2006-518, I/M/O of CHRISTINE COSTA AND MICHAEL COSTA

Shanelaris & Schirch, PLLC

No. 2006-518

Salem Family Division

final divorce decree recommended by a Marital Master (DalPra BRODERICK, C.J. The respondent, Michael L. Costa, appeals from the respondent has an associate’s degree, and has been employed by the August 1992. They have two children, born in 1993 and 1999. The by the record. The petitioner, Christine Costa, married the respondent in The following facts were either found by the trial court or are supported

vacate in part, and remand. with respect to the trial court’s division of marital assets. We affirm in part, THE SUPREME COURT OF NEW HAMPSHIRE by the Salem Family Division (Korbey, J.). He makes numerous claims of error

orally), for the petitioner.

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. Opinions are available on the Internet by 9:00 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 goes Hampshire, One Charles Doe 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 22 as account’s funds. p. 2 domestic relations order to effectuate a transfer of her ordered interest in the deductions since 1987. The petitioner was ordered to prepare a qualified trial, had funded his retirement account through mandatory weekly payroll January 13, 2006. The respondent, who was forty-two years old at the time of the respondent had accumulated $67,526.97 in his retirement account as of made no finding as to the account’s actual value. The record reveals only that savings account with the MWRA, “valued as of April 1, 2006.” The master The petitioner was also awarded one-half of the respondent’s retirement

for which she was solely responsible. approximately $10,000, but subject to a loan balance of approximately $3,700, petitioner was awarded the parties’ 2001 Toyota Camry, valued at ordered to discharge a $15,000 debt owed by the parties to her brother. The the property, which had an outstanding balance of $234,000. She was also $300,000, but was required to assume sole responsibility for the mortgage on The petitioner was awarded title to the marital home, valued at

approximately $14,800 annually. the respondent was ordered to pay $284 weekly in child support, or petitioner was awarded primary physical custody of the parties’ children, while petitioner earned $48,000 annually, while the respondent earned $70,800. The The master’s support calculations reveal that at the time of the divorce, the

current and future earning capacity is greater than the Petitioner’s.

assets is greater than the Petitioner’s; [and] the Respondent’s housing for the children; the Respondent’s ability to acquire capital for the following reasons: she shall be required to provide suitable than equal portion of the marital estate awarded to the Petitioner

assets: marriage, the master recommended an unequal division of the parties’ marital Despite declining to assign fault in the breakdown of the parties’

(Supp. 2006). entry of a divorce on the ground of irreconcilable differences. See RSA 458:7-a and cooperation” had led to their separation. As a result, he recommended master found it “abundantly clear” that the parties’ “lack of communication adultery was the primary cause of the breakdown of the marriage.” Rather, the (2004). However, after a four-day trial, the master “[did] not find . . . that committed adultery and treated her with “extreme cruelty.” See RSA 458:7 fault-based divorce shortly thereafter. She alleged that her husband had The parties separated in November 2004, and the petitioner filed for a p. 3 3

personal items such as tools, pictures, and clothing left in the marital home. post-decree motion for reconsideration, which sought a revised award of this last item, the respondent challenges the trial court’s summary denial of his all personal property not specifically disposed of by the decree. With regard to discretion, id payments on the Toyota Camry following entry of the final divorce decree, and parties’ marital home to the petitioner, along with two months’ worth of petitioner without utilizing the formula set forth by this court in Hodgins v. order.” He takes particular exception to the award of all the equity in the property; (4) awarded one-half of his retirement savings account to the “and without articulating any specific findings and rulings to justify such an vehicle in her own name; ( p. 3 3) failed to award him certain items of personal the entire marital estate” to the petitioner absent a finding of fault against him, after entry of the final divorce decree, and until the petitioner refinanced the The respondent first argues that the master erred by awarding “almost continue making weekly payments on the 2001 Toyota Camry for sixty days awarded all the equity in the marital home to the petitioner; (2) ordered him to III On appeal, the respondent argues that the trial court erred when it: (1) N.H. 31, 34 (2002).

