2008-130, I/M/O MONIQUE D. AUBE AND RAYMOND N. AUBE

1960. The respondent is retired and receives a pension from his former

The record supports the following facts. The parties were married in

trial court’s failure to address his motion to reduce alimony. We affirm. (2007); Nault v. N & L. Dev. Co., 146 N.H. 35, 39 (2001). He also contests the post-judgment interest. See RSA 336:1 (Supp. 2008); RSA 524:1-a, :1-b was to receive under the parties’ divorce decree and awarded her statutory petitioner, Monique D. Aube, one-half the value of the survivor benefit that she approved by the Superior Court (O’Neill, J.) that required him to pay the challenges an order recommended by a Marital Master (Geiger, M.) and DALIANIS, J. In this appeal, the respondent, Raymond N. Aube,

Gregory M. Sargent on the brief, and Mr. Thorner orally), for the respondent. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Richard Thorner and

to press. Errors may be reported by E-mail at the following address: and orally), for the petitioner. Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the brief

page is: http://www.courts.state.nh.us/supreme. IN THE MATTER OF MONIQUE D. AUBE AND RAYMOND N. AUBE

No. 2008-130 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 alimony obligation. p. 2 respondent’s motion for reduced alimony, the court declined to reduce his responsible for half the value of the survivor benefit. With respect to the

the respondent to receive a higher pension benefit, each party would be

waiver benefited them both during and after the marriage because it allowed must have agreed to the waiver of the petitioner’s survivor benefit and that this survivor benefit. The court ruled that, in light of the facts that both parties

elections. The trial court agreed that the decree entitled her to the value of the

that she would have received under the decree but for the respondent’s prior $19,400.00 to fund an annuity to compensate her for the lack of death benefits pursuant to the parties’ divorce decree, she was entitled to an award of

amount became a judgment and that statutory interest accrued thereafter. 2 $276,114.43 as part of their property settlement. The court found that this date of their decree, November 27, 2006, the respondent owed the petitioner

this was done with the petitioner’s consent. The petitioner argued that,

court found that neither party was in contempt, it ruled that as of the effective

his death with no survivor benefit to the petitioner. The court assumed that

fairly equally between them.” one-half of this amount ($67.50) “so that the parties’ income remains divided found by the court. He asked the court to reduce his alimony obligation by

court held a hearing on these and other outstanding motions. Although the were inconsistent with the spirit of the decree. In November 2007, the trial November 2006, we affirmed it. in implementing portions of the final decree and/or had taken actions that right to survivor benefits. The respondent appealed the final decree and, in the marriage, the respondent had elected to have his pension terminate upon asset. At the time, neither party remembered the prior waiver of petitioner’s relative to the petitioner’s survivor benefit. The court was informed that during Additionally, by agreement of the parties, the court heard argument

income from his military disability pension was $135.00 less than the amount

Both parties moved for contempt asserting that the other party was slow

them to “name the other party as the survivor beneficiary” of this retirement

when it set the alimony amount. The respondent asserted that his monthly mutual mistake, arguing that the court miscalculated his monthly income In April 2007, the respondent moved for reduction in alimony due to

decree divided the respondent’s pension equally between them and required The petitioner filed for divorce in 2003. The parties’ 2005 final divorce

benefits under this pension was waived. employer. While the parties were married, the petitioner’s right to survivor time.”

rendered inequitable due to a delayed payment over a significant amount of reconsideration” of the parties’ final divorce decree.

involved. marital asset subject to equitable distribution under RSA 458:16-a (2004).

and the potential for further delay due to appellate review.” determine whether imposing interest would be warranted and, if so, what trial court’s award of interest, and remanded for an evidentiary hearing to interest must comply with RSA 458:16-a.” Id. at 771. Thus, we vacated the unaccounted for, an otherwise equitable distribution of an asset may be “[b]ecause of the court delay in ruling upon the [husband’s] motion for time value is, itself, an asset subject to equitable distribution, any award of

