2007-100, IN THE MATTER OF SUSAN MARTEL AND ROBERT MARTEL

The respondent, Robert Martel, appeals from a final decree of

Bodwell on the brief and orally), for the respondent. to press. Errors may be reported by E-mail at the following address: Borofsky, Amodeo-Vickery & Bandazian, P.A.

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 p. 2 II. Respondent’s Issues

presented, they will stand.” In the Matter of Hampers & Hampers

discretion. If the court’s findings can reasonably be made on the evidence overturn the trial court’s decision absent an unsustainable exercise of property distribution in fashioning a final divorce decree, [and] we will not

of deposit be divided equally. and (4) failing to order that any interest earned on the parties’ joint certificate May 5, 2006 order; (3) failing to award the petitioner attorney’s fees and costs; “[W]e afford trial courts broad discretion in determining matters of

V; (2) failing to find the respondent in contempt for his failure to comply with a

economic loss to the marital estate. owned by the parties which resulted in substantial

erred by: (1) failing to grant her a fault-based divorce pursuant to RSA 458:7, issued by the court. The petitioner cross-appeals, arguing that the trial court failing to find the petitioner in violation of a temporary non-hypothecation order which caused the diminution in value of property

unequal distribution of the marital assets in favor of the petitioner; and (2) marital residence and the actions of [the respondent]

marital property is equitable. Id

The respondent argues that the trial court erred by: (1) granting an the need of the custodial parent in occupying the

and equitable based on the duration of the marriage, and his IRA account. an unequal distribution of the marital assets is fair

circumstances for the court to consider in determining that an equal

RSA 458:16-a, II (2004) creates a presumption that equal distribution of

275, 285 (2006) (quotation and citation omitted).

respondent was awarded, among other assets, the parties’ property in Laconia

The court held that its discretion by unequally dividing the marital assets in favor of the petitioner. The respondent first argues that the trial court unsustainably exercised

retirement plans, and her stock option plans through her employer. The the petitioner. In addition to other assets, she received the marital home, her the marriage. The final decree ordered an unequal division of assets in favor of

A. Property Distribution

grounds that irreconcilable differences caused the irremediable breakdown of Following a three-day trial, the court granted a decree of divorce on the p. 3 3. Diminution in Value of Property

basis for the trial court to award an unequal division of the assets.

facts of this case, therefore, RSA 458:16-a, II(e) does not provide a sufficient petitioner had a gross monthly income of over six thousand dollars. Upon the old at the time of the divorce, the marital home was unencumbered and the

Our review of the record shows that the parties’ son was eighteen years

“that [the respondent’s] actions in stock trading caused . . . the loss of over

the respondent managed the investment account. The court further found

or own its household effects.” the custodial parent, if any, to occupy or own the marital residence and to use RSA 458:16-a, II(e) provides that the court may consider “[t]he need of

risky investments. The court found, and the respondent does not dispute, that 1. Duration of the Marriage closed in 2001, it lost approximately one million dollars through a series of Morgan Stanley/Dean Witter for retirement. From 1999 until the account was

2. Custodial Parent Occupying Marital Residence each factor in turn. Sometime around 1997, the parties set up an investment account with The respondent argues that the court misapplied these factors. We address

child support with which to provide for their son. divorce, and the petitioner earned a significant income and received significant outright, the parties’ only child was eighteen years old at the time of the

in value of property owned by either or both of the parties,” RSA 458:16-a, II(f).

award an unequal property distribution because the marital home was owned

assets.

either party during the marriage which contributed to the growth or diminution occupy or own the marital residence,” RSA 458:16-a, II(e); and the “actions of the marriage,” RSA 458:16-a, II(a); the “need of the custodial parent . . . to