., or an error of law, In the Matter of Letendre & Letendre, 149

court’s decision on these matters absent an unsustainable exercise of Ramadan & Ramadan, 15 p. 3 3 N.H. 226, 232 (2006). We will not overturn a trial property distribution when fashioning a final divorce decree. In the Matter of The trial court is afforded broad discretion in determining matters of

parties’ separation. We address each issue in turn. petitioner’s alleged unauthorized depletion of a joint bank account after the orders issued at the outset of the parties’ divorce; and (6) failed to address the (5) ordered him to “become current” on all obligations imposed by temporary 458:16-a, I (1992), and without addressing survivorship rights to the account; Hodgins, 126 N.H. 711, 715-16 (1985), superseded on other grounds by RSA

filed with the court.” accounts . . . and the like . . . as shown on their individual financial affidavits master awarded the parties “their respective checking and/or savings bank petitioner retained all other furniture and personal property. Finally, the sports memorabilia, a comic book collection, and a large-screen television. The automobile which the master found to have “minimal value,” as well as some financial affidavit valued at $6,2 p. 3 30. He was also awarded a 1968 GTO The master awarded the respondent a 1997 Toyota Tacoma, which his particular asset in its entirety to one party,” Letendre p. 4 petitioner. Accordingly, since “[a] trial court is not precluded from awarding a capital assets. See to justify an unequal apportionment of the parties’ marital assets favoring the historically higher income, and the respondent’s greater ability to acquire Camry during the pendency of this appeal. On remand, the trial court shall Given this record, we conclude that the master made sufficient findings custodial parent to own and occupy the marital home, the respondent’s continued to be deducted from his paycheck each week to pay for the Toyota RSA 458:16-a to support his decision. He cited the petitioner’s need as the We note the respondent’s representation in his brief that fifty dollars Moreover, the master appropriately referenced several factors listed in

on the Toyota Camry for two months after entry of the final decree. petitioner, or in its extension of the respondent’s obligation to make payments trial court’s award of household items of apparently de minimus value to the the equity in the parties’ marital home. Furthermore, we find no error in the conclude that it was within the trial court’s discretion to award the petitioner

securing a better-paying position with comprehensive benefits. the parties’ marriage, and lacked higher education, decreasing her chances of contrast, had recently lost her job, had changed jobs several times throughout substantially reduced the value of the petitioner’s award. respondent’s long-term employment with the MWRA. The petitioner, by been assignable in whole or in part to the respondent. This debt allocation children during his designated visitation periods. The master also noted the ordered to assume approximately $252,000 in debt that might otherwise have parties’ children, and that the respondent had often neglected to take the assets. Notably, however, the record also reveals that the petitioner was that the petitioner “is and always has been” the primary caretaker of the petitioner received some $310,000 out of approximately $320,000 in divisible respondent’s pension, which we address later, the record reveals that the RSA 458:16-a, II(b)-(e). Specifically, the master emphasized master’s award to the petitioner. Setting aside the proper division of the Initially, we disagree with the respondent’s characterization of the

to “specify written reasons for the division of property which it orders.” N.H. 218, 221 (2002). RSA 458:16-a, IV (2004), in turn, requires the trial court all factors or give them equal weight.” In the Matter of Crowe & Crowe, 148 designated in the statute. Id. “Under the statute, the court need not consider the trial court decides otherwise after considering one or more of the factors 458:16-a, II (2004), an equal division of property is presumed equitable unless presented and the equities of the case.” Letendre, 149 N.H. at 35. Under RSA mechanical formula but in a manner deemed ‘just’ based upon the evidence “In a divorce proceeding, marital property is not to be divided by some will eventually be combined with a pension of unknown contingent value. Cf p. 5 savings from paycheck withdrawals with an ascertainable present value, which type of hybrid retirement savings presented by this case – namely, retirement We have not yet had occasion to decide the proper method of dividing the

Laws Ann. ch. 32, § 19; see assignment of an interest in a Massachusetts government pension. Mass. Gen.

spouse “a present assignment of a percentage of the present value of the future (Mass. App. Ct. 2004). In Massachusetts, courts may award a non-employee

Nevertheless, we observe that Massachusetts law expressly permits the 715-16 (neither present nor contingent pension values ascertainable). id. (present and contingent pension values ascertainable); Hodgins, 126 N.H. at

a defined benefit plan. See This retirement system has traits of both a defined contribution plan and governed by Massachusetts law. See The MWRA is a public entity, and its employees’ retirement benefits are

upon the date of his retirement. pension, the value of which is not presently ascertainable because it depends however, the respondent’s total “retirement allowance” will also include a would by itself constitute a defined contribution plan. On the other hand, they have generated. This annuity, which has an ascertainable present value, savings entail an annuity funded by his paycheck deductions, and the interest N.H. 442, 452 (2003). On the one hand, the respondent’s existing retirement

