2004-106, IN THE MATTER OF JOYCE K. NYHAN AND WILLIAM J. NYHAN

of money to equalize the distribution of the parties’ remaining assets. the OENE assets, the respondent was ordered to pay the petitioner a fixed sum an equal, basis. In addition to being ordered to pay the petitioner her share of marital asset that the trial court sought to divide on an equitable, rather than respondent was to receive 55%. The OENE stock sale proceeds were the only the respondent’s Office Environments of New England (OENE) stock, and the petitioner, Joyce K. Nyhan, was to receive 45% of the proceeds from the sale of divorce decree. See id. at 769. The decree provided, in relevant part, that the The following facts are undisputed. In July 2000, the trial court issued a

Matter of Nyh an and Nyhan, 147 N.H. 768 (2002). We affirm. of the Brentwood Family Division (Maher, J.) following remand. See In the BRODERICK, C.J. The respondent, William J. Nyhan, appeals an order

orally), for the respondent. Wig gin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

brief and orally), for the petitioner. McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the

No. 2004 - 106 Brentwood Family Division

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 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial 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

Family Division’s notice of this Order. $1,7 p. 2 29,309 to the petitioner within ten (10) days of the date of the taken. As such, the Court ORDERS that the r espondent pay . . . owed to the petitioner since May of 2000 will be lost if action is not since the original decree, the Court is concerned that the money has already lost significant sums of money in the stock market that he owes the petitioner $1,792,309. Given that th e respondent respondent, through his own testimony and evidence has conceded following the remainder of the evidentiary hearing. However, the The issue surrounding the interest will be finally addressed $2,600,000. equitable in this case and in addition, [that] she is owed another The petitioner objects and argues that an award of interest is certain offsets, the petitioner is only owed another $1,792,309. 2000 is not equitable, the respondent also argues that due to Along with arguing that an award of interest from May 18, has been paid to [the petitioner]. $4,600,000 as of May 18, 2000. To date, $2,000,000 of this award 45% of certain assets. The parties agree that this amount is By way of brief background, the peti tioner was originally awarded

hearing already conducted.” The order provided, in relevant part: “based on that which was undisputed during that portion of the [remand] other relief. In late September p. 2 2003, the trial court issued an interim order, motion to prohibit the further dissipation of assets by the respondent and for Before the multi - day remand hearing concluded, the petitioner filed a

77 p. 2 2. so, at what rate to achieve an equitable division of the marital assets. Id. at to determine whether interest should be awarded under RS A 458:16 - a, and if petitioner interest under RSA 336:1, and remanded the case to the trial court at 771. Accordingly, we vacated the portion of the divorce decree awarding the 336:1 did not apply to property divi sions under RSA 458:16 - a (2004). See id. In Nyhan we held, among other things, that statutory interest under RSA

769 - 70. The respondent appealed. See id. at 770. post - decree motions and the possibility of an appeal to this court. See id. at for the delay in distributing the marital property due to both the res pondent’s decree to award interest pursuant to RSA p. 3 336:1 (Supp. p. 2 2004) as compensation See id. The trial court granted the petitioner’s request, amending the divorce reconsider, including a request for interest on h er share of the OENE assets. several motions before the trial court ruled on the respondent’s motion to the petitioner her share of the OENE assets. See id. The petitioner filed The respondent filed a motion to reconsider the decree and did not pay 3

authority to order him to pay the petitioner $2,600,000 within ten days of the affording him a hearing. Finally, he asserts that the trial court lacked on the petitioner’s motion to prohibit further dissipation of assets without first discretion and violated his State and federal due process rights when it ruled he argues that the trial court committed an unsustainable exercise of the numerical value of the petit ioner’s 45% share of the OENE proceeds. Third, Second, he contends that the trial court committed legal error in calculating respondent against the amount he owed the petitioner for the OENE proceeds. weig hed against an award of interest to the petitioner as credits to the scope of the remand hearing by refusing to consider the same expenses that several errors. First, he argues that the trial court impermissibly narrowed the The respondent contends that the trial court, on remand, committed

respondent’s motion to reconsider was denied, and this appeal followed. prohibit the respondent from further dissipating marital assets. The Finally, the trial court granted certain of the petitioner’s requests to

