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In re Husband

Supreme Court of New Hampshire

November 30, 2017

In the Matter of Gregory Husband and Ellen Husband

         Issued the following order:

         The petitioner, Gregory Husband (husband), appeals an order of the Circuit Court (Garner, J.; Cooper, Marital Master) denying his motion to reopen his divorce from the respondent, Ellen Hurst f/k/a Ellen Husband (wife), to modify the property division. He contends that the trial court erred by: (1) not reopening the divorce; (2) making inconsistent findings of fact that were against the weight of the evidence; and (3) awarding the wife attorney's fees. We affirm.

         We first address whether the trial court erred in declining to reopen the divorce to modify the property division. Property distributions or stipulations decreed by a court are not retained under the continuing jurisdiction of the court and will not be modified unless the complaining party shows that the distribution is invalid due to fraud, undue influence, deceit, misrepresentation, or mutual mistake. Shafmaster v. Shafmaster, 138 N.H. 460, 464 (1994).

         We review the trial court's decision regarding modification of a property division under our unsustainable exercise of discretion standard. In the Matter of Aube & Aube, 158 N.H. 459, 466 (2009); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). We will uphold the trial court's decision unless the record does not support it or it is tainted by error of law. Aube, 158 N.H. at 466.

         In this case, the husband argues that he presented evidence of "multiple misrepresentations" sufficient to reopen the divorce settlement. To be actionable there must be misrepresentation of a material fact and justifiable reliance. See Hair Excitement v. L'Oreal U.S.A., 158 N.H. 363, 369 (2009).

         Although the trial court granted the husband's request for findings that the wife: (1) "had undisclosed e-Bay income" that she did not include on her 2012 financial affidavit; and (2) failed to list her PayPal account on her 2012 and 2013 financial affidavits, the husband cannot show that he reasonably relied upon these errors because the record supports that he knew about the assets and receipts of which he now complains at the time of the divorce, two years before his motion to reopen. See DePalantino v. DePalantino, 139 N.H. 522, 525 (1995) (stating that husband's failure to provide details on financial affidavit regarding his pension about which wife knew was not misrepresentation because he complied to best of his ability and believed pension had no value); Labbe v. Labbe, 137 N.H. 53, 56 (1993) (stating that property settlement could not be reopened on basis that, at time of divorce, wife did not know value of husband's pension when husband provided all required information and wife knew pension existed and did not seek information as to its value).

         At the 2012 temporary hearing, the husband's attorney stated that "there is additional income earned by [the wife] that is not listed on her financial affidavit . . . she has an eBay hobby where she goes to yard sales, she goes to auctions, she goes to church fairs, things like that, purchases items and sells them generally for more money on eBay." At the hearing on the motion to reopen the divorce, the husband testified that, at the time of the divorce, he knew about the wife's eBay transactions and that she had boxes of items from yard sales and auctions throughout the house. At the same hearing, the wife testified that, during the marriage, all the money from her eBay transactions was transferred from her PayPal account into the parties' joint account, to which the husband had access.

         The husband argues that, although he knew about the wife's eBay transactions and the boxes of items associated with them, he had no obligation to discover their amount or value because she was obliged to disclose them on her financial affidavits. But see DePalantino, 139 N.H. at 525; Labbe, 137 N.H. at 56. However, regardless of the husband's duty to conduct discovery, he failed to establish that the undisclosed receipts or the value of the items in the boxes were material.

         Although the wife had at times during the marriage received more money from eBay transactions, which she placed into the parties' joint account, the trial court found that, "at the time of the Parties' separation and for the balance of [2012], [her] total trading activities were approximately $700.00, less than $2.00 per day." At the hearing on the motion to reopen, the wife testified that, as of the temporary hearing, her PayPal account contained $92.38. Also at the hearing on the motion to reopen, the husband testified that his discovery had revealed that, when the parties entered into the final stipulation, the PayPal account had a zero balance.

         Similarly, the wife testified that the boxes contained items of no value, which she gave away or donated. She testified that her last eBay transaction prior to the January 2013 final divorce order occurred in October because she had nothing left worth selling. The husband agreed in the final stipulation that the wife would receive all the contents of the boxes, which she testified she included in the valuation of her personal property on her 2012 financial affidavit. The wife testified that she doubted whether overall her eBay transactions netted more than she had paid for the items she purchased.

         We conclude that the wife's alleged omissions on her affidavits were not material. The cases from other jurisdictions upon which the husband relies involved material non-disclosures. See Billington v. Billington, 595 A.2d 1377, 1378-79 (Conn. 1991) (finding husband committed fraud by listing value of real estate on financial affidavit at $225, 000 when he had received written offer for $380, 000 for parcel); Zaino v. Zaino, 818 A.2d 630, 634 (R.I. 2003) (stating that husband's actual assets were "far in excess" of his disclosures during divorce); Franke v. Franke, 674 N.W.2d 832, 847 (Wis. 2004) (stating husband failed to disclose "a material change in the value of the company"); cf. Pospisil v. Pospisil, 757 A.2d 655, 658 (Conn. App. Ct. 2000) (declining to reopen divorce based upon wife's failure to disclose her intent to remarry because it was "a mere expectation and not a certainty").

         The husband argues that the trial court's findings that the wife failed to disclose eBay income and her PayPal account show that she violated: (1) RSA 458:15-b, I (Supp. 2016), which was not enacted at the time of this divorce; (2) Family Division Rule 1.25-A, which requires parties in a divorce to provide each other with financial affidavits as part of mandatory disclosure, prior to the initial hearing; and (3) Family Division Rule 2.16, which requires parties to file financial affidavits prior to a hearing on support or property division.

         However, this is not a situation in which a party failed to complete a financial affidavit. Cf. In the Matter of Rohdenburg & Rohdenburg, 149 N.H. 276, 279 (2003) (stating that trial court committed clear error by accepting incomplete financial affidavit). Rather, the husband contests the accuracy of the wife's affidavits without showing the materiality of her omissions. The wife testified that she completed the financial affidavits to the best of her ability. See Rohdenburg, 149 N.H. at 278 (stating that parties have duty to complete all sections of financial affidavit to the best of their ability).

         To the extent that the husband argues that any violation of the family division's rules requires reopening a property settlement, he does not cite, nor are we aware of, any authority to this effect. See id.; Fam. Div. R. 1.25-A(D)(1) (providing that if party does not provide mandatory disclosure, trial court "may impose sanctions"); Fam. Div. R. 2.16(B) (stating that "[i]ntentional failure to disclose any asset" on financial affidavit is "subject to appropriate action by the Court"); Fam. Div. R. 1.2 ("As good cause appears and as ...


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