Unpublished NH Supreme Court Orders: Family Law #Divorce #Alimony

The #NH #SupremeCourt issued a number of unpublished orders this year, addressing varying aspects of #familylaw practice. This article summarizes those orders and provides you with links for reference. Unpublished orders are not binding precedent, but can be referenced. Per the NH Supreme Court's website:

The court has authorized the publication of these orders for informational purposes only. Readers should be aware that Supreme Court Rule 20(2) states that an order disposing of any case that has been briefed but in which no opinion is issued, shall have no precedential value. ?It provides:

An order disposing of any case that has been briefed but in which no opinion is issued, whether or not oral argument has been held, shall have no precedential value, but it may, nevertheless, be cited or referenced in pleadings or rulings in any court in this state, so long as it is identified as a non-precedential order and so long as it was issued in a non-confidential case; provided however, that an order may be cited and shall be controlling with respect to issues of claim preclusion, law of the case and similar issues involving the parties or facts of the case in which the order was issued. ?See also Rule 12-D(3). All citations to non-precedential orders shall identify the court, docket number and date.

In the Matter of Gerard Letourneau and Patricia Letourneau (February 24, 2023) #Divorce #Decree #PropertySettlement #Modification

The ability of a trial court to modify a final divorce decree is extremely limited (and for good reason). A change in circumstances is insufficient grounds to modify a final decree of divorce. In this case, the trial court modified the timing of the sale of the martial home. The final decree provided the responded with a timeframe in which they could buy out the petitioner's interest in the martial home. The respondent sought to extend the period for a host of reasons, including the petitioner limiting the respondent's access to the home in order to allow them to move forward with the buyout. The trial court granted the extension, and then granted a further extension upon the respondent requesting one at a subsequent review hearing.

The Court held that the adjustment of the deadline to buy out the petitioner's interest was not a modification to the decree. The extension did not affect the petitioner's interest in the home, and would be receiving their portion of the value of the home, regardless of the date of the buyout. In other words - the trial court's adjustment of the dates of performance is not necessarily a modification of the property settlement in a final decree.

In the Matter of Jodi Monroe and Matthew McDonald (February 27, 2023) #Parenting #Relocation #Reunification

In this parenting case, the Court reviewed the trial court's order on the mother's request to relocate with the child. Finding that the relocation was not in the child's best interests, the trial court ordered that if reunification counseling between the father and child commended immediately, and the father started having supervised visits with the child in the next month, the child's best interests could be met with relocation. The Court affirmed this decision, reasoning that while the father had virtually no relationship with the child, he had consistently fought to maintain some kind of relationship with the child. The Court further observed that the mother "had not taken steps to facilitate the father's relationship with the child." In other words, where there is evidence that one parent is pursuing a relationship with a child and the other parent is not taking steps to promote that effort, an adverse inference against the custodial parent may result. This is a cautionary tale for clients, who should remember, the court cares little about the dislike each parent shares for the other when it comes to determining what is in a child's best interests and parenting rights and responsibilities.

In the Matter of Joy Gagnon and Gary Gagnon (April 10, 2023) #childsupport

In this case the court ordered the father to pay child support in the amount of $600 a month. The court reasoned that it might have otherwise ordered no support and shared expenses, there was a history of the father being unable to pay his fair share. The father appealed, arguing that this was not an appropriate consideration. The Court disagreed, holding that it was not error for the trial court to consider the parties' struggle to share child-related expenses, including those for medical and routine care and activities.

The child support statute allows for a upward or downward deviation of guidelines child support based on "special circumstances." The Court reasoned that while not an enumerated consideration, the list of special circumstances is not exhaustive and trial courts may consider anything that is economic in nature and relates to the impact of a parent's financial condition upon their ability to meet a child's needs.

Of note, the court in this case observed that the mother had trouble collecting for reasonable child-related medical expenses and had taken on the role of organizing and paying for routine care and activities for the children. So, if you have a client that doesn't pay their fair share, or plays games and makes it difficult for the other party to receive reimbursement, this case serves as a fair warning.

In the Matter of Shalyn McFadden and Jerry Landry (April 25, 2023) #Relocation #ParentalAlienation #Parenting #ChildCustody

This case is another warning to clients about how courts treat parents they believe are interfering with the child's relationship with the other parent. Here, the court denied the mother's request to relocate from Manchester to Massachusetts. The court found that the following facts made the mother's decision to relocate was not for legitimate purposes:

1. Despite the father's objections, and before the trial court could decide the issue, the mother relocated with the child.

2. The mother had a continued desire to interfere in the relationship between the father and child.

As to fact #2, the court referenced the fact that the court's file was "replete with pleadings in which Mother sought to prevent or complicate father's parenting time." Again, something to be mindful of when litigating a contested parenting case. A party's intention to interfere with another party's parenting, including that which is documented through the pleadings, may be considered in a court's determination of whether a proposed relocation is for a legitimate purpose.

