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In re Sweatt

Supreme Court of New Hampshire

October 27, 2017

IN THE MATTER OF PATRICIA SWEATT AND ARTHUR SWEATT

          Argued: May 16, 2017

         7th Circuit Court - Dover Family Division No. 2016-0296

          TW Stevens Law Firm, PLLC, of Portsmouth (Todd W. Stevens on the brief and orally), for Kathleen Paine, administrator of the estate of Patricia Sweatt.

          Greene and Greene, PLLC, of Dover (David J. Greene on the brief and orally), for the respondent.

          HICKS, J.

         The respondent, Arthur Sweatt, appeals orders of the Circuit Court (Lemire, J.) denying, in relevant part, the respondent's motions to reconsider certain orders in his divorce from Patricia Sweatt. He argues the court erred: (1) in denying his motion to abate the divorce; (2) in granting the motion of petitioner Kathleen Paine, administrator of the estate of Patricia Sweatt, to amend by substitution; (3) in distributing the marital property more than six months after the dissolution of the marriage; (4) in finding him, but not Paine, to have been non-compliant with court rules; (5) by denying him due process and equal protection of the law; and (6) in its valuation of the marital real property. We affirm.

         The record supports the following facts. The respondent married Patricia Sweatt on August 8, 1978. In April 2015, after 36 years of marriage, Patricia Sweatt filed for divorce on the ground of irreconcilable differences. She filed an expedited motion to bifurcate on June 30, 2015, stating that she would likely pass away soon due to her deteriorating health. The respondent objected, and a hearing was held on the motion. Patricia Sweatt appeared telephonically as did her daughter and attorney-in-fact, Kathleen Paine, with whom Patricia Sweatt was living in Colorado at the time.

         The Trial Court (Foley, J.) entered a bifurcated divorce decree on July 31, 2015, decreeing that Patricia Sweatt and the respondent were divorced and instructing the clerk's office to schedule a final hearing on the division of assets. Neither party filed a motion for post-decision relief pursuant to Family Division Rule 1.26F or appealed the bifurcated divorce decree to this court.

         Patricia Sweatt passed away on September 24, 2015. The respondent moved to continue the final hearing, alleging that an administrator had yet to be appointed for her estate. The final hearing was converted to a pretrial conference. At the time of the pretrial conference, Paine had not been appointed as administrator of the estate, and she had not been substituted as a party on behalf of the estate in the proceedings. Paine's appointment was delayed in the probate division.

         The trial court held a telephonic conference on February 16, 2016, during which the respondent argued for the first time that the doctrine of abatement applied. The court declined to rule on the respondent's argument until he properly raised and briefed the issue. On February 19, 2016, the respondent filed a motion requesting that the court abate the divorce proceeding. Paine objected, arguing that abatement did not apply because the parties were divorced upon entry of the bifurcated divorce decree prior to Patricia Sweatt's death. The court denied the respondent's motion.

         On February 25, 2016, Paine filed a motion asking the court to substitute herself, as administrator of the estate, for Patricia Sweatt. The trial court granted the motion. Paine was appointed as administrator of the estate by the probate division on March 2, 2016.

         On March 3, 2016, the day of the final hearing, the respondent moved for reconsideration of the trial court's order denying his motion for abatement and of the trial court's order granting Paine's motion for substitution. The trial court denied the motion. The respondent did not file a proposed final decree or a financial affidavit prior to the final hearing., The respondent submitted a financial affidavit during the course of the final hearing, only after the trial court instructed him, from the bench, to complete and submit the affidavit during a break in the final hearing. The trial court afforded the respondent additional time to supplement the financial affidavit after it was revealed through his testimony that he had not disclosed all of his assets on the affidavit.

         On April 1, 2016, the trial court issued a final order, finding that the respondent had not complied with certain court rules, but nonetheless finding that an equal division of the marital estate was equitable.

         I. ...


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