The respondent argues that the court erred in relying upon this factor to

therefore, misapplied this factor to justify an unequal division of the parties’ include, among others: (1) a marriage of short duration . . . .”). The trial court, 740 (1987) (“Special circumstances that may justify an unequal distribution justifies an equal division of assets. See McAlpin v. McAlpin, 129 N.H. 737, married for almost twenty years. A long-term marriage is a factor which following factors were highlighted by the court in this case: the “duration of The record shows that, at the time of their divorce, the parties had been distribution “would not be appropriate or equitable.” RSA 458:16-a, II. The p. 4 In the Matter of Carr & Edmunds

to include. said or add language that the legislature did not see fit and will not consider what the legislature might have

interpret legislative intent from the statute as written

plain and ordinary meaning to the words used. We examining the language of the statute, we ascribe the words of the statute considered as a whole. When

arbiters of the legislative intent as expressed in the

In matters of statutory interpretation, we are the final

well as the substantial tax credit the parties took for the stock loss. court failed to consider his actions in increasing the value of marital assets as

suggest that he acted with the intent to deprive the petitioner of assets, and the

five years before either party contemplated divorce, there was no evidence to his or her fair share of the marital estate.” He argues that the loss occurred the time when the marriage is coming to an end, to deprive the other spouse of

time period.” (citation omitted)). Black’s Law Dictionary equates to the term “dissipation” and “requires a finding of wrongful intent, at

during

for personal benefit when a divorce is imminent.” Id 4

marriage,’ so that the court is not limited to an examination of any particular with the respondent that this term equates with the phrase “diminution.” The respondent argues that the term “diminution” in RSA 458:16-a, II(f)

divorce as it allows the trial court to consider “[t]he actions of either party value of property owned by either or both of the parties.”

illegal or inequitable purpose, such as a spouse’s use of community property

directs the trial court to examine the conduct of the parties ‘during the The word “dissipation” does not appear in the statute and we disagree of Coyle, 671 N.E.2d 938, 943 (Ind. Ct. App. 1996) (“The [Indiana] statute the marriage,” RSA 458:16-a, II(f) (emphasis added). See In re Marriage

addition, the statute does not require that the conduct occur in anticipation of party during the marriage which contributed to the growth or diminution in language of RSA 458:16-a, II(f), therefore, does not require malicious intent. In

2004). In contrast, “dissipation” is defined as “[t]he use of an asset for an decreasing, lessening, or taking away.” Black’s Law Dictionary 490 (8th ed.

(citations omitted).

circumstance justifying an unequal division of assets, “[t]he actions of either RSA 458:16-a, II(f) provides that the court may consider, as a special

least in part, upon this loss. $1,000,000.00 in family assets,” and based the unequal asset distribution, at marital partner.” In re Marriage of Williams

p. 5 any other factor the court deems relevant. the other spouse is unable to maintain a similar lifestyle following divorce; and whether the conduct diminished the total marital assets to such an extent that assets and . . . apportion a higher debt load or fewer assets to the wasteful

the nature of the conduct; the other spouse’s knowledge of the conduct; they may consider “whose negatively productive conduct depleted the couple’s The Court of Appeals of Washington has instructed its trial courts that

factors such as: conduct which contributed to the growth in value of property; which resulted in a diminution in value of property, a trial court must consider II(f) to support an unequal distribution of assets due to a spouse’s conduct 5 unequal property distribution.

divorce.” Kittredge support the other spouse from the much-diminished estate at the time of

We find these cases persuasive and hold that in applying RSA 458:16-a, other factors relevant in determining whether a spouse’s actions justify an intent or timing element into their asset distribution statutes but have applied We look, instead, to those jurisdictions which have declined to read an including whether the expenditures have rendered the spouse unable to

Id

amount to a dissipation of marital assets. Id, 803 N.E.2d at 315.

dissipation considers them in the light of that spouse’s over-all contribution, Kittredge: “[D]etermination whether a spouse’s expenditures constitute The Supreme Judicial Court of Massachusetts adopted a similar view in

