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2009-216, IN THE MATTER OF MICHELE SUKERMAN AND WILLIAM SUKERMAN
Derry Family Division ( Authority (MassPort) Fire Rescue in Boston. In 2007, he suffered a heart 2007, the respondent worked as a firefighter with the Massachusetts Port breakdown of the marriage. See RSA 458:7-a (Supp. 2009). From 1991 to they were divorced due to irreconcilable differences that had led to the by the record. The parties were married in October 1988. Twenty years later, The following facts were either found by the trial court or are supported
accidental disability pension benefit. We affirm. contends the family division erred in awarding the petitioner a portion of his divorce proceeding filed by the petitioner, Michele Sukerman. The respondent
Moore, J.) distributing the parties’ marital property in a
HICKS, J.
The respondent, William Sukerman, appeals the order of the
brief and orally), for the respondent. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
for the petitioner. to press. Errors may be reported by E-mail at the following address: Strategies, PLLC, of Manchester (Nancy A. DeAngelis on the brief and orally), Cynthia M. Weston, of Londonderry, on the brief, and Legal Resource
Opinion Issued: December 31, 2009 Argued: November 4, 2009
IN THE MATTER OF MICHELE SUKERMAN AND WILLIAM SUKERMAN
No. 2009-216 editorial errors in order that corrections may be made before the opinion goes Derry Family Division Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
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
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 2
distribution law.”
benefits. caused by the disability, or whether they more closely resembled retirement whether they represented compensation for lost earning capacity and suffering,
Id. at 50; see also RSA 458:16-a ( 2004) (providing that “all
that a mechanistic approach “best comports with New Hampshire’s equitable injury settlement was marital property. Preston, 147 N.H. at 50-51. We found equitable distribution. In support of this argument, he cites approach in favor of a mechanistic approach to hold a husband’s personal However, in Preston, we overruled Fabich ’s application of the functional
result in Fabich, we employed the above described “functional approach.” Id. review. we held, were not subject to equitable distribution. Id. at 580. To reach this however, because he has failed to demonstrate that he preserved it for our Id. at 581. The portion of benefits that were “true disability benefits,” until after the parties were separated. We do not address this argument, component is not marital property because he did not become eligible for it retirement benefits were subject to equitable distribution depended upon 147 N.H. 48 ( 2001). In Fabich, we held that whether a spouse’s disability 144 N.H. 577 (1999), overruled in part by In the Matter of Preston and Preston,
Fabich v. Fabich,
that his accidental disability benefits constituted marital property subject to The respondent also contends that the trial court erred in concluding
See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
plan and, as such, a divisible property right.” This appeal followed. disagreed, finding that the “[r]espondent’s ‘benefit’ is a contributory benefit The respondent appears to argue that the accidental disability benefits compensate him for future earnings and pain and suffering. The trial court one-half of his accidental disability retirement benefits because they ( 2002). or an error of law, In the Matter of Letendre & Letendre, 149 N.H. 31, 34 of discretion, In the Matter of Ramadan & Ramadan, 153 N.H. 226, 232 (2006), court’s rulings regarding property settlement absent an unsustainable exercise Matter of Costa, 156 N.H. 323, 326 (2007). We will not overturn the trial matters of property distribution when fashioning a final divorce decree. In the ordinary retirement benefit. On appeal, we afford the trial court broad discretion in determining consists of an annuity, an accidental disability retirement benefit, and an
reconsideration, arguing that the petitioner should not be entitled to collect petition for divorce.” The respondent filed a motion for clarification and accrued between the date of the marriage . . . and the date of the filing of the awarded the petitioner one-half of the respondent’s entire “pension plan which (West 2001 & Supp. 2009). In the final divorce decree, the family division
See Mass. Gen. Laws Ann. ch. 3 2 §§ 1 et seq.
receive a pension under the Massachusetts retirement system. This pension attack, forcing him to retire from MassPort in August 2008. He then began to subject to equitable distribution.
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mechanistic approach define disability retirement benefits as marital property here. RSA 458:16-a, I. Moreover, other states that have applied the benefits,” benefits similar to the respondent’s accidental disability benefits
permitted by federal law . . . military retirement and veterans’ disability
concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,
RSA 458:16-a specifically states that marital property includes “[t]o the extent Affirmed. such pension benefits are marital property subject to equitable distribution. accidental disability benefits in the definition of marital property; therefore, Accordingly, we affirm the trial court’s ruling.
884, 890 (Ill. App. Ct. 1980) (accidental disability benefits). 601, 602 (Ark. 1985) (disability benefits); In re Marriage of Smith, 405 N.E.2d
See, e.g., Morrison v. Morrison, 692 S.W.2d
contention that parties” is subject to equitable distribution). We reject the respondent’s
at 49 (quotation omitted). Here, RSA 458:16-a contains no exception for marital property unless it is specifically excepted by statute. Preston, 147 N.H. marriage “without regard to title, or to when or how acquired” is deemed to be Under the mechanistic approach, all property acquired during the
function” of a benefit and Preston applies when it cannot.
Fabich applies when the court can discern “the temporal
either or both parties, whether title is held in the name of either or both tangible and intangible property and assets, real or personal, belonging to