2007-435, IN RE ESTATE OF DAVID J. BOURASSA

Chubrich & Harrigan, P.A.

shared domestic responsibilities, worked together on Beck’s family farm, and, until his untimely death in August 2006. During those years, the couple

No. 2007-435 Rockingham County Probate Court

thereafter, Bourassa moved into Beck’s home, where he continued to reside

romantic relationship at some point during the mid to late 1990s. Soon The probate court found the following: Beck and Bourassa began a

and wife, as is required by RSA 457:39, we affirm.

Rockingham County Probate Court (O’Neill , of Portsmouth DUGGAN, J. The petitioner, Deborah Beck, appeals a decree of the held that Beck and Bourassa failed to acknowledge one another as husband spouse pursuant to RSA 457:39 (2004). Because the probate court reasonably that the trial court erred in failing to find that she was Bourassa’s common law

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

entitled to a spousal share of the estate of David J. Bourassa. Beck argues

for the Estate of David J. Bourassa. (Francis X. Quinn, Jr. and Amy C. Mackin on the brief, and Mr. Quinn orally), Boynton, Waldron, Doleac, Woodman & Scott, P.A. to press. Errors may be reported by E-mail at the following address:

brief and orally), for the petitioner.

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 the testimony” presented at trial. In re Buttrick

p. 2 the findings, as made by the probate judge, could be reasonably made, given review the record of the proceedings before the probate court to determine if findings could not be reasonably made.” RSA 567-A:4 (2007). “Hence we must

of the judge of probate a[s] final unless they are so plainly erroneous that such

community. In addressing Beck’s claim, we must accept “[t]he findings of fact she and Bourassa were not generally reputed to be husband and wife in their and Bourassa did not acknowledge each other as husband and wife, and that

Beck appeals, arguing that the trial court erred in finding both that she

estate. court refused to rule that Beck was entitled to a spousal share of Bourassa’s

reputed to be husband and wife in their community. See

were generally reputed as such in the community. Accordingly, the probate

(2) acknowledged each other as husband and wife; and (3) were generally

that she and Bourassa acknowledged one another as husband and wife, and

the period of three years preceding his death, she and Bourassa: (1) cohabited; to be entitled to a spousal share, Beck was required to demonstrate that, for thereafter be deemed to have been legally married.” RSA 457:39. Accordingly, entitled to a spousal share of Bourassa’s estate, see the court determined that Beck had failed to sustain her burden of establishing daughters from a previous marriage. Believing that she was nevertheless and Bourassa had cohabited for the three years preceding his death. However, entirety of Bourassa’s estate was to be divided equally among his four and ruled that Beck had presented sufficient evidence to demonstrate that she

Joan S. v. John S.

engaging in this inquiry, we are guided by the rule that “[t]he trier of fact is in

such, for the period of 3 years, and until the decease of one of them, shall

began cohabiting, made no provision for Beck. Instead, it provided that the Following two days of hearings, the probate court issued its final order

common-law marriages except to the limited extent provided by RSA 457:39.”

acknowledging each other as husband and wife, and generally reputed to be

probate. That will, which was duly executed several years after the couple Following Bourassa’s death, his most recent will was submitted for N.H. 58, 59 (1949). “New Hampshire is a jurisdiction which does not recognize the validity of Delisle v. Smalley, 96

common law spouse.

in substantially the same form since 1842, “[p]ersons cohabiting and Buttrick, 134 N.H. 675, 677 (1991). Pursuant to that statute, which has been

, 121 N.H. 96, 98 (1981) (quotation omitted); see In re

couple never married. in 2002, gave birth to a child. However, despite their lengthy cohabitation, the

filed a petition in the probate court requesting to be declared Bourassa’s

p. 3 and wife, Beck argues that we must reverse because the probate court “erred Despite the couple’s express disavowal of their relationship as husband

“servant” and refused to “be anybody’s servant . . . [or] anybody’s wife.”

to Sullivan, Beck went on to explain that she associated the word “wife” with “she was never David’s wife and she would never be anybody’s wife.” According regarding her petition to obtain a spousal share, at which time she stated that

of Bourassa’s estate, Richard Sullivan, testified that he spoke with Beck

was not, and never would be “anybody’s common law.” Moreover, the executor Dayna and Devin Bourassa, testified that Beck had sternly told them that she acknowledge Bourassa as her husband. Indeed, two of Bourassa’s daughters,