. “entertainment cost[ ]”); and the husband’s knowledge of the wife’s gambling. assets where a spouse’s conduct resulted in the loss of marital assets. See the nature of the conduct (the court equated legalized gambling to an requires either an intent or timing element to justify an unequal division of considered included: the amount of income the wife brought into the marriage;

determine that the wife’s gambling losses throughout the marriage did not Williams, the court approved the trial court’s consideration of various factors to order to deprive the other spouse of his or her fair share of the marital estate”). App. 1996) (quotation omitted), review denied, 937 P.2d 1102 (Wash. 1997). In end, from which it can be inferred that the spouse’s expenditures were made in, 927 P.2d 679, 683 (Wash. Ct. personal enjoyment at a time when the marriage is apparently coming to an

We decline, therefore, to adopt the law from those jurisdictions that

where courts “define dissipation as a spouse’s expenditures for his or her own e.g., Kittredge v. Kittredge, 803 N.E.2d 306, 313 (Mass. 2004) (citing cases

p. 6 into consideration the actions of the parties leading up to the final hearing and

The court denied the respondent’s requests, holding: “The court took

Motion for Contempt and Attorney’s Fees should be granted.”

and is a violation of the temporary decree without just cause. Respondent’s

temporary order by cashing in stock options, which constituted a marital asset, following request for a ruling of law: “[The petitioner] violated the terms of the on May 31, 2006, $5,880.87; and on August 2, 2006, $3,115.91;” and the

stock options valued at $3,114.73, $4,492.76; on March 29, 2006, $3,470.04;

cashed in stock options valued at $3,372.28. On March 6, 2006, she cashed in request for a finding of fact: “On or about April 11, 2005, [the petitioner] At the final divorce hearing, the respondent submitted the following

(Emphasis omitted).

B. Violations of Non-hypothecation Order

opinion.

usual course of business. necessary living expenses, or (3) in the ordinary and

remand to determine asset distribution in a manner consistent with this

agreement of both parties, or (2) for reasonable and

Accordingly, we vacate the trial court’s division of the marital assets and

in value of property owned by the parties.”

belonging to either or both parties except (1) by written whatsoever disposing of any property, real or personal, hypothecating, concealing or in any manner

when it found that “the actions of [the respondent] . . . caused the diminution

restrained from selling, transferring, encumbering,

$131,000. The record fails to show that the trial court considered these factors parties to claim a loss on their taxes, contributing to a tax credit of nearly marital assets besides the stock account, and that the stock loss allowed the

Until further order of the court, each party is

language:

addition, there is evidence in the record that the parties had other significant

On April 20, 2005, the court issued a notice containing the following

money in the stock market and that he managed the account daily. In petitioner also testified that she was aware that the respondent had invested account from the purchase and sale of properties and businesses. The

the respondent contributed the initial start-up funds deposited into the There is evidence in the record before us, and the trial court found, that finding of contempt is required under these circumstances, see p. 7 that a finding that the petitioner violated the order without just cause or a

that she be held in contempt and pay his attorney’s fees. While we cannot say

that the petitioner violated the court’s order without just cause and his request The trial court also denied the respondent’s request for a ruling of law

unsustainable exercise of discretion.

Accordingly, we reverse the court’s denial of this requested finding of fact as an she cashed in the stock options to pay her attorney and her accountant. issued. As to the remaining occurrences, the petitioner admitted at trial that

order. This act, therefore, cannot be a violation of an order that had yet to be

first allegedly occurred on April 11, 2005, nine days before the court issued its

cites five dates on which the petitioner allegedly cashed in stock options. The stock options in violation of the court’s April 20, 2005 order. The respondent We turn now to the respondent’s allegation that the petitioner cashed in

III. Petitioner’s Issues

money from her 401(k) as they are not properly before us. order by withdrawing money from their joint bank account and borrowing additional arguments on appeal that the petitioner further violated the court

reason.” To obtain a divorce on fault grounds under RSA 458:7, V, “the

petitioner cashing in stock options. We decline to address, therefore, his

of law and motion for contempt and remand for reconsideration. finding of fact, we vacate the court’s denial of the respondent’s requested ruling its discretion in refusing to do so.”), given the court’s error in denying the above when a party “has so treated the other as seriously to injure health or endanger

the respondent submitted to the trial court were limited to the issue of the We note that the requests for a finding of fact and a ruling of law which A. Grounds for Divorce

respondent in contempt, but whether the trial court unsustainably exercised divorce pursuant to RSA 458:7, V, which provides for a fault-based divorce The petitioner first argues that the trial court erred in failing to award a

stock options in 2006 and borrowing money from her 401(k) in October 2006.

