2009-918, In the Matter of Kenneth R. Canaway and Mary N. Canaway

Conklin & Reynolds, P.A.

No. 2009-918

Laconia Family Division

income at present and in the future.” indefinite alimony because of the parties’ “disproportionate abilities to earn years and $1,000 per month indefinitely thereafter. The court ordered alimony of $2,500 per month for one year, $1,500 per month for the next two dividing the parties’ marital assets, the court ordered the husband to pay 1994 following twenty-four years of marriage. At that time, in addition to The record supports the following facts. The parties were divorced in

Law Offices of Paul M. Colella ___________________________

decision of the Laconia Family Division (Sadler DUGGAN, J. The petitioner, Kenneth Canaway (husband), appeals a

awarding the wife attorneys’ fees. We affirm. terminate alimony payments to the respondent, Mary Canaway (wife), and

Colella on the brief and orally), for the respondent.

and 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 motion for contempt. p. 2 appealed both the denial of his motion to modify and the granting of the wife’s the court ordered the husband to pay $4,560 in attorneys’ fees. The husband without trying to discuss the situation or make partial payment.” As a result, wife’s motion for contempt because the husband “unilaterally stopped paying paying alimony as provided in the 2007 order. The court also granted the payment of $5,250, representing seven months of arrearage, and to continue husband’s motion to terminate alimony and ordered him to make a lump sum businesses without receiving compensation. Accordingly, the court denied the allowed his fiancée to run her businesses out of his home and consulted for her helping to clear her debt and run her businesses. The court also found that he spend his available funds in other areas such as supporting his fiancée and The court determined that the husband had the ability to pay, but chose to financial balance,” and that her budget was about $500 in deficit each month. The trial court found that even with alimony, the wife lived in a “delicate

2008. alleging that the husband unilaterally ceased paying alimony in December contributions to her IRA. In response, the wife filed a petition for contempt, that the wife’s income exceeded his own, even allowing her to make monthly medical condition restricted his ability to find employment. He further alleged alimony, and that he had little to no income. He also contended that his he had to withdraw money from his IRAs to pay his living expenses and had been forced to borrow $69,000 against his home “to make ends meet,” that again argued that he could no longer afford to pay alimony, alleging that he In 2009, the husband brought his third motion to terminate alimony. He

substantial unencumbered assets. skills that would allow him to obtain employment, and that he still owned likely to change, that the husband had a college education and employment court that issued the original alimony order knew the parties’ situations were found that the wife still needed alimony despite an increase in income, that the alimony, but reduced the payments to $750 per month, indefinitely. The court meet his reasonable expenses. The court denied his motion to terminate financial conditions, his health, and his inability to earn a sufficient income to alleging that alimony was no longer justified based upon the parties’ current In 2007, the husband again moved to terminate his alimony obligation,

the present order unfair or improper.” “substantial unforeseen change in circumstances making the continuation of to work. The court denied his motion, finding that there had not been a could not find another job. He also alleged that poor health limited his ability alleging that his employer had laid him off because of downsizing and that he In 2003, the husband filed the first of three motions to modify alimony, the husband consulted for one of his fiancée’s businesses for no compensation, p. 3 retirement account worth approximately $53,000. The court also found that home, a secondary motor vehicle worth approximately $13,000 and a determined that the husband had approximately $250,000 in equity in his downturn, and struggled to find employment. Nonetheless, the court health issues, lost a significant portion of his retirement in the stock market In its order, the court noted that the husband suffered from numerous

husband still had sufficient resources to pay alimony, but chose to support his

amount either improper or unfair.” Laflamme v. Laflamme circumstances has arisen since the initial award, making the current [alimony] neither. Rather, it properly considered the husband’s ability to pay, see requesting an alimony modification must show “that a substantial change in money in order to pay alimony. The short answer is that the court here did as may be necessary, and may award costs as justice may require.” The party to require him to either sell assets or use the equity in his home to borrow party, may revise and modify any order made by it, may make such new orders 458:19, I and VII, the court, upon proper application and notice to the adverse The husband first argues that the trial court did not have the authority RSA 458:14 (2004) provides that “[e]xcept as otherwise provided in RSA