The record also supports the trial court’s conclusion that Beck did not

similarly testified that he never held Beck out as his spouse. Bourassa’s former employees, as well as one of his former business associates, brother would “always say anybody was crazy that got married.” Finally, five of

that Beck was just “the woman [her] brother lived with” and testified that her

him that “they were not married.” Bourassa’s sister, Gail Jablonski, believed 3 Bourassa never held Beck out as his wife and, in fact, had made a point to tell responded firmly, “hell, no.” Bourassa’s brother, Gary Bourassa, testified that involves declaration or avowal of the relationship.” Delisle explained, “[a]cknowledgement of another as one’s spouse [under RSA 457:39]

with the couple’s child, asked him if he had gotten married, and Bourassa

reasonable, based upon the evidence presented at trial. As we have previously

Bourassa’s former employers, Michael Iafolla, testified that he saw Bourassa Bourassa did not acknowledge Beck as his wife. For example, one of Beck and Bourassa did not acknowledge each other as husband and wife is Here, as the probate court noted, the majority of witnesses testified that After reviewing the record, we hold that the probate court’s finding that

accompanied that conduct have avowed or disavowed the existence of a legal legality or illegality, according [to whether] the declarations of the parties which other words, “[t]he conduct of cohabitation assumes at death the aspect of

relationship.” Delisle, 96 N.H. at 59-60 (emphasis added). and determin[e] the weight to be given evidence”).

(defining “avowal” as “an open declaration or frank acknowledgement”). In also Webster’s Third New International Dictionary 151 (unabridged ed. 2002) is not compelled to believe even uncontroverted evidence.” Restaurant , 96 N.H. at 59; see the best position to measure the persuasiveness and credibility of evidence and

to “resolv[e] conflicts in the testimony, measur[e] the credibility of witnesses, 149 N.H. 774, 780 (2003) (explaining that the trial court is in the best position Operators, Inc. v. Jenney, 128 N.H. 708, 711 (1986); see also Cook v. Sullivan, made.” RSA 567-A:4; see

p. 4 husband and wife is “so plainly erroneous . . . [that it] could not be reasonably

the probate court’s finding that the couple did not acknowledge one another as for spouse blank. In light of all of the foregoing conduct, we cannot hold that chiropractor and, although he responded to every other question, left the box

prior to his death, Bourassa completed an intake form while visiting a

vehicles separately, and had separate health insurance. Further, three months

reveals that Beck and Bourassa held their real estate separately, titled their Beyond that acknowledged in the probate court’s order, the record also

dependence upon Tapley relationship by [Bourassa]’s untimely death.” Beck overstates the trial court’s

relationship,’ with the termination of [Bourassa]’s and [Beck]’s loving

point, the probate court cited Tapley

As noted by the Estate, the court’s “reliance” upon Tapley spouse, Beck testified that she “spoke to [the author] . . . [and] told her that newspaper article written about her family farm referenced Bourassa as her Uniform System of Citation § 1.2 (Columbia Law Review Ass’n et al. eds., 17th interrogatories propounded in unrelated litigation. Moreover, when a proposition but sufficiently analogous to lend support,” The Bluebook: A show that a “[c]ited authority supports a proposition different from the main 16.58, at 607 (Univ. of Chi. Press, 15th ed. 2003), the “cf equated the lifetime dissolution of the Tapley’s ‘unstructured domestic.” signal is used to “compare” or “see, by way of comparison,” The Chicago Manual of Style §

ultimate determination that Beck failed to meet her burden. Even more to the Beck also argues that the trial court erred “by relying upon [Tapley v. several pages of factual findings that independently support the probate court’s single citation in the conclusion section of its order. Preceding that section are

Bourassa, and described Bourassa as her “significant other” in answering

under RSA 457:39 and, thus, the probate judge “improperly and incorrectly [Bourassa]’s [e]state.” Specifically, Beck contends that Tapley did not arise Tapley, 122 N.H. 727, 730 (1982),] to deny . . . her [a] spous[al] share of to the level of an avowal of “the existence of a legal relationship,” Delisle Although, in rare cases, the conduct of the parties could conceivably rise (explaining that it is within the purview of the trial court to weigh the evidence).

on her will . . . as a single person,” maintained separate bank accounts from However, as the probate court stated in its order, Beck also “identified herself testified that the couple shared domestic and child care responsibilities.

he as her husband.” We disagree. [Beck], which [she contends] consistently acknowledged [her] as his wife, and

N.H. at 60, this is not such a case. To be sure, many of Beck’s witnesses

p. 5 are inconsistent with the professionalism we expect from practitioners before A f f i r m e d

claims against trial judges, when, as here, the claims are utterly baseless, they While it is inherent in our appellate function to review and evaluate such facts and law is further evidenced by her comprehensive, well reasoned order.

the trial court’s decision. had previously asked. That the probate judge was acutely aware of both the they are warranted, and not merely where they result from dissatisfaction with Practitioners would be wise to raise such accusations in the future only when

community. See least twice, was required to remind the petitioner’s counsel of the questions he proceedings; on numerous occasions posed questions to the witnesses; and, at participants in the process” and “understands differing viewpoints”). Instead, the record reveals a judge who was attentive and engaged in the trial

address the court’s further finding regarding the couple’s reputation in the “displays respect for clients, judges, court staff, opposing counsel and all reviewed the record and have found no evidence to support this assertion.

BRODERICK, C.J.