2005-089 IN THE MATTER OF KAREN BIRMINGHAM AND GREGORY BIRMINGHAM

appeared

the date of notice to the petitioner, Karen Birmingham. We affirm.

Master (

employed as a software developer and consultant at a company in Merrimack.

pro se. Until approximately January 2001, the respondent was

proceedings, the petitioner was represented by counsel while the respondent for divorce. The parties had two minor children. Throughout the divorce The record supports the following facts. In July 2002, the petitioner filed

and alimony be retroactive to the date of the temporary agreement rather than DalPra, M.) denying his request that the modification of child support division of property in the final decree. He also appeals an order of the Marital judgment and vacate the final divorce decree; and (2) vacate or modify the the Trial Court (DiMeo, J.) denying his motion to: (1) strike the default GALWAY, J. The respondent, Gregory Birmingham, appeals an order of

orally), for the respondent. Wiggin & Nourie, P.A., of Manchester (Carol L. Kunz on the brief and to press. Errors may be reported by E-mail at the following address: for the petitioner. (Edward W. Richards and Tanya Pardo on the brief, and Mr. Richards orally), Law Offices of Edward W. Richards & Associates, P.C., of Nashua

editorial errors in order that corrections may be made before the opinion goes No. 2005-089 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Salem Family Division Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as order.

p. 2 provided notice that the hearing would include the motion for final default.

the temporary agreement, and the Marital Master ( 2003, the petitioner filed a motion for final default and a proposed final default an objection nor produced any of the requested documents. Also in January agreed to produce; the court granted that motion. The respondent neither filed court’s November 2002 order. The court scheduled a hearing in May 2003 and obligations set forth in the September 2002 temporary agreement and the trial modification of the existing child support, alimony, visitation, and debt

debt on or before October 1, 2002. Both parties and the case manager signed uniform support order. The respondent also agreed to pay some of the marital and alimony based upon a child support guidelines worksheet and a temporary documents that had been ordered by the court and that the respondent had

custody of the minor children, an equitable division of all marital assets, and a

proof of his inability to pay the required amount by December 8, 2002.

granted the petitioner use of the marital residence and included child support 2003, the petitioner filed a motion to compel the respondent to produce

Taube

setting forth, among other things, his request for sole legal and physical

identified in the temporary agreement or provide the petitioner’s counsel with issued an order requiring the respondent to either pay all of the obligations with TWI. The trial court withheld an immediate finding of contempt and

these representations, the parties reached a temporary agreement, which financial affidavit disclosing his monthly income as $15,000. Based upon December 30, 2002, the petitioner filed a notice of noncompliance. In January TransWorld, Inc. (TWI) at a salary of $180,000 per year, and submitted a

In February 2003, the respondent filed a motion for relief, essentially

provide the petitioner’s counsel with information regarding his employment

The respondent did not comply with the trial court’s order and on represented that since approximately January 2002, he had been employed by

seeking other employment and had no other income. He voluntarily agreed to salary from TWI and was no longer employed by it. He testified that he was hearing, the respondent testified that he had received none of his expected hearing at which it considered the petitioner’s motion for contempt. At that In November 2002, the Trial Court (, J.) conducted a temporary

for a Case Manager Conference. At that conference, the respondent the petitioner filed a motion for contempt in October 2002. same day. The respondent failed to comply with the temporary agreement, and

In September 2002, both parties appeared at the Salem Family Division

January 2002. He was reportedly unemployed from January 2001 until approximately to modify, which was August 20, 2004. p. 3 earlier than the date the petitioner received notice of the respondent’s motion

reconsider, ruling that it had no discretion to modify any child support order

beyond the date of notice to the petitioner.

support and alimony. The Trial Court ( judgment, vacate or modify the division of property, and vacate or modify child

denied.

