2005-634, IN THE MATTER OF JENNIFER SARVELA AND BRIAN SARVELA

abuse of prescription drugs. alleging the fault ground of habitual drunkenness because of the respondent’s

support obligation. We affirm in part, vacate in part and remand.

Approximately five years after they married, the petitioner filed for divorce,

equitable distribution of assets and disputes the court’s calculation of his child

appeal. The parties married in August 1998 and have two children.

award her a fault-based divorce. The respondent also contests the trial court’s

hearing, the trial court denied the petitioner’s request for a fault-based divorce, Superior Court (

The following facts either appear in the record or are undisputed on

the trial court’s equitable distribution of the parties’ assets and its failure to

Abramson, J.) in the parties’ divorce. The petitioner challenges

respondent, Brian D. Sarvela, cross-appeals the final decree entered by the DALIANIS, J. The petitioner, Jennifer Sarvela, appeals and the

brief and orally), for the respondent. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the to press. Errors may be reported by E-mail at the following address:

orally), for the petitioner. Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and

editorial errors in order that corrections may be made before the opinion goes No. 2005-634 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district 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 address the petitioner’s appeal. p. 2 (4) did not award him a “[m]ore [e]ven [h]alf” of the marital estate. We first escrow account absent evidence of egregious nonpayment of child support; and

obligation. imputed income of $72,449 per year to him to calculate his child support to place his share of the proceeds from the sale of the marital home in an its finding that the respondent was voluntarily underemployed, the court

breakdown of the marriage. 2

what he earned in 2003, two years before the divorce hearing; (3) ordered him drunkard is one who is “intoxicated.” She contends that the respondent payments. In addition, the court issued a uniform support order. Based upon that he was voluntarily underemployed; (2) imputed income to him based upon appeal, the respondent contends that the trial court erroneously: (1) found

constituted habitual drunkenness.

there was insufficient evidence that the respondent’s use of alcohol led to the

language of RSA 458:7, VII refers to “an habitual drunkard,” and that a the marital home be placed in an escrow account to secure child support “habitual drunkenness” to intoxication by alcohol. She asserts that the plain before the marriage. The court ordered that the respondent’s share of equity in years and was thus, in the words of the court, “short term.” In his cross- The petitioner argues that the trial court erred by limiting the term $10,000, which the court found she invested in the home from her own funds

petitioner’s assertion that the respondent’s abuse of prescription drugs

“habitual drunkenness” means “habitual excessive use of alcohol”; and (2) based upon the fault ground of habitual drunkenness because: (1) the term The trial court ruled that the petitioner was not entitled to a divorce

A. Fault-Based Divorce

near equal distribution of the marital assets when the marriage lasted only five I. Petitioner’s Appeal required her to pay the respondent fifty percent of the equity in the home, less

prescription drug abuse during the marriage; and (2) awarded the parties a equitable. Although the court awarded the marital home to the petitioner, it failed to award her a fault-based divorce based upon the respondent’s In her appeal, the petitioner argues that the trial court erred when it: (1)

The trial court determined that a nearly equal distribution of assets was

leading to the irremediable breakdown of the marriage. RSA 458:7-a (2004). and granted the parties a divorce on the grounds of irreconcilable differences percent of the equity in the home, less $10,000. The court ordered the

p. 3 marital residence to the petitioner, but required her to pay the respondent fifty

with liquor.” J. Worcester, parties the personal property in their possession. The court awarded the charges against the estate and allocation of debt. The court awarded the stipulation with respect to motor vehicles, health insurance, life insurance,

drugs.

as “[o]ne addicted to drunkenness” and the word “drunken” as “[i]ntoxicated

1842. interpretation of a statute is a question of law, which we review In dividing the parties’ assets, the court enforced their partial permanent

repassage does not alter that meaning.” B. Equitable Division of Assets

“habitual drunkard” does not refer to one who habitually abuses prescription drugs. Language 227 (1846). Based upon the foregoing, we conclude that the phrase