discretionary and the proper inquiry is not whether we would have found the Giacomini & Giacomini, 150 N.H. 498, 500 (2004) (“The contempt power is

by withdrawing money from their joint bank accounts in April 2005, cashing in ruling of law. He argues that the petitioner directly violated the court’s order exercise of discretion by denying these requests for a finding of fact and a

The respondent argues that the trial court engaged in an unsustainable p. 8 See part of the respondent, caused the irremediable breakdown of the marriage. support its finding that irreconcilable differences, and not misconduct on the

unsustainable exercise of discretion as there is evidence in the record to

We cannot say, therefore, that the trial court engaged in an

allegations that the respondent had an affair were not proven. that the respondent be held in contempt. Although the record does not reflect

endanger her health or reason.” The court also found that the petitioner’s the trial court “overlooked” her July 2006 motion and again requested a finding

conduct during the course of the marriage was treatment so as to seriously court found that the petitioner “failed to substantiate that [the respondent’s] submitted a motion for reconsideration on November 30, 2006, arguing that marriage was irreconcilable differences. In the final decree of divorce, the trial issued by the court in respect to the Eastern Account.” The petitioner respondent] shall repay the deficit remaining from the reimbursement order

court was entitled to consider, that the primary cause for the breakdown of the trial court addressed this issue in the final decree of divorce, holding: “[The

to injure health or endanger reason, the above testimony is evidence, which the respondent had failed to return the full amount to the Eastern Account. The 2006, the petitioner submitted another motion for contempt, arguing that the the parties’ joint account at Eastern Savings Bank (Eastern Account). In July 8

respondent’s conduct to substantiate her allegations of treatment so serious as with someone else.” Although the petitioner also testified to instances of the having a great time. And I got tired of living with someone who spent his time to comply with a previous order to return funds, which he had withdrawn, to

B. Contempt

the house with me. He spent an inordinate amount of time with other people issued an order on May 5, 2006, finding the respondent in contempt for failing In response to a motion for contempt filed by the petitioner, the court

question for the trial court. Id RSA 458:7-a. irreconcilable differences or the fault of one of the parties was a factual

V; and (2) the respondent’s behavior was the primary petitioner replied: “I lived with a man who was unhappy every day of his life in of the “primary and overriding cause for the failure of [the] marriage.” The At trial, the respondent’s counsel asked the petitioner to give her opinion

Whether the irremediable breakdown of the marriage was caused by

‘seriously to injure health or endanger reason’ during the marriage, RSA 458:7, petitioner was required to show that: (1) the respondent so treated her as

unless the evidence does not support them or they are legally erroneous. Id.

of the marriage.” In the Matter of Mannion & Mannion, 155 N.H. 52, 56 (2007).

p. 9 final decree and subsequent order. Although the court is not compelled to find Eastern Account, in direct violation of the court’s orders, when it issued its

was aware of the respondent’s repeated failure to replace the funds in the

presented.”

court’s refusal to find a party in contempt. The record reveals that the court We refer to the standard of review we laid out above regarding a trial find an adequate basis on which to make such an award under the facts

The court subsequently denied the petitioner’s request, holding that it “cannot that she is entitled to attorney’s fees under RSA 458:51 (2004). that the issue of attorney’s fees would be addressed in the divorce proceedings. or her own counsel fees.” Hampers the court in April 2006. In the domestic violence final order, the court held established exception to the rule that each party is responsible for paying his authorization, a court rule, an agreement between the parties, or an

it.” Id 9

Arcidi v. Town of Rye

respondent in contempt for failing to follow the court’s May 2006 order and The petitioner argues that the trial court erred in failing to find the for the attorney’s fees she incurred regarding a domestic violence matter before

“An award of attorney’s fees must be grounded upon statutory

some support in the record for the trial court’s determination, we will uphold

C. Attorney’s Fees exercise of discretion standard, giving deference to the trial court’s decision. Accordingly, we vacate and remand for reconsideration.

