in circumstances rendering the alimony improper or unfair. He further argues that, because the trial court found that the petitioner no longer needs alimony, because the petitioner has received other benefits under the parties' stipulations, and because the parties now earn similar incomes, denying his request was inequitable. We affirm.

         RSA 458:14 (2004) provides: "Except as otherwise provided in RSA 458:19, I and VII, the court, upon proper application and notice to the adverse party, may revise and modify any order made by it, may make such new orders as may be necessary, and may award costs as justice may require." A party seeking to modify an alimony order under this statute must show that a substantial change in circumstances has occurred since the trial court issued that order, and that the change in circumstances renders the current alimony amount either improper or unfair. See In the Matter of Doherty & Doherty, 168 N.H. 694, 701 (2016); Lafond v. Lafond, 119 N.H. 512, 513-14 (1979). A purpose for requiring proof of changed circumstances is to prevent relitigation of issues on the same evidence. Lafond, 119 N.H. at 513-14. Changes that were both anticipated and foreseeable when the parties negotiated a stipulated support order do not constitute a change in circumstances sufficient to warrant modifying the order. Doherty, 168 N.H. at 701; Gnirk v. Gnirk, 134 N.H. 199, 2015 (1991).

         We will not overturn the trial court's denial of a request to modify alimony absent an unsustainable exercise of discretion. In the Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010). We will uphold the trial court's findings and rulings unless they lack evidentiary support or are tainted by error of law. Id.

         The parties divorced in January 2009 by way of a stipulated final decree. Under the terms of the permanent stipulation, the petitioner had the right to occupy the marital home with the parties' two minor children until its sale. The stipulation provided that the marital home would be listed for sale in May 2012, more than three years after the divorce, which was, according to the petitioner, "commensurate with [the parties' oldest child's high school] graduation." Prior to the sale of the home, the respondent was responsible to pay the mortgages encumbering it, and all real estate taxes and insurance costs associated with it. The monthly mortgage amounts totaled $2, 766. Upon the sale of the home, all proceeds were to be awarded to the petitioner, and the respondent would then be obligated to pay her alimony of $2, 000 per month for three years "beginning the first day after the homestead property is sold." With the final decree, the trial court issued a support order providing that the respondent would pay alimony in accordance with the permanent stipulation.

         At the time of the divorce, the respondent was a software developer earning $153, 000 per year, while the petitioner earned approximately $20, 000 per year as an EMT. According to the petitioner, she realized at that time that the respondent would not be able to support her forever, and that she needed to further her education. Thus, she planned to pursue a career as a physician's assistant (PA) by taking course work required to enroll in PA school, and ultimately to enroll in and complete PA school. The petitioner testified that she discussed her plan with the respondent prior to the divorce, and that he was aware of her intent to become a PA at the time he executed the permanent stipulation. She did not, however, have the resources to pay her education costs, and she knew that the respondent could not afford to pay child support and the costs to maintain the marital home while also paying alimony sufficient to finance her education. Thus, according to her testimony, the parties tied alimony to the future sale of the marital home, and her plan was to finance her education through loans, and to use the future alimony "to help offset the costs of the loans because [she] had been a housewife for so many years."

         Following the divorce, the petitioner took course work required to enroll in PA school, and in 2011, she enrolled in a full-time PA program. The respondent was aware that the petitioner had enrolled in PA school, and that she was financing the cost of the program through loans. In August 2012, the respondent asked her if she would "reconsider accepting a reduced amount in alimony" tied to whatever salary she would eventually earn as a PA. Although the petitioner did not agree to renegotiate alimony, the parties did negotiate modifications to the parenting plan and child support in 2011.

         In 2011, the petitioner moved out of the marital home in order to be closer to school, and the parties placed the marital home on the market. However, they were unable to sell it, and in 2012, after approximately a year, they took it off the market, and the respondent moved into it. Subsequently, the petitioner offered to "buy [the respondent] out of the house, " and the parties negotiated modifications to the permanent stipulation.

