2004-887, IN THE MATTER OF CAROLYN ARVENITIS and CHARLES ARVENITIS

decree to, among other things, terminate his obligation to pay alimony. The In April 2004, the defendant petitio ned to modify the parties’ divorce

week payable weekly, for her support.” to the plaintiff as alimony the sum of Five Hundred dollars ($500.00) per respectively. The final stipulation provided that “[t]he defendant shall pay time, the plaintiff and defendant were fif ty - one and fifty years old divorced pursuant to a stipulated decree dated March 10, 1992. At that The following facts appear on the record before us. The parties were

to the plaintiff, Carolyn Arvenitis. We vacate and remand. the Superior Court (Fitzgerald, J.) denying his petition to terminate alimony NADEAU, J. The defendant, Charles Arvenitis, appeals a decision of

orally), for the defendant. Patti Blanchette, P.A., of Portsmouth (Patti Blanchette on the brief and

Briana Coakley - Hoyt on the brief, and Mr. Shaines orally), for t he plaintiff. Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and

No. 20 04 - 887 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 goes to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

correctly ruled that the defendant’s voluntary retirement would not be a contends, however, that any error was harmless because the trial court for weekly payments o f $375, not $575 as found by the trial court. The plaintiff the stipulation provided to us plainly shows that the original language provided According to the record before us, the defendant is correct – the copy of

wrong.” ability to seek an increase in alimony in return for alimony for life is simply that [the plaintiff] gave up an increased amount of alimony, as well as her from $375 to $500 per week. He then contends that the trial court’s “finding the amount of alimony from $575 to $500 per week, but rather increased it modifications to the stipulation referred to by the trial cou rt did not reduce the trial court erred because it misread the crossed - out language -- the unsustainable exercise of discretion standard). The defendant argues that 5 p. 2 24, 527 (1999); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion. See Laflamme v. Laflamme, 144 N.H. We review an order on a motion to modify a support obligation for an

well as her ability to seek an increase in return for alimony for life. mean that petitioner gave up an increased amount of a limony as support and placed a period there. The court construes this to the alimony to $500.00 per week and crossed out all words after During negotiation of the final language, the parties reduced

that time upon petition of the plaintiff. without prejudice to its renewal or modification at such order to be effective for a period of 3 years $575.00 per week payable weekly for her support, The Defendant shall pay to the Plaintiff (as alimony)

The final stipulation contained the following or iginal language:

In addition, the court’s order states:

he would retire.” was not aware[, at the time the stipulation was executed,] of the fact that Sp ecifically, the court found that the defendant could not “claim that he unfair.” Giles v. Giles, 136 N.H. 540, 546 (199 p. 2 2) (quotation omitted). initial award, making the current support amount either improper or to prove “that a substantial change in circumstances ha[d] arisen since the The trial court denied the defendan t’s petition, finding that he failed

August and was planning to retire. defendant alleged that he would be turning sixty - three years old that p. 3 3

court refused to hear evidence regarding the parties’ circumstances. fa ct, the defendant represents, and the plaintiff does not dispute, that the trial divorce,” and the trial court made no specific factual finding to the contrary. In defendant represents that his retirement “was not anticipated at the time of the petition to terminate alimony, was silent on the issue of retirement. The circumstances. The stipulation in this case, executed twelve years prior to the foreseeability alone takes voluntary retirement out of the realm of changed The trial court’s order appears to be based on a premise that

