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In re Price

Supreme Court of New Hampshire

June 2, 2017

In the Matter of John Price and Robin Price,

         Issued the following order:

         The petitioner, John Price (husband), appeals the order of the Circuit Court (Weaver, J.) extending an award of alimony to the respondent, Robin Price (wife), for an additional five years, arguing that: (1) the court applied the wrong legal standard; (2) the court's order conflicts with our order in a prior appeal; and (3) the court unsustainably exercised its discretion. We affirm.

         The husband first argues that the trial court applied the wrong legal standard in determining whether to extend the wife's alimony award. We have held that "when an alimony order has terminated and the issue is whether it should be extended or renewed, either in modified or unmodified form, the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount, in the light of all the circumstances then existing." In the Matter of Lyon & Lyon, 166 N.H. 315, 321 (2014) (quotation, brackets, and ellipsis omitted). The trial court's order recites this language from Lyon and applies this standard, specifically noting that the wife "has the burden in this case to establish that justice requires the extension of her alimony award."

         Nevertheless, the husband argues that the court extended the alimony award based upon its findings that: (1) the wife "lacks sufficient income to maintain a lifestyle similar to the lifestyle enjoyed by the parties during the marriage"; (2) the husband "has the ability to pay alimony to the [wife] while maintaining his current lifestyle"; and (3) there exists a "stark contrast" between the parties' respective economic circumstances, "with his situation being much closer to the style of living that the parties had enjoyed during their marriage." He argues that an extension of alimony based upon these findings is inconsistent with the standard set forth in Lyon.

         The record shows that, in addition to the facts noted above, the trial court considered a number of other factors, including the wife's lengthy absence from the workforce, her lack of funds for "savings, contingencies or emergencies, " and her eligibility for social security benefits at age 65. The court described the husband's economic circumstances as being "much closer to the style of living that the parties had enjoyed during their marriage." Therefore, the record does not support his argument that the wife was merely seeking "to share in [his] post-divorce prosperity." Calderwood v. Calderwood, 114 N.H. 651, 652 (1974). Under these circumstances, we conclude that the wife's needs, the husband's ability to pay, and their disparate economic positions were relevant factors in determining what justice required "in light of all the circumstances then existing." In the Matter of Lyon, 166 N.H. at 321. Accordingly, we reject the husband's argument that the trial court applied the wrong legal standard.

         The husband next argues that the trial court's order is contrary to our February 5, 2013 order vacating, in part, the trial court's previous alimony award. In our February 5, 2013 order, we concluded that the trial court's previous alimony award, which awarded alimony for ten years, was not supported by the record, and we vacated the award beyond three years from the date of our order. See In the Matter of John Price and Robin Price, No. 2012-0065 (N.H. February 5, 2013). We noted, however, that the wife could request a renewal of alimony, and that the trial court would then have an opportunity to receive evidence and determine whether a renewal of alimony was necessary.

         The wife requested a renewal of alimony, and on March 24, 2016, the court held a hearing on her request. After considering the testimony of the parties and the husband's vocational expert, and the exhibits submitted at the hearing, the court concluded that justice required an extension of alimony in light of all the circumstances then existing. The husband argues that the trial court's order is contrary to our February 5, 2013 order because "[t]he record before this Court in 2013 and the record before the Trial Court in 2016 was essentially the same."

         Essentially, the husband's position is that the wife had the education, training, and ability to return to work in the chemistry field at the time of the final divorce hearing in 2011, and that the same remained true as of the March 24, 2016 hearing. However, when the wife testified at the 2016 hearing, she was sixty years old and, except for a brief period in 2002, she had not worked in the chemistry field for approximately fifteen years. In addition, she testified that her background is in "analytical environmental chemistry, " and that "[m]ost of the labs have closed in that area." She also testified that she had "applied for chemistry jobs when [she] saw them, " but that "most of the jobs that [she] saw listed for chemistry were for PhD chemists and R&D research."

         Although the husband's expert testified that the wife failed to conduct a diligent job search, and that she was qualified for an entry-level chemistry position, the trial court found the evidence insufficient to show that the wife could obtain employment as an entry-level chemist, given the length of time that she had been out of the workforce. In 2015, the wife obtained full-time employment at the National Passport Center, where she receives $14.21 per hour plus benefits, including health and dental insurance. The court found that the wife's current employment is reasonable, "given her approximately 15 year absence from the field of chemistry and from the workforce in general." Based upon the trial court's findings, we cannot conclude that its order extending alimony for an additional five years is contrary to our February 5, 2013 order.

         The husband next argues that the trial court's five-year alimony extension constituted an unsustainable exercise of discretion. We review a trial court's order extending alimony under our unsustainable exercise of discretion standard. Henry v. Henry, 129 N.H. 159, 161 (1987); State v. Lambert, 147 N.H. 295, 296 (2001). To show that the trial court's decision is unsustainable, the husband must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. See Lambert, 147 N.H. at 296.

         The husband argues that the court's order is inconsistent with alimony's primary purpose, which is rehabilitative. However, "the express language of the alimony statute dictates that alimony awards need not be rehabilitative in all cases." In the Matter of Nassar & Nassar, 156 N.H. 769, 777 (2008). Moreover, we are not persuaded that the court's order is inconsistent with alimony's rehabilitative purpose. See In the Matter of Kempton & Kempton, 167 N.H. 785, 803 (2015) (concluding that an award of alimony for eight years, until wife reached age 65, was consistent with rehabilitative purpose of alimony). The trial court found that the wife obtained reasonable employment, given her fifteen-year absence from the workforce, earning substantially more than minimum wage, plus benefits, and that the alimony extension, "coupled with her expected continued work, [and] additional experience and wage increases, " will allow her to achieve "a level of living that is fair and just given the facts and circumstances of this case." We conclude that these findings are consistent with alimony's rehabilitative purpose. See id.

         The husband also argues that the trial court unsustainably exercised its discretion by extending alimony despite having found that the wife "delayed seeking employment for several years resulting in her being in an entry level position when she could be 3 to 4 years into a position by this time with the expected raises and increased income that would come with that experience." However, a review of the court's order shows that it expressly "factored in" the wife's voluntary unemployment post-divorce, concluding that "higher alimony could be awarded, " but that "the amount of $1, 500.00 per month is fair given the history, employability, and actions of the [wife]." We note that this is a $1, 000 per month reduction from the prior award for the six-month period from May 1, 2016, to November 1, 2016, and a $500 per month reduction for the three-year period from November 1, 2016, to November 1, 2019. We cannot conclude that the trial court unsustainably exercised its discretion in the manner in which it addressed the wife's period of unemployment post-divorce. See Lambert, 147 N.H. at 296.

         The husband also argues that an extension of alimony is unwarranted when, he asserts, the wife would have no need for alimony if she obtained a position in the chemistry field. However, as previously noted, the trial court found the evidence insufficient to show that the wife could obtain employment in the chemistry field, and further found that she obtained "reasonable" employment, "given her approximately 15 year absence from the field of chemistry and from the workforce in general." The record supports the court's findings. See In the Matter of Kempton, 167 N.H. at 792 ("If the trial court's findings can reasonably be made on the evidence presented, they will stand.").

         Finally, the husband argues that he should not be financially responsible for the wife's monthly expenses because, he asserts, many of them could be characterized as discretionary. The record shows that the trial court, after accounting for "a number of expenses that are either discretionary or overstated, " concluded that the wife's reasonable expenses are approximately $3, 800 per month, and that her current income is approximately $2, 400 per month, ...


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