IN THE MATTER OF KELI ECKROATE-BREAGY AND PAUL BREAGY
Argued: April 13, 2017
Marshall Law Office, PLLC, of East Kingston (Keri J. Marshall
on the brief), and Law Offices of Sharon J. Rondeau, of
Exeter (Sharon J. Rondeau orally), for the petitioner.
Russman Law Offices, of Exeter (Amy C. Connolly on the brief
and orally), for the respondent.
petitioner, Keli Eckroate-Breagy, appeals an order of the
Circuit Court (Luneau, J.) denying her motion to
reopen the property distribution decreed in her divorce from
the respondent, Paul Breagy. She filed the motion after the
respondent received two inheritances. She also appeals the
trial court's refusal to compel answers to her discovery
requests about the inheritances. We affirm.
trial court found, or the record supports, the following
facts. The parties were married in 2000. The petitioner,
citing irreconcilable differences, petitioned for divorce in
2013. After a contested hearing, the trial court issued a
decree on August 19, 2014. The petitioner appealed the
property distribution and the amount and duration of alimony
set forth in the decree. On July 13, 2015, we affirmed the
decree, and a mandate issued on July 27, 2015. During the
pendency of the appeal, the respondent received inheritances
from two family members.
April 3, 2015, while the appeal was still pending, the
petitioner moved in the trial court to compel the
respondent's disclosure of the inheritances that he had
received. On April 14, 2015, she moved to reopen the property
distribution. The respondent moved to dismiss the motion to
reopen, and objected to the motion to compel. The trial court
denied the motion to reopen on June 21, 2016, reasoning that
marital property ceases to accrue after the issuance of a
final decree, regardless of whether the decree is appealed.
The trial court also noted that to hold otherwise "would
create an incentive to appeal all Decrees."
Alternatively, the trial court found that, even if the
inheritances were marital property, the motion did not allege
sufficient grounds to reopen the property distribution
because it did not allege fraud, undue influence, deceit,
misrepresentation, or mutual mistake. This appeal followed.
first address the respondent's argument that we should
dismiss this appeal or, alternatively, strike portions of the
petitioner's brief on the grounds that the petitioner has
not provided certain transcripts and that her brief does not
contain necessary references to the record. The respondent
asserts that these failures violate New Hampshire Supreme
Court Rules 13(2) and 16(3). Notably, the respondent does not
claim that he did not receive proper notice of the issues
raised on appeal nor that the issues on appeal were not
preserved. Rather, the respondent argues in summary fashion
that the defects in the petitioner's brief "severely
prejudiced [his] ability to respond meaningfully to [the
respect to the transcripts, we conclude that they are not
"necessary for the court to decide the questions of law
presented by the case." Sup. Ct. R. 13(2). We
therefore decline to dismiss the appeal or to strike portions
of the petitioner's brief as a result of their absence.
The respondent is correct that, in the petitioner's
brief, the questions presented for review and the statement
of facts fail to reference the record. See Sup. Ct.
R. 16(3)(b), (d) (respectively requiring parties to make
reference in the brief to the record after each statement of
a question presented and to the record or appendix within the
statement of facts). However, the record establishes that the
issues raised on appeal were presented to the trial court,
and the parties do not dispute the trial court's relevant
factual determinations on appeal. The record is, thus,
sufficient to decide the questions of law in this case.
Moreover, the respondent thoroughly addressed the issues on
appeal in his brief. Therefore, we conclude that he was not
prejudiced and that to strike portions of the
petitioner's brief under these circumstances would
elevate form over substance. See Holt v. Keer, 167
N.H. 232, 239 (2015) (concluding that, because issues raised
on appeal were, in fact, before the trial court,
petitioner's failure to cite references to record in
brief did not require court to strike brief). We decline to
do so. Nonetheless, we caution parties to adhere to Rule 16.
See Sup. Ct. R. 16(3)(b), (d).
turn to the petitioner's argument that the trial court
erred in denying her motion to reopen the property
distribution. On appeal, the petitioner argues that, while
her first appeal was pending, the parties were still married
because, although the divorce decree was issued in August of
2014, it was not final until our mandate issued on July 27,
2015. Therefore, she concludes that the inheritances that the
respondent received during the pendency of the appeal were
marital property subject to equitable division under RSA
458:16-a (2004). As a result, the petitioner also contends
that the trial court's failure to compel discovery
regarding the inheritances was an unsustainable exercise of
the petitioner's claim that the inheritances were marital
property requires us to engage in statutory interpretation.
We review a trial court's interpretation of a statute
de novo. See In the Matter of Ross &
Ross, 169 N.H. 299, 301 (2016). "We are the final
arbiter of the legislature's intent as expressed in the
words of the statute considered as a whole."
Id. at 301-02 (quotation omitted). "We
interpret legislative intent from the statute as written, and
we will not consider what the legislature might have said or
add words that the legislature did not include."
Id. at 302 (quotation omitted). Moreover, "we
interpret statutes in the context of the overall statutory
scheme and not in isolation." Id. (quotation
and brackets omitted).
I of our marital property settlement statute, RSA 458:16-a,
states that "[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. Paragraph II sets forth the timing for the
equitable distribution of marital assets: "When a
dissolution of a marriage is decreed, the court may order an
equitable division of property between the parties." RSA
458:16-a, II. As we have explained, "[w]hen read in
conjunction, paragraphs I and II show the legislature's
intention that marital property includes any property
acquired up to the date of a decree of legal separation or
divorce." Holliday v Holliday, 139 N.H. 213,
215 (1994); see RSA 458:16-a, I, II.
RSA 458:16-a, I, the trial court first determines, as a
matter of law, what assets are marital property and thus
subject to equitable distribution, and then exercises its
discretion to make an equitable distribution of those assets.
In the Matter of Goodlander & Tamposi, 161 N.H.
490, 495 (2011). Trial court determinations under RSA
458:16-a, I, as to what assets are marital property are
reviewed de novo. Id. Thus, we review the
trial court's determination that the respondent's
inheritances are not marital property de novo.
plain language of RSA 458:16-a makes clear that marital
property shall be accrued up to the point when a
"dissolution of a marriage is decreed." RSA
458:16-a, II. Although generally a decree issued by the trial
court does not go to final judgment if a timely appeal is
taken, In the Matter of Nyhan & Nyhan, 151 N.H.
739, 745 (2005), the plain language of the statute stops the
accrual of marital property when a "dissolution of a
marriage is decreed, " not when the decree
becomes final or effective. RSA 458:16-a, II (emphasis
added). Thus, property acquired by either party after the
date that the divorce decree is issued is not marital
property. Our holding is bolstered by public policy, as
evinced in RSA 490:14-a (2010), which discourages appeals
"intended for delay." See Heath v. Heath,
85 N.H. 419, 422 (1932) (explaining that "[s]tatutes and
decisions are admittedly sources of the ascertainment of
public policy"). ...