         In January 2013, the parties executed a "supplemental permanent stipulation" memorializing the modifications. Under its terms, the respondent would occupy the marital home until June 1, 2013, at which time the petitioner would take possession of it. The respondent would execute a quit claim deed conveying his interest in the property to the petitioner by January 31, 2013, and the petitioner would refinance the mortgages by June 1, 2013; by that time, the petitioner would be responsible for all mortgage, tax, and insurance costs related to the property. If the petitioner was unable to refinance the mortgage debt, the home would be placed on the market for sale, and any payments toward the mortgage, insurance, and tax costs by the respondent after June 1, 2013, would be credited against his alimony obligation. With respect to alimony, the supplemental permanent stipulation provided that "[t]he alimony payments referenced in . . . the Permanent Stipulation (i.e. $2, 000.00 per month for three (3) years . . .) shall begin when the former marital home has been successfully refinanced or sold, or on June 1, 2013, whichever first occurs." The trial court approved the supplemental permanent stipulation, and in April 2013, issued a new uniform support order providing that the respondent's alimony obligation would commence on June 1, 2013.

         The petitioner testified that she agreed to refinance the marital home by June 1, 2013, because she would be graduating in May 2013. The respondent was aware that the petitioner would soon be graduating when the parties negotiated the supplemental permanent stipulation. The respondent began paying alimony in accordance with the supplemental permanent stipulation in June 2013, and by the fall of 2013, the petitioner had secured employment as a PA. In 2014, the petitioner earned $103, 726 as a PA.

         The respondent filed the present matter on September 18, 2014, seeking to modify alimony on the basis that the petitioner's increased income constituted a substantial change in circumstances. Following an evidentiary hearing, the trial court denied the petition, reasoning as follows:

[The respondent's] request to modify alimony is based on a change in circumstances. However, at every juncture after the execution of the original stipulation the parties contemplated that [the petitioner] was furthering her education. At varying times following the execution of the original decree the parties contemplated that [the petitioner] was in a [PA] program and that upon graduation would . . . practice as a [PA] at a substantially higher salary than she made as an EMT. Despite this anticipation, the parties' support agreement to pay alimony for 3 years in the amount of $2, 000 never changed. . . .
[The petitioner] now earns over $100, 000 per year. She is financially self-sufficient. Alimony is rehabilitative in nature, and based on a need and ability to pay. Here, [the respondent] remains able to pay, although [the petitioner] no longer has the need. Nevertheless, the parties anticipated the change that has given rise to [the respondent's] petition to modify at the time they executed the final amendment. At the time of the original divorce, the parties recognized that [the petitioner's] financial circumstances may well change prior to the time the alimony payments commenced. At every juncture thereafter the parties knew that [the petitioner] was studying and working toward a degree in a profession that would enable her to earn substantially more income. And at each juncture they agreed to keep the alimony payment the same. Even if the extent of [the petitioner's] increased income was not foreseeable at the time of the original divorce, there has been no substantial change in circumstances that was not foreseeable at the time of the final amendment to the support order. [The petitioner's] financial circumstances were both anticipated and foreseeable. . . .

         Additionally, the trial court granted requested findings of fact that "while the parties were in the process of being divorced, [the petitioner decided] to further her education, " and that "in large measure, the cost of this education was paid for by credit card debt and student loans . . ., and that part of the consideration for the alimony was to assist with respect to the payment of that debt." Thus, although the trial court stated that the petitioner "no longer has the need" for alimony, the evidence supports its ultimate conclusion that under all the circumstances, alimony was warranted. The evidence establishes that the parties contemplated from the time of the divorce that the petitioner would incur education debt to "rehabilitate" herself, and that, notwithstanding her increased income, she would "need" the alimony she had relied upon in incurring that debt in order to satisfy it.

         The respondent moved for reconsideration, arguing that, pursuant to our case law, the foreseeability of a change in circumstances is to be determined at the time of the original divorce decree, and that at the time of the parties' decree in 2009, it was not foreseeable that the ...


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