“drunkard”; however, a dictionary from that time defined the word “drunkard” Id. at 227-28; see RS 148:3 (1842). The statute did not define the word drunk[;] one suffering from or subject to acute or chronic alcoholism.” provision now codified as RSA 458:7 first appeared in the Revised Statutes of habitual drunkard, and has been such for 2 years together.” The Blanchflower, 150 N.H. 226, 227 (2003) (quotation and brackets omitted). The

not see fit to include. “We also note that a law means what it meant to its framers and its mere

modification. encompass one who habitually abuses or is impaired because of prescription one tends toward or reaches insensibility.” Id. These definitions do not the faculties is impaired and inhibitions are broken and in later stages of which a whole. “drunk” is to be “in a condition caused by alcoholic drink in which control of Webster’s Third New International Dictionary 696 (unabridged ed. 2002). To be

The plain meaning of “drunkard” is “one who habitually becomes permits a party to obtain a fault-based divorce “[w]hen either party is an

neither consider what the legislature might have said nor add words that it did

Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 (2005). We will

language of a statute is clear on its face, its meaning is not subject to we ascribe the plain and ordinary meanings to the words used. Id. When the

Id. We first examine the language of the statute, and, where possible,

intent of the legislature as expressed in the words of the statute considered as Kenison v. Dubois, 152 N.H. 448, 451 (2005). We are the final arbiter of the

Resolving this issue requires that we interpret RSA 458:7, VII, which

was “an habitual drunkard” under the statute. became “intoxicated” when he ingested prescription drugs and, therefore, he evidence presented and the equities of the case.”

p. 4 they were in prior to it.” This language does not

some mechanical formula but in a manner deemed ‘just’ based upon the

brought to the marriage and still leave the parties in no worse position than

equitably. “In a divorce proceeding, marital property is not to be divided by

an equal division is an equitable division of property, unless . . . [it] decides See Crowe, 148 N.H. at 221. Under the statute, the court must “presume that factors for a court to consider when equitably dividing the parties’ property. argues that the Letendre, 149 N.H. 31, 35 (2002). The duration of a marriage is but one of the thirty years. In a short-term marriage, it is easier to give back property In the Matter of Letendre & may be considered differently than a long-term marriage of ten, twenty, or

The trial court’s statutory obligation is to apportion the property

because that party has primary child care responsibilities. assets to the party who came into a short-term marriage with fewer assets does our decision in Crowe, 148 N.H. at 222, require trial courts to award more marriage and the value of property contributed by each party.” the parties in a short-term marriage to their premarital financial positions. Nor the needs of the custodial parent, the contribution of each party during the require trial courts to return length of the marriage, the ability of the parties to provide for their own needs, effect, required to return the parties to their premarital financial positions. She divorce. She contends that, in a short-term marriage, the trial court was, in respondent, she was entitled to a greater share of the parties’ assets upon 123 N.H. 222, 225 (1983), we observed: “A marriage of only one or two years The petitioner misinterprets the pertinent case law. In Rahn v. Rahn,

equitably distributing the parties’ assets. RSA 458:16-a, II(o). Additionally, the court may consider any other factor it deems relevant in Crowe & Crowe, 148 N.H. 218, 221 (2002); see RSA 458:16-a, II (2004).

“The statute enumerates various factors for the court to consider, such as the circumstances, the court must make the distribution as equal as possible. Id. marriage, and because she brought more assets into the marriage than did the 149 N.H. 442, 453 (2003) (quotation and ellipsis omitted). Absent special marital property is equitable.” In the Matter of Watterworth & Watterworth, “RSA 458:16-a, II creates a presumption that equal distribution of the proceeds from the sale of the parties’ Vermont home be divided equally. marriage with physical custodial responsibilities.” We disagree. marriage “is when the party without the premarital assets leaves the . . . the parties in a short-term marriage to the financial positions they held before

only circumstances under which a trial court may not return

The petitioner asserts that because the parties had a short-term

respondent from the note and mortgage. Additionally, the court ordered that petitioner to refinance the house within one year of the decree to remove the before the marriage; and (7) the value of any property acquired by gift.