Id. at 771-72. “As the actual increase of a marital asset due to its

p. 3 336:1 because this kind of interest is imposed without considering the equities increase in the value of a marital asset because of its time value was itself a Id. at 772. A trial court may not, however, apply statutory interest under RSA the property distribution to account for the time value of money due to delay. payment is tendered. Id. A trial court faced with such a situation may amend during the delay or by dividing the award on a percentage basis as of the date assets under RSA 458:16-a. Id. They can do this by providing for interest in the distribution of the marital property due to post-divorce decree motions discretion to take the time value of money into account when equitably dividing Id. We, therefore, recognized that trial courts have the inherent

at 771. The danger, we observed, was that “[i]f the time value of money is award the wife statutory interest on certain assets pursuant to RSA p. 3 336:1

We ruled that awarding the wife statutory interest was error because any post-judgment interest was error under husband challenged this interest award. Id. at 769.

court’s stated purpose was to “compensate the [wife] for the unexpected delay

one such motion, the trial court amended the parties’ property settlement to upon various post-trial motions. alimony. We address each argument in turn. Nyhan, 147 N.H. at 768-69. As a result of decree; and ( p. 3 3) declined to address the issue raised by his motion to reduce N.H. 768, 771 (2002). In Nyhan, the husband appealed the trial court’s rulings value of the survivor benefit to which she was entitled under the divorce In the Matter of Nyhan and Nyhan, 147 The respondent first contends that awarding the petitioner statutory

I. Statutory Post-Judgment Interest Award

of law. In the Matter of Letendre & Letendre, 149 N.H. p. 3 31, 34 (2002). trial court unless they are lacking in evidential support or are tainted by error In divorce proceedings, we will sustain the findings and rulings of the

petitioner statutory interest; (2) required him to pay the petitioner one-half the The respondent argues that the trial court erred when it: (1) awarded the unless trial court determines that such an award would be inequitable); p. 4 entitling wife to statutory post-judgment interest from date of original decree

appellate court increased in 1996 following wife’s appeal);

divorce decree); interest on lump sum cash payment husband was obligated to pay her under

agreement became enforceable judgment when payment became delinquent,

money, which bore interest from the date of its entry until it was paid in full), entitled her to receive from husband’s individual retirement account), Dick v. Dick, 434 1994 decree where decree required him to pay her a lump sum, which (husband owed wife statutory post-judgment interest dating back to original

Gallner v. Gallner, 595 N.W.2d 904, 906, 907-09 (Neb. 1999)

P.2d 629, 630, 632-33 (Mont. 1983) (wife entitled to statutory post-judgment pay her until one year after decree became final); In re Marriage of Gibson, 671 sum husband was required to pay her under divorce decree where he did not 888 (Minn. Ct. App. 1986) (wife entitled to statutory post-judgment interest on requiring husband to pay wife $7,500 within three years from date of review denied, 772 N.E.2d 588 (Mass. 2002); Riley v. Riley, 385 N.W.2d 883,

conclude that it is. ordering husband to pay wife $100,000 was a judgment for the payment of final is a “judgment” to which statutory post-judgment interest may apply. We discretion to award wife post-judgment interest on amount divorce decree Karellas, 766 N.E.2d 102, 103-05 (Mass. App. Ct.) (1996 divorce decree judgment for the purposes of statutory post-judgment interest); Karellas v. payment was money due on a judgment); (counsel fee reduced to monetary judgment in 1985 divorce decree was a Coutant v. Coutant, 587 A.2d 1125, 1132-33 (Md. Ct. Spec. App. 1991)

(Ky. Ct. App. 2000) (provision in property settlement and divorce decree denied, 787 N.E.2d 155 (Ill. 2002); Hoskins v. Hoskins, 15 S.W.3d 733, 735

question before us, therefore, is whether a property division that has become 657, 659, 663-64 (Ill. App. Ct.) (trial court did not improperly exercise

interest on income earned by bond awarded to her in original decree; cash Swope v. Swope, 834 P.2d 298, 303-04 (Idaho 1992) (wife entitled to statutory judgments for the purpose of awarding statutory post-judgment interest. See judgments enrolled as a result of an equitable distribution award are jurisdictions that have considered this issue have concluded that money This is an issue of first impression. The majority of courts in other

a year before the trial court awarded the petitioner interest. The threshold awarded the wife interest, the property distribution here became final in 2006, because the appeal process had not been completed when the trial court judgment interest. Whereas the property division in Nyhan was not yet final an award of pre-judgment interest, whereas here, the award at issue is of post- Nyhan is distinguishable from the instant case. At issue in Nyhan was

