Argued: May 24, 2017
Circuit Court-Brentwood Family Division
Cleveland, Waters and Bass, P.A., of Concord (William B.
Pribis on the memorandum of law and orally), for the
A. Macoul, of Salem, by brief and orally, for the respondent.
respondent, Harry Dow, IV, appeals an order of the Circuit
Court (Greenhalgh, J.) requiring him to pay alimony
to the petitioner, Leslie Dow, in the amount of $750 per
month for three years. When it calculated the amount of
alimony, the trial court declined to impute income to the
petitioner, concluding that it had no authority to do so
under RSA 458:19 (Supp. 2016). On appeal, the respondent
argues, among other things, that the trial court erred
because RSA 458:19 authorizes the imputation of income for
the purpose of determining the amount of alimony. We agree
with the respondent and, therefore, vacate and remand.
record supports the following facts. The parties were married
for over thirty years. For much of the marriage, the
petitioner worked at a preschool in Massachusetts, and the
respondent worked for a local carpenters' union. In 2010,
the parties agreed that the petitioner should leave her
position, where she was earning approximately $21 per hour,
to spend time with the parties' grandchildren. In October
2013, the respondent's employment with the union ended,
and he began receiving unemployment benefits.
parties divorced in April 2014. In their stipulated divorce
decree, the parties agreed that the respondent had no ability
to pay alimony, and that, once he obtained new employment,
the petitioner could request alimony.
October 2014, the respondent started a business.
Subsequently, the petitioner filed a motion requesting
alimony, alleging that the respondent was earning sufficient
income through his business. The respondent objected, arguing
that the petitioner had "failed to take . . . meaningful
action to become self-sufficient" and had "the
ability to generate sufficient income . . . to provide for
her own reasonable needs." At the hearing on the motion,
the respondent argued that the trial court should consider
both the fact that the petitioner had been earning $21 per
hour at her previous position, and the lack of evidence that
the petitioner had made diligent efforts to obtain employment
after the divorce.
trial court granted the petitioner's motion and ordered
the respondent to pay $750 per month for a period of three
years. Although the court determined that the petitioner
could not be fully self-supporting, it also found that she
was "capable of . . . contributing to her own
support" and had "failed to take . . . meaningful
action to become self-sufficient." The trial court
declined to impute income to the petitioner, however,
concluding that it had no authority to do so under RSA
458:19. Specifically, the court stated, "[RSA 458:19,
IV(e)] provides a basis for imputation of income for alimony
purposes and [is] applicable to the obligor only. Therefore I
cannot impute income to the [p]etitioner." The trial
court denied the respondent's motion for reconsideration,
and this appeal followed.
appeal, the respondent argues, among other things, that the
trial court erred when it ruled that it had no authority,
under RSA 458:19, to impute income to the petitioner. Because
we agree that a trial court has the statutory authority to
impute income when it determines the amount of alimony, we
need not address the respondent's other arguments.
review the trial court's statutory interpretation de
novo. In the Matter of Lyon & Lyon, 166
N.H. 315, 318 (2014). In matters of statutory interpretation,
we are the final arbiter of the legislature's intent as
expressed in the words of the statute considered as a whole.
Id. When examining the language of a statute, we
ascribe the plain and ordinary meaning to the words used.
Id. We interpret legislative intent from the statute
as written and will not consider what the legislature might
have said or add language that the legislature did not see
fit to include. Id. Further, we interpret a statute
in the context of the overall scheme and not in isolation.
458:19, IV(b) (Supp. 2016) provides:
In determining the amount of alimony, the court shall
consider the length of the marriage; the age, health, social
or economic status, occupation, amount and sources of income,
the property awarded under RSA 458:16-a, vocational skills,
employability, estate, liabilities, and needs of each of the
parties; the opportunity of each for future acquisition of
capital assets and income; the fault of ...