(emphasis added). obligor spouse experienced “were foreseeable a nd actually anticipated.” Id. the marital assets.” Id. at 528. We noted that the post - divorce changes the plaintiff alimony in exchange for his receipt of substantially more than half of that he would be retiring in a few years,” yet nevertheless “agreed to pay the did not dispute on the record before us, “that he knew at the time of the divorce modification of alimony where the trial court had found, and the obligor spouse Laf lamme should not be construed so broadly. There, we reversed the “reasonably anticipated to occur in the future.” Laflamme, 144 N.H. at 527. circumstances justifying a termination of alimony because it can always be to mean that voluntary retirement can never constitute a substantial change in termination of alimony.” The trial court appears to have interpreted Laflamme voluntary retirement may ever be a factor to be considered in a request for The defendant asks us, in part, to “address the question of whether

sufficient to warrant modification of an alimony award.” Id. at 528 - 29. decree cannot rise to the level of a substantial change in circumstances party’s condition that are both anticipated and foreseeable at the time of the future.” Laflamme, 144 N.H. at 527. We further stated that “[c]hanges to a future facts or circumstances known or reasonably anticipated to occur i n the to the parties and the court at the time the court issued the decree, along with stipulations “must be interpreted in light of the facts and circumstances known In Laflamme, we clarified that the divorce d ecree and incorporated

circumstances of the parties, including the terms of the stipulation.” Id. at 625. should be modified, “the trial court must take into account all of the N.H. 620, 624 (1992). When making the determination whether an order upon a proper showing of changed circumstances.” Norberg v. Norberg, 1 p. 3 35 provision grants the trial court the “power to modify orders concerning alimony as may be necessary, and may award costs as justice may require.” This party, may revise and modify any order made by it, may make s uch new orders 458:19, I and VII, the court, upon proper application and notice to the adverse RSA 458:14 (2004) provides that “[e]xcept as otherwise provided in RSA

obligation. substantial change in circumstances that would ju stify terminating his alimony p. 4 4

reasonable, the court must consider the payor’s age, health, In determining whether a voluntary retirement is warrant a modification of alimony. in determining if sufficient changed circumstances exist to reasonable re tirement as part of the total circumstances in that regard should not preclude consideration of a of retirement in an agreement or final judgment, . . . silence consideration of retirement and what will happen in the event Although it would be a better practice to incorporate

alimony. We agree with the Supreme Court of Florid a that: constitutes a substantial change in circumstances justifying a termination of retirement, alone or in conjunction with other changes alleged by the defendant, not both actually anticipated and f oreseeable, it will have to determine whether Should the trial court, on remand, find that the defendant’s retirement was

hearing. anticipated at the time of the divorce, we vacate and remand for an evidentiary and make a factual finding as to whether the defendant’s retirement was actually hearing will normally be required. Because the trial court failed to hear evidence evidence. If there is any genuine dispute as to the material facts, an evidentiary “actually anticipa ted,” id. at 528, is a factual finding that must be based on alimony. Id. at 528 - 29. A determination that a change in circumstances was constitute a substantial change in circumstances warranting a change in that is “both anticipated and foreseeable at the time of the decree” does not cases. We therefore reiterate that under Laflamme, a change in cir cumstances placed on Laflamme could potentially overlook the equities of this and other 1 p. 4 44 N.H at 528. We believe that the interpretation the trial court appears to have master and the trial court had “overlooked the equiti es of the case.” Laflamme, Finally, we note that our overarching concern in Laflamme was that the

negotiated.” Gnirk, 13 p. 4 4 N.H. at 20 p. 5 5. Morrill to cover events which are merely possibilities at the time a stipulation is children was ‘fully foreseeable’” at the time of the divorce “inappropriately extends argument “that the potential for incurring college expenses for the parties’ justifying a modification of child support. Specifically, we stated that the divorce stipulation did not constitute a substantial c hange in circumstances that were “fully foreseeable” to the parties at the time they negotiated their Millard (Morrill), 132 N.H. 685, 689 (1990), which held that increased expenses reasonably foreseeable at the time of divorce. We refused to extend Morrill v. oldest child would make the decision to attend college, college expenses were not (1991), we held that where the parties divorced four years prior to the time their than we have under similar circumstances. In Gnirk v. Gnirk, 134 N.H. 199, 205 Moreover, the trial court applied the concept of foreseeability more broadly 5

BRODERICK, C.J.