(10) days of the Clerk’s notice of this ORDER. ORDERED to pay the petitioner the sum of $2,600,000 wit hin ten petitioner since May 2000 [sic]. As such, the respondent is hereby was and continues to be concerned that the money owed to the money in the stock market since the original decree. The Court noted above, the respondent has already lost significant sums of May 18, 2000. The petitioner is owed another $2,600,000. As the Court to further adjust the division of assets determined as of The remaining offsets argued by the respondent have not swayed

healthcare insurance. The court sta ted: alimony under the existing temporary order, and had also been paying for her warranted because the respondent had been paying her $6,000 per month in reconside ration, and ruled that an award of interest to the petitioner was not the remand hearing, in which it denied the respondent’s motion for On December 16, 200 p. 3 3, the trial court issued its final order relative to

equitable result as directed in Nyhan. because the co urt was obligated to consider all relevant factors to reach an in ruling that the hearing on remand was limited to the calculation of interest, hearing evidence of whether he was able to do so; and ( p. 4 4) the trial court erred ordering him to pay the petitioner $1,792, p. 3 309 within ten days without first decree; (3) the trial court committed an unsustainable exercise of discretio n in property other than the marital homestead prior to the issuance of a final $4,600,000; (2) the court lacked authority to order a partial distribution of that: (1) he did not agree that 45% of certain asset s, as of May 18, 2000, was The respondent moved the court to reconsider the interim order, arguing 4

hearings, and the parties’ experts agreed that the petitioner’s p. 4 45% share of the Both parties present ed expert testimony on this issue during the remand calculating the dollar value of the petitioner’s 45% share of the OENE proceeds. We next address the respondent’s argument that the trial court erred in

is untimely. the parties ’ marital assets was not challenged and any attempted contest now divorce decree motions. Id. at 769. Thus, the trial court’s initial distribution of awarding the petitioner interest and ruling on the petitioner’s untimely post court erred in setting a valuation date for certain IRA and p. 4 401(k) accounts, court’s distribution of the marital assets. Rather, he argued only that the tr ial Moreover, the respondent in his initial appeal did not challenge the trial

required a redistribution of the marital assets. intend for, the trial co urt to determine, on remand, whether the equities of the marital assets. Id. We did not, as the respondent argues, instruct, or so, to determine what rate of interest would result in an equitable distribution address t he narrow issue of whether interest in this case was warranted and, if We disagree. Our instructions in Nyhan were for the trial court, on remand, to during the pendency of his first appeal and subsequent remand proceedings. incurred for the care, education and extracurricular activities of his children payments he made under the temporary order, and for half of the e xpenses he whether he was entitled to an offset credit for alimony and healthcare maintains that the trial court erred as a matter of law in refusing to consider Id. at 772 (citations omitted; second emphasis added). The respondent

order to achieve an equitable distribution of the marital assets. in this case is warranted and, if so, what constitutes a fair rate in evidentiary hearing to determine whether the imposition of interest this portion of the divorce decree, as amended, and remand for an applied RSA 336:1, it was an error of law. Therefore, we vacate value of money due to delay. However, to the extent the trial court court to amend the property distribution to account for the time OENE proceeds. It may well have been appropriate for the trial liability the respondent incurred upon the interest earned from the court did not consider other equitable factors, such as any tax OENE proceeds. Further, it appears from the record that the trial RSA 336:1 exceeded the actual rate of interest earned upon the In this case, the trial court’s imposition of interest under

remand hearing. In Nyhan, we stated: We first address the respondent’s argument relative to the scope of the

him to do so. clerk’s notice of its remand order, and failed to consider the equities in or dering p. 5 5

would compromise his ab ility to maximize the return on the assets, or whether him to be heard on whether liquidating assets to make the ordered payment he argues that the trial court failed to act equitably because it did not allow order him to make the payment notwithstanding his right to appeal. Second, First, he asserts that the trial court lacked authority under RSA 4 p. 5 58:16 - a to The respondent contends that the trial court erred for two reasons.

merits of the respondent’s argument. Howe ver, in this case we exercise our discretion in favor of addressing the party seeks relief on appeal, this court may exercise discretion and dismiss). deliberately disregarded trial court order that bears directly on issue for which DeMauro v. DeMauro, 147 N.H. 478, 482 (2002) (where party consciously and order. Thus, we could dismiss the respondent’s argument on t his issue. See respondent has not made the payment in compliance with the trial court’s notice of the December 16 remand order. At the outset, we note that the in ordering him to pay the peti tioner $2,600,000 within ten days of the clerk’s Finally, we consider the respondent’s argument that the trial court erred

no constitutional violation or unsustainable exercise of discretion. t estimony included detailed discussions of his finances. Accordingly, we find respondent before ruling on the petitioner’s motion, and that the respondent’s hearing reveals that the trial court heard over 1 p. 5 50 pages of testimony from the argument relative to this motion. Specifically, the transcript of the remand reveals that the respondent had ample opportunity to pre sent evidence and the petitioner’s motion, our review of the transcripts of the remand hearings Assuming, without deciding, that the respondent was entitled to a hearing on petitioner’s motion to prohibit further dissipation of assets and for other relief. process rights when it declined to hold a hearing before ruling on the an unsustainable exercise of discretion and violated his State and federal due We now turn to the respondent’s argument that the trial court committed