First, the petitioner argues that the court erred in denying her request since the original reimbursement order in May 2006.”

. (quotation omitted). requests for attorney’s fees. The petitioner argues that the trial court erred by denying her multiple extent clearly unreasonable to the prejudice of the objecting party. If there is the discretion must have been exercised for reasons clearly untenable or to an

review the trial court’s denial of attorney’s fees under an unsustainable contempt, given his repeated and undisputed violations of the court’s orders., 154 N.H. at 289 (quotation omitted). We

equitable and efficient being paid directly to [the petitioner] as time has passed into the Eastern Account, ruling: “returning these particular funds would be denied a request from the respondent to deposit the amount still owed directly

fails to offer justification for why the respondent should not be held in

motion for reconsideration, in an order issued December 29, 2006, the court that the trial court issued an order specifically addressing the petitioner’s established right,” as contemplated by Harkeem p. 10 requests. Regarding her other allegations, we can find no “clearly defined and 10

defined.” (quotations omitted)). petitioner relies upon our decision in Harkeem

disagreements and accusations in which both parties engaged. Cf nature, and the petitioner’s assertions of the respondent’s bad faith amount to

to address it. See

the record reveals that the trial court did award attorney’s fees on some of her case. See the court’s order was clearly untenable or unreasonable to the prejudice of her As the party appealing this issue, the petitioner must demonstrate that issues that were in contest . . . . The rights in this case were far from clearly oppressive, vexatious, arbitrary, capricious, or bad faith conduct.” The Sanborn, 155 N.H. 704, 708 (2007) (“There were numerous factual and legal domestic matter under Harkeem v. Adams. Blouin v.

The parties were engaged in a contentious divorce, which is adversarial by to secure justifying an award of attorney’s fees. Harkeem, 117 N.H. at 691. We find this argument to be inadequately developed, and we therefore decline, which the petitioner sought

Of the petitioner’s numerous allegations of bad faith listed in her brief, party has acted in bad faith. Id

requests for attorney’s fees in the divorce litigation “due to [the respondent’s] Next, the petitioner argues that The petitioner also argues that she was entitled to attorney’s fees in the the trial court erred in denying her

Landry v. Landry, 154 N.H. 785, 791 (2007).

“Other relief may she attempted to secure her safety, a clearly defined and established right.” grant to the victim of domestic violence. The statute reads, in pertinent part: violations of the court orders caused [the petitioner] to incur attorney’s fees as RSA 173-B:5 (Supp. 2007), which addresses the types of relief a court may this issue consists of the following statement: “[The respondent’s] numerous

assistance to secure a clearly defined and established right” and the opposing provides for attorney’s fees “[w]here an individual is forced to seek judicial such relief., 117 N.H. 687 (1977). Harkeem award of attorney’s fees is permissive; the trial court is not required to order (emphasis added). Under the plain meaning of the statutory language, the court engaged in an unsustainable exercise of discretion. respondent. She has not met her burden, therefore, to demonstrate that the the fact that a domestic violence final order was entered against the that would compel an award of attorney’s fees under RSA 173-B:5, aside from

Arcidi, 150 N.H. at 704. The petitioner fails to articulate any facts The petitioner argues that she is entitled to attorney’s fees pursuant to

(10) Ordering the defendant to pay reasonable attorney’s fees.” RSA 173-B:5, I

include: . . . (b) Other relief including, but not limited to: . . . p. 11 Affirmed in part; reversed in part; 11

D. Equal Division of Interest Earned

property distribution in its entirety. We need not decide this issue, however, given that we vacate the court’s

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

attorney’s fees. unsustainable exercise of discretion in denying the petitioner’s requests for

equally.

vacated in part; and remanded

Accordingly, we cannot say that the trial court engaged in an

that interest earned on the parties’ joint certificate of deposit be divided Finally, the petitioner argues that the trial court erred by failing to order