Id. at 772. would be a fair rate “to achieve an equitable distribution of the marital assets.” domestic judgment debtors.

p. 5 promptly. We can discern no reason to remove this incentive for interest further encourages judgment debtors to pay judgments award which is not permitted. The running of post-judgment

would effectively be a modification of the equitable distribution

amount of interest which would normally accrue on the judgment award. Moreover, allowing the enforcing court to reduce the judgment interest to compensate for the decrease in value of the

would no longer be equitable without the imposition of post-

constitute the same division if payable in 1988 and, therefore, determined to represent an equitable division in 1983 would not fails to satisfy a judgment owed to another. An amount of money

purposes, just as with any other money judgment where one party

from judgments for the recovery of money in other types of cases.”

and the husband benefited from retaining the money for his own Clearly, the wife was deprived of the use of the money owed to her

N.W.2d at 888; see Casey, 428 S.E.2d at 716. As one court has explained: interest unless court orders otherwise and here court ordered otherwise); Riley, 385 divorce cases, however statute itself states that judgment shall provide for such there is “no reason to distinguish an award of money in a dissolution action is a “judgment” to which statutory post-judgment interest applies because Courts in other jurisdictions have reasoned that a final property division

made”). settlement “is entitled to interest at the statutory rate until the payment is distribution money awards); (2008) (noting that spouse to whom cash is awarded in property division or special hardship proven); 24 Am. Jur. 2d Divorce and Separation § 532, at 736 decrees), interest on lump sum award under divorce decree should be awarded unless Summers v. Summers, 465 S.E.2d 224, 228-29 (W. Va. 1995) (post-judgment

(statute regarding post-judgment interest applies to monetary awards in interest); Shakelford v. Shakelford, 571 S.E.2d 917, 922 (Va. Ct. App. 2002) cases are money judgments subject to statutory rate of post-judgment 2009 WL 454009, at *11 (Tenn. Ct. App. Feb. 24, 2009) (cash awards in divorce

determined that statutory post-judgment interest did not apply to equitable Casey v. Casey, 428 S.E.2d 714, 715 (S.C. 1993) (trial court erred when it

discretionary appeal not allowed, 659 N.E.2d 1286 (Ohio 1996);

(post-judgment interest statute applies to obligations arising out of divorce to pay wife); Rizzen v. Spaman, 665 N.E.2d 283, 293 (Ohio Ct. App. 1995) awarding statutory post-judgment interest on lump sum husband was required 427, 429-30 (App. Div. 2000) (trial court providently exercised its discretion in cash payment required under divorce decree); Lipsky v. Lipsky, 715 N.Y.S.2d N.W.2d 557 (N.D. 1989) (statutory post-judgment interest applied to lump sum reduced to a judgment).

p. 6 discretionary,

portion of decree requiring husband to pay her $10,000 in three installments

statutory post-judgment interest in divorce cases are mandatory or

becomes a judgment when due and payable.

judgment upon which interest could be imposed until wife sought to have deemed judgments when due and payable.”

judgment when due and payable upon which post-judgment interest must be

compare Martin, 2009 WL 454009, at *11 (statutory interest on

Although courts in other jurisdictions disagree as to whether awards of

whether a past-due installment owed under a final property distribution

185 S.W.3d 924, 930 (Tex. Ct. App. 2006) (past due installment did not become cert. denied payments ordered or administered by the court under this chapter shall be, 445 So. 2d 300 (Ala. 1984). But see de la Garza v. de la Garza, reenacted as RSA 461-A:14, VI (Supp. 2008)), under which “[a]ll support accord Morgan v. Morgan, 445 So. 2d 297, 299 (Ala. Civ. App. 1983),

(Alaska 2004) (past due installment required under property division became Asset Distribution, 10 A.L.R.5th 191 (1993); Cline v. Cline, 90 P.3d 147, 156 Separation: Award of Interest on Deferred Installment Payments of Marital

lump sum payment, not installment payments. We express no opinion as to Giacomini, 151 N.H. 775, 777 (2005). Moreover, the instant matter involves a recover unpaid child support installments. See In the Matter of Giacomini & limitations for judgments to the mother’s cause of action against the father to

court. decided before the legislature enacted RSA 458:17, VII (2004) (repealed and Griffin and McCrady are no longer good law, however, as they were

until reduced to judgment after accrual. due installments of alimony and child support did not amount to judgments