date of the temporary agreement. The court denied the respondent’s motion to things, that the modification should be retroactive to September 23, 2002, the The respondent filed a timely motion to reconsider, arguing, among other ruling that it had no discretion to retroactively modify a child support order

among other things, that the court vacate the final decree and default Taube DalPra

division cannot be modified. The respondent’s timely motion to reconsider was

reduced both the child support and alimony retroactive to August 20, 2004. divisions in a divorce may never be modified under New Hampshire law; and (3) denying his motion to modify the property division and ruling that property motion to strike the default judgment and vacate the divorce decree; (2) respondent filed an expedited motion to bring forward and modify, requesting, On appeal, the respondent argues the trial court erred in: (1) denying his

mistake, or misfortune; and (2) without such a showing, the final property order for approximately one year. that: (1) the final decree could be vacated only upon a showing of accident, respondent’s motion to vacate the final decree and property division, ruling

hearing on the respondent’s motion to modify alimony and child support and copy to be sent to the respondent for his response. In February 2005, the Salem Family Division (, M.) conducted a lack thereof—with his minor children, and the disposition of assets, with a and retained legal counsel at that time. In approximately June 2004, the

motion to reconsider or strike the default order, or otherwise challenge that court issued a final default order on June 16, 2003. The respondent filed no decree could be stricken or vacated. In December 2004, the court denied the provided the respondent with a copy. The respondent failed to respond and the September 2004, limiting the issue to whether, as a matter of law, the final

the respondent’s lack of response to court orders, the respondent’s contact—or According to the respondent, he obtained employment in November 2003

requested revised proposed default order to the court on May 21, 2003, and issue a final order once this was completed. The petitioner submitted the

that the petitioner file a revised proposed default order with findings regarding and alimony orders. At the conclusion of the hearing, the trial court requested child support enforcement, who was involved in the collection of child support heard testimony from both parties as well as a representative from the office of The Trial Court (, J.) conducted a hearing in May 2003, at which it p. 4 June 2004—almost twelve months after the deadline.

would become final on July 18, 2003. The respondent took no action until waiving any subsequent appeals.

Notice of Decision, Appeals to the Supreme Court within 30 days.

objection or an appeal of the decision, the default order and final divorce decree reconsider or timely appeal the default judgment and final decree, thereby

must be filed with this court within 10 days of the date of the

to its Rule 7.”

The respondent received express, written notice that if he failed to file either an however, counters that the respondent failed to file a timely motion to support its inequitable award of alimony and child support. The petitioner, property and allocation of debt; and (4) the trial court failed to make findings to

Judgment Day, if no objections or appeals are filed. Objections This matter will become final on 7/18/2003, known as the unsustainable exercise of discretion.

decision stated, in pertinent part: court issued a final default order on June 16, 2003. The clerk’s notice of that In the instant case, after conducting a full evidentiary hearing, the trial unless a notice of appeal has then been filed with the Supreme Court pursuant judgment shall be entered . . . unless the Court has otherwise ordered, or 59-A(1).. . . all appeals relating to the action shall be deemed waived and final of the date on the Clerk’s written notice of the order or decision.” Super. Ct. R. reconsideration or other post-decision relief “shall be filed within ten (10) days failed to make any findings to support its unequal division of the marital pursuant to Superior Court Rule 74). To be timely, a motion for party, the decree will not become final until expiration of the appeal period, Ct. R. 74(a); see Super. Ct. R. 209 (providing that upon the default of either days from the date on the Clerk’s written notice of the court’s decision. judgment unless the trial court erred as a matter of law or engaged in an Super. been filed after a verdict or decree, a final judgment shall be entered thirty-one

Super. Ct. R. 74. Where no motion, or an untimely motion, has

“In all actions at law or in equity, in which a verdict or decree is entered

exercise of discretion). entry of a final decree and distribution of marital property; (3) the trial court see State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable provide him with adequate notice that the May 2003 hearing would include Brito v. Ryan, 151 N.H. 635, 637 (2005); no formal discovery was propounded upon him; (2) the trial court failed to We will not disturb a decision denying a motion to vacate a default

impermissibly based upon the respondent’s failure to provide discovery when The respondent first contends that: (1) the default judgment was rules simply because he appeared

p. 5 He cannot avoid the consequences of his failure to comply with the procedural

judgment and vacate the final decree. Furthermore, for the same reasons, we

written notice that the divorce decree would become final if he failed to do so. action to challenge the default judgment and final decree despite receiving discretion. deadlines throughout the entire proceedings. He, however, took no timely 5 conclude the trial court’s ruling was not an unsustainable exercise of timely manner to challenge the default judgment and final decree. Thus, we

when it denied the respondent’s untimely request to strike the default

cause’ requirement of [

procedural rules). The respondent was informed of all applicable procedural

reasonably beyond the respondent’s control precluded him from acting in a represented by counsel.” parties who are represented by counsel. Accordingly, the trial court did not err undermine the finality of judgments involving a pro se litigant and prejudice court’s inequitable orders and, therefore, he “more than satisfies the ‘good pro se. To conclude otherwise would

not be expected to guard against or provide for.” respondent’s] control, or something which a reasonably prudent person would

right of self-representation is not a license to not comply with the relevant Faretta v. California, 422 U.S. 806, 834-35 n. 46 (1975) (recognizing that the mistake, or misfortune that occurred in the instant case. Nothing that was Appeal of Demeritt, 142 N.H. 807, 811 (1998); see however, are bound by the same procedural rules that govern parties

either: (1) understand or satisfy the “court’s burden”; or (2) respond to the The respondent argues that as a pro se litigant, he was ill-equipped to