trial court’s calculation. witnesses and was not clearly erroneous. Accordingly, we find no error in the of the OENE proceeds was amply supported by the testimony of two expert by the evidenc e.” Id. Here, the trial court’s calculation of the petitioner’s 4 p. 5 5% the trial court’s decision unless the finding is clearly erroneous or unsupported (1994). “Credibility of witnesses is a question of fact and we will not overrule Hill at Merrimack Condo. Assoc. v. Town of Merrimack, 139 N.H. 253, 256 credibility and may choose to reject their testimony in whole or in part. So ciety The trial court, as finder of fact, has the discretion to evaluate witnesses’

the correct calculation of the petitioner’s share of the OENE proceeds. experts, but was unable to provide the trial court wit h what he believed to be OENE proceeds equaled $4, p. 6 692,810. The respondent disagreed with the 6

authority and jurisdiction to preserve the status quo. matters affecting the case and the Trial Court has adequate Court from passing on collateral, subsidiary or independent The general rule stated above does not prohibit the Trial thereto are suspended. and the authority and control of the lower court with reference power and jurisdiction over the subject matter of the proceedings, appeal has been perfected, this Court is vested with the exclusive appeal is taken, and any matters embraced therein. After the or execution of the order, judgment or decre e from which the appeal. But, when an appeal is taken, it does affect the operation presentation of the case in this Court, or in furtherance of the appeal; and it may do anything that may be necessary for the for the protection and preservation of the subj ect matter of the proceedings; make such orders and decrees as may be necessary matters not relating to the subject matter of, or affecting, the appeal has been taken. The trial court may act with reference to it strip said court of all power over the proceedi ng in which the necessarily stay all further proceedings in the trial court, nor does [a]n appeal to this Court from a nisi prius court does not

re mains in effect. Rollins, 122 N.H. at 10. However, it is settled law that timely appeal, a final decree does not go to judgment and a temporary decree Rollins, 122 N.H. p. 6 6, 9 (1982); see also Super. Ct. R. 74. Thus, in the event of a court does not go to final judgment if a timely appeal is taken. Rollins v. law relating to property distributions. Generally, a decree iss ued by the trial We also conclude that the trial court’s order was in accord with our case

the order as part of its equitable division of the parties’ marital property. trial court was not acting outside the scope of its statutory authority in issuing $2, p. 6 600,000 within ten days of the clerk’s notice of the order. Accordingly, the and, on remand, amended again requiring the respondent to pay the petitioner parties.” RSA 458:16 - a, II. Here, a decree was issued, amended, appealed is decreed, the court may order an equitable division of property between the portion of the statute simply provides that “[w]hen a dissolution of a marriage issui ng an order such as the one at issue in this case. Rather, the relevant end the inquiry, for there is nothing in the statute preventing a trial court from conferred by statute. See RSA 458:16 - a. However, that proposition does not authority to divide marital property in the context of divorce proceedings is As to the respondent’s first argument, we agree that a t rial court’s

ability to continue exercising joint custody of his children. liquidating the assets would force him to sell his home, thus affecting his p. 7 7

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

immediate transfer of funds to the petitioner. equities and properly concluded that the equities weighed in favor of an allocated to the petitioner, we conclude that the trial court considered the from the respondent as to his loss of funds that he admitted were, in his mind, To the contrary, after hearing three days of evidence, including direct testim ony court failed to act equitably in ordering the respondent to pay the petitioner. Furthermore, we disagree with the respondent’s contention that the trial

status quo by protecting and preserving the funds. entitled; in essence, the trial court’s order was an attempt to preserve the prevent further dissipation of assets to which it believed the petitioner was orde ring the respondent to pay the petitioner $2,600,000, was attempting to been allocated to the petitioner. Under these circumstances, the trial court, in significant amount of money in the stock market, including funds that had in detail about his current financial situation and admitted to having lost a remand hearing that lasted three days, during which the res pondent testified days of the clerk’s notice of the remand order. The trial court conducted a not err in ordering the respondent to pay the petitioner $2,600,000 within ten Nicolazzi to the instant case. In doing so, we conclude that the trial court did We find it appropriate to apply the principles set forth in Rautenberg and

accordingly. Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 - 9 p. 7 7 (1989). the parties’ circumstances during an appeal and to fashion its orders support, we have recognized that the trial court is in the best position to assess omitted; emphasis added). Further, in the context of alimony and child Rautenberg v. Munnis, 107 N.H. 446, 447 - 48 (1966) (quotation and citations