difference is the pension. Id. what is provided by the annuity and the total “retirement allowance.” This the annuity. Id. The governmental employer makes up the difference between allowance” which is based upon accumulated employee paycheck deductions is pension. Mass. Gen. Laws Ann. ch. 32, § 1. The part of the “retirement Ann. ch. 32, § 5(2)(a). The allowance consists of two parts – an annuity and a age at retirement, length of creditable service, and salary. Mass. Gen. Laws Massachusetts public employees is set by a formula weighing an employee’s §§ 1-28 (West 2001 & Supp. 2007). The “retirement allowance” paid to

nature of the MWRA retirement system. for divorce, in its award. His arguments necessitate further analysis of the his savings accrued prior to the parties’ marriage, and after the petitioner filed Hodgins, 126 N.H. at 715-16. He principally objects to the court’s inclusion of employ the Hodgins formula when dividing his retirement savings. See The respondent next asserts that the trial court erred because it failed to

excess of those mandated by the final decree. evaluate this claim, and credit the respondent for any payments made in retirement assets of the type presented here, the Early p. 6 We hold that in cases where trial courts are tasked with dividing

valuation date” for the division of pension assets. Watterworth “are free to exercise their sound discretion to establish an appropriate We note that in cases where the buyout option is practicable, trial courts

of Chamberlin & Chamberlin, 155 N.H. 13, 16 (2007). Harvey, 153 N.H. 425, 436 (2006), overruled on other grounds by In the Matter the transition of the parties after dissolution. See In the Matter of Harvey & “pension.” immediate control over his or her share of the marital estate, thereby easing that he intends to take his retirement allowance from the commonwealth as a course of action is preferable, since it gives each divorcing spouse complete and respondent intends to continue working for the MWRA until retirement, and be able to buy out the prospective interest of the non-employee spouse. This benefit plan. It also ignored the uncontested evidence at trial that the ascertained, the court shall discern whether the pension-holding spouse would evidence presented at trial that the respondent’s annuity was part of a defined contingent values of retirement savings. If only a present value may be readily fully take into account the law governing the plan, and the uncontroverted Specifically, trial courts should initially attempt to assess both the present and Family Law capable of being treated as a defined contribution plan. The award failed to § 19.10, at 72-73 (2002) (discussing similar methodology). above should be employed. See presumed that the respondent’s annuity account was a freestanding entity, also 3A C. Douglas, New Hampshire Practice, present value of the respondent’s retirement annuity. The master thus analysis described respondent contemplated. The master’s award took into account only the have been further developed – although perhaps not in the manner the master’s analysis of the proper distribution of his retirement assets should We find this rubric useful here, and agree with the respondent that the

marriage if and when the benefits are actually received.” Id non-employee spouse “a percentage of the pension benefits attributable to the If a buyout is unworkable, however, Massachusetts courts may award a

pension benefits.” Id. employee spouse has] insufficient assets to divide the present value of the court in Hodgins, “avoids . . . the practical problem presented when [the omitted). This option, which roughly parallels the methodology outlined by this

available assets to buy out the interest of the other spouse in the pension.” Id. of the pension, and the [employee] spouse with the pension has sufficient settlement. “[It] is customarily employed when there is a known present value omitted). This method is preferred because it provides an immediate pension benefits.” Early v. Early, 604 N.E.2d 17, 21 (Mass. 1992) (quotation p. 7 Watterworth

spouse.

benefits commence and awarding half of this amount to each

benefit to both parties.” Hodgins particular asset until the pension becomes payable, if this would maximize the this opinion, reiterating that “it may . . . be advisable to defer distribution of [a] the petitioner. We remand for further proceedings on this issue consistent with the value of the respondent’s retirement annuity account on April 1, 2006, to shall be a charge against each party’s estate.” Based upon the foregoing, we vacate the trial court’s award of one-half of interest. As the trial court noted in the final decree, “The terms of th[e] decree may be assigned to the petitioner on remand will be a presently-held property death does not require extended discussion. Whatever portion of the pension denying the petitioner survivorship rights in his pension in the event of his employee will have earned toward the pension as of the date The respondent’s argument that the master erred by neither granting nor

commencement of the divorce by the total number of credits the

Decrees employing the Hodgins

divorce lump sum distribution. attributable to the marriage to a non-employee spouse in the event of a post- § 11(1). The decree should award a percentage of the retirement savings permitted under the plan in question. See employee was employed during the marriage and prior to the Mass. Gen. Laws Ann. ch. 32, retirement savings as a lump sum if, as here, such a distribution would be possibility that a pension-holding spouse may at some point claim his or her the Hodgins methodology should also account for the

, 149 N.H. at 452.