Id. In McCrady, 117 N.H. at 763, we observed, in dicta, that past-

held that the mother was not automatically entitled to interest on the installment of child support did not become a judgment when it fell due, we

RSA 508:5, we held that the trial court erred by applying the statute of Id. at 786. Because they were not “judgments” within the meaning of they were not “judgments” until they were reduced to final judgment by a meaning of RSA 508:5 (1997). Griffin, 120 N.H. at 785. We concluded that whether past-due child support installments were “judgments” within the McCrady v. Mahon, 117 N.H. 762, 763 (1977). In Griffin, the issue was mistakenly relies upon Griffin v. Avery, 120 N.H. 783, 785-86 (1980), and for the purposes of statutory post-judgment interest, the respondent To support his assertion that the final decree here was not a “judgment”

interest. proceeded to final judgment is a “judgment” subject to statutory post-judgment and hold that a property division set forth in a divorce decree that has Casey, 428 S.E.2d at p. 7 716 (citation omitted). We find this reasoning persuasive 7 fraud, undue influence, deceit, misrepresentation or mutual mistake.

exercise of discretion standard.

determining the weight to be given evidence. the petitioner statutory post-judgment interest on this sum was inequitable. did so based upon an implied finding of mutual mistake. conflicts in the testimony, measuring the credibility of witnesses, and evidence, we defer to the trial court’s judgment on such issues as resolving

court modified the parties’ property settlement absent the requisite finding of was entitled under the divorce decree. He contends that by so doing, the trial 43 p. 7 7-38 (1997); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining him to pay the petitioner one-half the value of the survivor benefit to which she See Bonneville v. Bonneville, 142 N.H. 435, trial court’s decision to modify a property division under our unsustainable uncontroverted evidence. deciding, that the trial court modified the property distribution. We review the Because the parties do not argue otherwise, we assume, without

court in the divorce decree. We cannot say as a matter of law that awarding the trial court modified the parties’ property settlement, but contends that it Sommers v. Sommers, 143 N.H. 686, 689 (1999). The petitioner agrees that payment would not have been delayed. Although there was conflicting

was responsible for the respondent’s failure to pay the judgment. The respondent next argues that the trial court erred when it required

testimony of any witness or party, and is not required to believe even II. Modification of Property Distribution

respondent deprived the petitioner of $2 p. 7 76,114.43 awarded her by the trial interest award was inequitable, we disagree. Here, for more than a year, the provide certain documentation and refusal to meet with him, he asserts that To the extent that the respondent contends that the post-judgment But for her refusal to accept partial payment earlier in the year, failure to discretion because it was the petitioner who delayed payment of the judgment. trial court was not compelled on the record before it to find that the petitioner

purposes of this appeal. p. 7 780 (2003). The fact finder may accept or reject, in whole or in part, the

The respondent contends that the trial court unsustainably exercised its

Governor, 151 N.H. 608, 610-11 (2004).

within the sound discretion of the court, and we will so assume for the parties agree that awarding post-judgment interest in a divorce case rests issue because neither party argues that such awards are mandatory. Both judgment interest unless award would be inequitable), we need not decide this mandatory), with Hoskins, 15 S.W.3d at p. 7 735 (wife entitled to statutory postmoney judgments, including those resulting from divorce decrees, is to reconsider.

p. 8 issue he raised in his motion for reduced alimony and reiterated in his motion

Based upon this record, we cannot conclude that the trial court overlooked the court’s attention in his motion for reconsideration, which the trial court denied. per month than the court had found. The respondent brought this to the trial

reduced to reflect the fact that his veteran’s disability benefit is $135.00 less

respondent’s motion concerned whether his alimony obligation should be the petitioner under his military pension. By contrast, the issue in the because it would cost him $37.00 per month to pay for a survivor benefit for

value of the survivor benefit to which the divorce decree entitled the petitioner. uphold the trial court’s decision to require the respondent to pay one-half the discussed whether the respondent’s alimony obligation should be reduced petitioner’s survivor benefit was inequitable as a matter of law. Accordingly, we

alimony. The record submitted on appeal does not support this assertion.

BRODERICK, C.J.