p. 5 acquired prior to or during the marriage; (6) the value of any property acquired

occupy the marital home; (5) the expectation of pension or retirement rights the interests of the parties’ children; (4) the need of the custodial parent to parent, to engage in gainful employment without substantially interfering with as to constitute an unsustainable exercise of discretion. we cannot say that the court’s near equal division of assets was so inequitable factors and as it supports the court’s factual findings based upon these factors,

the employability of the parties; (3) the ability of the petitioner, as the custodial

As the record shows that the trial court considered the relevant statutory

gave things, contrary to the petitioner’s assertions, the court found that her family demonstrates that the court considered: (1) the duration of the marriage; (2)

court found that it was equitable to divide the marital estate relatively equally. sexual harassment suit after the parties were married, not before. assumes that all property is susceptible to division.”

N.H. at 453.

marital estate. The record does not support this contention. Among other statutory factors in dividing the parties’ assets. To the contrary, the record

RSA 458:16-a, II(a), (b), (d), (e), (i) (m), (n). In considering these factors, the to $25,000. The petitioner also testified that she received the settlement of her See not classify property based upon when or by whom it was acquired, but rather home, the remaining stock increased in value during the marriage from $5,000 liquidated some of her Exxon stock to fund the construction of the marital

“credit” for contributing $91,024 from her own or her family’s assets to the The petitioner next argues that the trial court failed to consider the

acquired in determining its distribution, the relevant statutory scheme “does trial court did not find this specifically, the petitioner testified that while she not to her alone. The record supports these findings. Further, although the each spouse at the time of divorce is to be included in the marital estate. each party $20,000, and gave an additional $18,000 to the parties jointly,

The petitioner also contends that the trial court should have given her

While the court has discretion to consider when and by whom property was

153 N.H. 425, 438 (2006). Regardless of the source, all property owned by spouse during the course of the marriage. In the Matter of Harvey & Harvey, and that acquired during marriage, and does not exclude property given to one makes no distinction between property brought to the marriage by the parties Contrary to the petitioner’s implied assertion, RSA 458:16-a, I (2004)

give them equal weight. Watterworth, 149 N.H. at 453. (emphasis added). The court need not consider all of the enumerated factors or after considering one or more of the following factors.” RSA 458:16-a, II that an equal distribution of property would not be appropriate or equitable equal or unequal distribution of the property.”

p. 6 agreement not to pursue his Rock 101 401(k) account.” The respondent with its statutory obligation to specify its reasons for doing this.

he “agreed to waive his claim to [the] petitioner’s stock in return for her $10,000 in the equity of the marital home, we hold that the court complied

equitable. statute, the court’s near equal division of property was presumptively and rulings, “the court should state its reasons and make specific findings and the court ruled upon the parties’ specific requests for findings and rulings. By invested $10,000 of her own funds in the marital home. Citing RSA 458:16-a, statute.” Where, as here, the parties have made specific requests for findings decided to make an equal division which is presumptively equitable under the The respondent first argues that the trial court erred when it found that have been unequal because the court awarded the petitioner an additional A. Equitable Division of Assets is warranted.” II. Respondent’s Cross-Appeal

obligation was to “make property distribution as equal as it can.” In addition, 458:16-a, IV. The court found that, before the parties married, the petitioner

Moreover, to the extent that the trial court’s division of property may

statute,” however, unless it “concludes that an unequal distribution of property 458:16-a, IV; see also Magrauth, 136 N.H. at 763. obligation to specify written reasons for the distribution it ordered. See RSA

See RSA 458:16-a, II. The court thus complied with its statutory

premarital assets.” As the court stated, “absent special circumstances,” its parties’ property “equally, with the exception of a $10,000.00 credit for [her] parties have not requested findings and rulings . . ., it need only state that, In this case, as the petitioner observes, the trial court chose to divide the

Id.

this requirement. The trial court need not “specify written reasons using the factors listed in the division of property which it orders.” We hold that the trial court complied with Magrauth, 136 N.H. at 763. 458:16-a, IV (2004) requires the trial court to “specify written reasons for the