“Accident, mistake or misfortune has been defined as something outside of [the

The record supports the trial court’s finding that there was no accident,

and its finding will be conclusive unless it is unsupported by the evidence. Id. accident, mistake, or misfortune occurred is determined by the trier of fact, v. Moulton Constr., 141 N.H. 789, 791 (1997) (quotations omitted). Whether modify decrees for good cause shown. Lakeview Homeowners Assoc. is contrary to longstanding principles of equity, which allow courts to correct or grounded upon accident, mistake, or misfortune. He contends that this ruling justice has not been done and a further hearing would be equitable.” trial may be granted in any case when through accident, mistake or misfortune decree construed as motion for new trial). RSA 526:1 (1997) states: “A new See Case v. Case, 121 N.H. 647, 652 (1981) (petition to bring forward prior decree essentially sought a new hearing on the merits before the trial court. court to, among other things, strike the default judgment and vacate the final In this case, however, the respondent’s expedited motion requesting the

motion to strike the default judgment and vacate the final decree must be The respondent argues that the trial court erroneously ruled that his division of property and allocation of marital debt in this case.

p. 6 modify the property division was an unsustainable exercise of discretion. Therefore, we cannot conclude that the trial court’s denial of his motion to circumstances and asserts that it failed to consider the disproportionate fraud, undue influence, deceit, misrepresentation, or mutual mistake.

trial court has discretion to allow credit toward arrearages under certain raised on appeal, and they did not meet the respondent’s burden of showing based upon an inaccurate assessment of his income. He also argues that the this case”; namely, that the original award of child support and alimony was

been given to the [opposing party].” RSA 458:32 (2004) provides, in pertinent

However, as the trial court correctly noted, these issues should have been 6 supported by written reasons as required by RSA 458:16-a, IV (2004). contends that the court’s ruling “ignores the unique factual circumstances in Instead, he argued that the property division was inequitable and was not

not be effective prior to the date that notice of the petition for modification has

date the petitioner received notice of the respondent’s modification petition. He show that the property division was invalid for any of the foregoing reasons. 2002, the date of the temporary agreement, instead of August 20, 2004, the request to modify child support and alimony retroactive to September 23, RSA 458-C:7, II (2004) provides, “Any child support modification shall

division. argues that the trial court has the equitable power to modify a prior property not modify the property division in the final decree. The respondent failed to Finally, the respondent argues the trial court erroneously denied his

division in a divorce may never be modified under New Hampshire law. He and arguments, we conclude that the trial court correctly ruled that it could Id. (quotations omitted). After reviewing the record as well as the parties’ briefs due to fraud, undue influence, deceit, misrepresentation, or mutual mistake.” modified unless the complaining party shows that the distribution is invalid Sommers, 143 N.H. 686, 689 (1999). “[S]uch a property distribution will not be discretion). judicial modification on account of changed circumstances.” Sommers v. of money or a specific portion of the spouses’ property and is not subject to “A property settlement in a divorce decree is a final distribution of a sum

Specifically, he contends the trial court erroneously concluded that a property motion to modify the property division set forth in the final divorce decree. Next, the respondent argues the trial court erroneously denied his

court’s determination of property distribution absent unsustainable exercise of Gronvaldt & Gronvaldt, 150 N.H. 551, 554 (2004) (we will not overturn trial vacate the property division set forth in the final decree. See In the Matter of conclude the trial court did not err in denying the respondent’s motion to adverse party is similarly limited. p. 7 grant a retroactive modification of alimony beyond the date of notice to the

modification of alimony lead us to conclude that the trial court’s authority to

However, our case law and our interpretation of the statutes governing the

modification of alimony beyond the date of notice to the adverse party. that expressly limits the trial court’s authority to grant a retroactive to the [petitioner],” which was August 20, 2004. There is no analogous statute

BRODERICK, C.J.