enter a decree, per Hodgins Where a buyout is not a feasible option, however, the trial court should

employee’s former spouse by dividing the number of months the

formula calculates a percentage to be paid to an

divorce pay raises increasing pension benefits). In particular, Hodgins absent gross inequity; non-employee spouse may benefit by post- 74-76 (1996) (actual, not projected, pension benefit will be divided under spouse. Hodgins, 126 N.H. at 716; see also Rothbart v. Rothbart, 141 N.H. 71, recipient will pay a portion of each payment received to his or her former

770-71 (2002), is permitted if necessary to achieve an equitable award. filing of a divorce petition, see In the Matter of Nyhan & Nyhan, 147 N.H. 768, division, see Crowe, 148 N.H. at 222, as well as savings accumulated after the 451. Thus, the inclusion of pre-marital retirement savings in the property on this particular point, the respondent specifically requested that the master p. 8 In contrast to his arguments regarding the overdue mortgage payments,

the funds. account, and no benefit from the remainder of the petitioner’s apportionment of incurred bills, the respondent testified that he received just $3,600 from the While the petitioner claimed to have used some $23,000 to pay off jointlycourt received conflicting evidence regarding the subsequent use of this money. account immediately prior to their separation. The record reveals that the trial decree to account for $27,000 the parties acknowledge was held in a joint bank Finally, the respondent argues that the trial court erred by failing in its

discretion on this particular point. all findings necessary to support its decree.” In re Guardianship of Kapitula situations in making its support calculations – unsustainably exercised its “Further, in the absence of specific findings, a court is presumed to have made not find that the trial court – which extensively reviewed the parties’ financial indicate that the respondent submitted a specific request for such a finding. respondent’s ability to pay back his arrearage. The record does not, however, Id. at 497-98 (quotation omitted). Based upon our review of the record, we do In the final decree, the master made no specific findings as to the court to accept or reject, in whole or in part, whatever evidence was presented.” testimony.” Id. at 497. Furthermore, “[i]t is . . . within the province of the trial the credibility of witnesses, and determining the weight to be given to contrary, “we defer to a trial court’s judgment on such issues as . . . measuring arrearage. Although the respondent arguably presented evidence to the include a finding that the respondent could pay the petitioner his accumulated 153 N.H. 492, 496-97 (2006). In the instant matter, that would necessarily

finding that he would be able to pay the petitioner in such a prompt manner. to pay his debt, arguing that the evidence presented at trial did not support a decree. The respondent challenges only the manner in which he was ordered it appears that the trial court opted to enter the above-quoted order in its final trial. Instead of granting a pre-trial motion for contempt filed by the petitioner, respondent was more than $4000 in arrears on these payments by the time of reduced his obligation to $650 per month. By his own admission, the payments on the parties’ marital home. The next month, the trial court 11, 2005, the respondent was responsible for one-half of the mortgage record reveals that pursuant to the court’s Temporary Order, dated February current on all obligations ordered in the Temporary Order within 30 days.” The The respondent next challenges the trial court’s order that he “become

p. 9 the division of the $27,000 in question was an unsustainable exercise of Given these circumstances, the master’s failure to make findings as to

one time have been held jointly. “respective” bank accounts of the parties, and not any accounts that may at Despite these orders, the trial court’s final decree addressed only the

violation of the standing order, there is no contempt. Consequently, provided that the accounts have not been utilized in

distribution and not necessarily ‘divide’ the accounts.

of the court to safeguard the assets of the parties for final With regard to the division of the bank accounts, it was the intent

trial court stated the following: Next, in an order dated August 16, 2005 on cross-motions for contempt, the

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

Affirmed in part; vacated in part;

separation which occurred on or about November, 2004. held in the parties’ joint accounts on the date of the parties’ shall pay over to the Respondent one-half of the amounts that were bank account standing in their own name. However, the Petitioner Each party is temporarily awarded the use and possession of any and remanded.

the joint bank account that held $27,000 just prior to the parties’ separation. and order the trial court to enter specific findings and rulings with respect to Magrauth, 136 N.H. 757, 763 (1993). Accordingly, we also remand this issue, and make specific findings and rulings supporting its decision.” Magrauth v. findings and rulings, as they did in this case, the court should state its reasons is well settled that “[i]f . . . the parties [to a divorce] make specific requests for 295, 296 (2001) (explaining unsustainable exercise of discretion standard). It discretion constitutes an abuse of discretion); see State v. Lambert, 147 N.H.

from the parties’ joint bank accounts during the pendency of their divorce. essentially promised continuing review of the propriety of any usage of funds This omission stands in contrast to two orders of the trial court which

for these funds in any meaningful way. his knowledge or consent. The court’s final decree, however, does not account find the petitioner illegally withdrew the $27,000 at issue and spent it without