“if the superior court determines that an equal division is equitable, and the In Magrauth v. Magrauth, 136 N.H. 757, 763 (1993), we explained that

for its “nearly equal division” of property. As she correctly observes, RSA The petitioner next asserts that the trial court failed to explain the basis demonstrate that he preserved this argument for our review. on this subject. p. 7 court had ever encountered, the court was entitled to disregard his testimony

compensating him at the rate of $52,000 a year.” result of his drug abuse”; and (2) “he walked away from employment underemployed because: (1) he was “fired from a series of well-paying jobs as a

disputes the petitioner’s version of the parties’ conversation, he has failed to was unnecessary to play the tape. To the extent that the respondent now Having found the respondent to be one of the “least credible witnesses” the trial also fired from radio station WKXL in April 2004, after the station received allow the tape to be played in rebuttal. The respondent told the court that it

worth of personal property from the marital home after she filed for divorce. from radio station WLNH, the record demonstrates that the respondent was respondent disputed them. If the respondent disputed them, the court would petitioner testified, however, that the respondent took approximately $60,000 possession . . . . [He] was reduced to not even having pots and pans.” The findings. We disagree.

income to him for child support purposes after finding that he was voluntarily

In addition to the petitioner’s testimony that the respondent was fired 401k.” The trial court ruled that it would accept these assertions unless the offer to “sign off on her stock[,] she signed off on Valentine’s Day of 2005 on his might sound fair, [the respondent] had virtually no personal[ ]ty in his stock and your 401k.” The petitioner asserted that because of the respondent’s (2004). The respondent first argues that the evidence does not support these evidence). See RSA 458-C:2, IV(a)

The respondent contends that the trial court erred when it imputed

1. Voluntary Underemployment

B. Child Support Calculation each party the personal effects in their possession. He contends, “While that and he said Jennifer, I will relinquish my rights, any rights I may have to your measuring credibility of witnesses, and determining weight to be given trial court’s judgment on such issues as resolving conflicts in testimony,

See Cook v. Sullivan, 149 N.H. 774, 780 (2003) (court defers to

The respondent next asserts that the trial court erred when it awarded parties in which she agreed “to sign off on a 401K that [the respondent] has Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

At trial, the petitioner offered to play a tape of a discussion between the

refutes this assertion. contends that this finding is based upon “no evidence.” The trial transcript p. 8 Rochester and Nashua radio positions.

reasonably could have found that the respondent “walked away” from the

earnings.” obligor owned an asset that could be applied to meet his or her obligations. until the end of January 2005. Based upon this testimony, the trial court income based upon a voluntarily unemployed or underemployed parent’s prior have held that this statute “permit[s], rather than require[s] a court to impute

obligor’s wrongdoing resulted in the loss of high-earning employment and the time.” He also testified that he did not resume working in the radio industry of and just didn’t go back to work, I didn’t even feel like it was worth it at the underemployed, unless the parent is physically or mentally incapacitated.” We October, “when I came back from Vermont and I lost everything I ever dreamed decision in 8

decision in

support order, the child support obligation should not be reduced where the

has earned in cases where the parent voluntarily becomes unemployed or approximately $1,000 per week. He testified that he left these positions in difference between the amount a parent is earning and the amount a parent imputing income to him based upon this finding, the trial court relied upon our authorizes “[t]he court, in its discretion, [to] consider as gross income the

Noddin.

decision will not be disturbed on appeal if supported by evidence in the record.” 370 (2006), we recently clarified that RSA 458-C:2, IV(a) supersedes our Noddin, 123 N.H. at 76. In In the Matter of Rossino & Rossino, 153 N.H. 367,

respondent was fired from several jobs because of his prescription drug abuse.

in the context of a post-divorce request for modification of an existing child

Noddin v. Noddin, 123 N.H. 73 (1983). In that case, we held that,

another station in Nashua. When he worked for these stations, he earned In finding that the respondent was voluntarily underemployed and in current employment, he worked for two radio stations, WNEX in Rochester and jobs, his alleged underemployment was not “voluntary.” RSA 458-C:2, IV(a) received an annual salary of $52,000. The respondent testified that before his In the Matter of Donovan & Donovan, 152 N.H. 55, 58-59 (2005).