In the Matter of Steven Vallier and Susan Vallier (August 17, 2023) #Divorce #PropertyDivision #MaritalHome #Appraisals

You're getting divorced. Each side gets an appraisal of the martial home and disputes the value of the home. You go to trial and the court finds that the home is worth $150K more than either appraisal. Sound crazy? Maybe, but it happened here.

First, the parties' appraisals were only $5,000 apart. The fact that this was even a disputed issue makes you wonder what these people were thinking. Think about it. They had two appraisers appear to testify - that's not free. They had their lawyers prepare for this part of the trial and then spend time at the trial with the experts. Also, not free. They likely spent what they were fighting over, if not more. Ever heard of "let's meet in the middle"? JK - this is a divorce case and all too often, that's not a thing.

So, onto the issue, did the trial court sustainably exercise its discretion when it gave a value $150K beyond the highest estimate and $155K beyond the lowest? The Court determined that the record supported the trial court's order. The Court also found that the trial court was not required to use a specific appraisal method when determining the fair market value of the property.

In the Matter of Noreen Morgan and Thomas Morgan (September 12, 2023) #Alimony

Much of this order dealt with the court's division of property as it applies to pension plans, (and worth a read), I am going to focus on the court's discussion of the alimony award and its failure to consider the pension award.

The trial court did not subtract from the respondent's gross income for purposes of alimony, the amount of a pension plan that the court order he pay to the petitioner. The trial court also did not add that amount to the petitioner's gross income for the same purpose.

The Court agreed that the pension income was gross income attributable to the respondent, but also observed that the alimony statute permits the trial court to deviate from the statutory formula when it "finds that justice requires an adjustment." The Court found that the trial court should have considered whether the pension award called for an adjustment to avoid double-counting the respondent's pension income (first as part of his gross income for the 23% alimony award, second as part of property distribution). Where the trial court made no findings on this issue, the Court instructed the trial court on remand to consider both of those factors when calculating its alimony award for the petitioner and its evaluation of the distribution of marital property.

In the Matter of Amy Froebel-Fisher and Richard Fisher (September 21, 2023) #Divorce #Notice #DueProcess

This is an important case to be aware of if you come across a situation where the other party (or the court) tries to address an issue that has not been noticed up to the parties. In this case, a divorce action, the parties appeared for a review hearing. At the hearing, the parties presented evidence on various issues contested in the divorce action. At the hearing, the parties presented a stipulated agreement with respect to property division, parenting rights and responsibilities, and child support. The parties also presented evidence in support of the agreement. After the hearing, the trial court issued an order rejecting the stipulated agreement and included a final divorce decree, parenting plan and child support order.

On appeal, the Court affirmed the trial court's rejection of the proposed stipulated agreement. However, the court also found that the court's notice to the parties "was insufficient to fairly inform a reasonable person that a final hearing on the merits in a divorce action would be held on the scheduled date."

The court also found that, based on the record, it was not clear that the court intended to issue final orders after the review hearing. Rather, "a reasonable person would have understood that if the trial judge did not approve the parties' stipulated agreements, then a further hearing would be held."

In the Matter of Johanna Papantones and Mark Papantones (November 3, 2023) #alimony #divorce

This case comes down to one lesson: Draft carefully. Words matter.

In this case, the parties submitted a stipulation to resolve their divorce, including alimony. The alimony stipulation provided that alimony would terminate upon one of several events occurring - relevant to this case, upon the payor's retirement from full-time employment. The payor retired approximately 5 years after the stipulation was approved by the court and ceased paying alimony. The payee filed a petition to enforce the alimony provision and hold the payor in contempt.

The payee argued that because the payor retired at 59, well before the retirement age she envisioned, 67, the stipulation was not being followed. This sounds a bit crazy, right? One party believed that a term, not written into a stipulation, was nonetheless part of the stipulation, and claimed that the other party was violating the terms of the stipulation. Seems a bit of a stretch, but the trial court bought the argument, and while not holding the payor in contempt, awarded the payee back-support and ordered that retirement age for the purposes of the agreement would be 67!

The Court disagreed and reversed. Long and short, the stipulation was clear as day. Instead of setting the termination of alimony based on the payor's age, they chose his employment/retirement status. Had they wanted to set an age, the parties, both represented by counsel, could have.

The court left open the ability to petition to modify the alimony order, and perhaps the payee will be successful thee, but that doesn't change the fact that from the date of retirement (January 2020) to the date that petition gets filed, the payor is not responsible for alimony payments (over $90k at this point based on the alimony award).

Again, be careful about the language in any stipulation you draft. What could the result be if ordered by the court? Is there anything you intend to have happen, or not happen, as a result of the stipulation that won't happen or could happen if the stipulation is followed as written? Any loopholes that could be exploited?