“Whether a party is underemployed is a question for the fact finder, whose

In the Matter of Bazemore & Jack, 153 N.H. 351, 355-56 (2006).

drug abuse. This evidence supports the trial court’s finding that the

The respondent next asserts that because he did not intend to lose his finding that the respondent “walked away” from employment for which he

poor service, dishonesty, and losing clients for the station” due to prescription was fired from radio station WNNH in January 2004 because of his “pattern of sales call [and] was drooling.” The record further showed that the respondent

There was evidence in the record as well to support the trial court’s

complainant told the station that the respondent “was nodding off during his complaints that he was obviously drunk or medicated at client meetings. One petitioner the amount of child support he owes under the Guidelines.” p. 9 compensated at the level of his previous employment and is able to pay [the]

our decision in jobs. We remand for further proceedings consistent with this opinion and with asserts that such security “is restricted to those cases where there has been extent that the court did so because it found that he was fired from several his or her employment, or, as in the case of the obligor in unemployed or underemployed. A parent who is involuntarily terminated from permits a trial court to impute income to a parent who “voluntarily” becomes

his share of the proceeds of the marital home be held in escrow until he “is

have the authority to provide for security for the payment of child support,” he voluntarily underemployed and its decision to impute income to him, to the RSA 458:21 (2004). While the respondent concedes that “[t]rial courts clearly

Finally, the respondent argues that the court erred when it ordered that

2. Escrow Account the statute as written. unemployed or underemployed. Our task is to interpret legislative intent from Rossino.

We therefore vacate the trial court’s finding that the respondent was

amending RSA 458-C:2, IV(a). voluntarily underemployed because he lost his job(s) due to his own as written. We leave to the legislature to decide whether to revive Noddin by to include. Id. Accordingly, we will not graft Noddin onto the statutory scheme determinations and modifications.” the legislature might have said or add words that the legislature did not see fit

368, involuntarily resigns from that employment, did not “voluntarily” become

Police Department.” voluntary actions that brought about his loss of employment with the Hudson

In this case, to the extent that the trial court found the respondent to be

purpose of RSA chapter 458-C to establish uniformity in child support survived the enactment of RSA 458-C:2, IV(a), we “would circumvent the stated incapacitated. Id. at 370-71. We noted that were we to conclude that Noddin him without first determining whether the obligor was physically or mentally Noddin applied and imputed the obligor’s higher earnings as a police officer to

found that “it was a result of [the obligor’s] own inappropriate conduct and Hudson Police Department to the obligor. Id. at 369. Specifically the court Applying Noddin, the trial court attributed the higher earnings from the as an electrician’s apprentice, was electrocuted. Rossino, 153 N.H. at 368-69. employment with the Hudson Police Department and, thereafter, while working his annual income was reduced because he involuntarily resigned from his In Rossino, the obligor moved to modify his child support obligation after payments.

p. 10 of the proceeds of the marital home be held in escrow to secure child support

unsustainably exercised its discretion by ordering that the respondent’s share

ordered.” In light of this finding, we cannot conclude that the trial court demeanor and attitude at trial, the Court is not persuaded he will pay as prescription drugs. . . . As such, given the history of the case, and [his]

amounts of income,” RSA 458:21 contains no such limitation.

allowance shall be decreed for a spouse or children.”

respondent had “presented no persuasive evidence that he is not still abusing BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.

security for payment of child support “[i]n all cases where alimony or an

the court required here.” In this case, the trial court required the escrow after finding that the

argues that the court may exercise its discretion in this regard only “where Feddersen & Cannon, 149 N.H. 194, 200-01 (2003). Although the respondent

RSA 458:21 authorizes the trial court, in its discretion, to require

income.” (Citations omitted.) He contends, “[T]here is no basis for the escrow egregious non-payment, or misleading reporting of substantial amounts of