evidence regarding his changed circumstances, the court found that the payments, see Laflamme, 144 N.H. at 527. After hearing all of the husband’s circumstances since the initial award justifying the termination of his alimony (Supp. 2009), and whether the husband proved a substantial change in 458:19, I(b) (Supp. 2009), the wife’s need for alimony, see RSA 458:19, I(a)

alimony award.” Id. at 528-29. a substantial change in circumstances sufficient to warrant modification of an anticipated and foreseeable at the time of the decree cannot rise to the level of (1999) (quotation omitted). “Changes to a party’s condition that are both

alimony was “without just cause.” she did not allege, and the court did not find, that the husband’s failure to pay the trial court improperly granted the wife’s request for attorneys’ fees because alimony and that he could afford alimony payments. Finally, he asserts that the wife had the burden to prove both that she had a continuing need for failing to consider his loss of income and declining health. He also argues that deplete his remaining assets in order to meet his alimony obligations, and by omitted). The husband argues that the trial court erred by requiring him to of law.” In the Matter of Lurvey & Lurvey, 148 N.H. 469, 470 (2002) (quotation the trial court unless they are lacking in evidential support or tainted by error Arvenitis, 152 N.H. 653, 654 (2005). “We sustain the findings and rulings of absent an unsustainable exercise of discretion. In the Matter of Arvenitis & We will uphold an order on a motion to modify a support obligation changed circumstances. See p. 4 terminate his alimony obligations, and he alone has the burden of proving filed a motion for new alimony payments. Instead, the husband seeks to thus inapplicable to the husband’s modification request as neither party has limiting phrase, “[u]pon motion of either party for alimony payments,” and is seeking a continuation of alimony. However, RSA 458:19 begins with the argues that RSA 458:19 (Supp. 2009) places the burden of proof on the party she had a continuing need for alimony and failed to meet that burden. He The husband next contends that the wife had the burden to prove that

alimony. evidence supports the court’s ruling that the wife has a continuing need for with the alimony payments, she “is living in a delicate financial balance.” This that the wife’s budget is approximately $500 in deficit each month, and, even a modification, see Laflamme, 144 N.H. at 527. Additionally, the court found circumstances of the parties), the burden of proof rests with the party seeking 152 N.H. at 655 (explaining that the trial court must consider all of the must inquire into the changed circumstances of both parties, see Arvenitis,

parties was likely to change. See issued its original indefinite alimony order knowing that the situation of the husband’s 2007 motion to terminate alimony, the court noted that the court income at present and in the future.” Additionally, in its order on the discretion standard). indefinite alimony because of the parties’ “disproportionate abilities to earn 295, 296 (2001) (quotations omitted) (explaining the unsustainable exercise of pay alimony. Furthermore, the parties’ initial divorce decree provided for court’s ruling was untenable or unreasonable. See these factors, but still determined that the husband had sufficient assets to State v. Lambert, 147 N.H. occur in the future”). Based upon these findings, we cannot say that the income and failing health, the record establishes that the court was aware of along with future facts or circumstances known or reasonably anticipated to While the husband claims that the court failed to consider his declining known to the parties and the court at the time the court issued the decree, divorce decree “must be interpreted in light of the facts and circumstances

payor’s own risk and do not affect his obligations to his previous spouse). obligations resulting from associating with another partner are assumed at the (2006); see also Fortuna v. Fortuna, 103 N.H. p. 5 547, 549-50 (1961) (holding that 435 (2006), and In the Matter of Rossino and Rossino, 153 N.H. 367, 370 statute as recognized by In the Matter of Sarvela and Sarvela, 154 N.H. 426, assets,” is not grounds for modification), superseded on other grounds by condition “due to fault or voluntary wastage or dissipation of one’s talents and Noddin v. Noddin, 123 N.H. 73, 76 (1983) (holding that a change in financial and required only minimal household contributions from his fiancée. See allowed his fiancée to run her business out of his home without paying rent, 5

DALIANIS, HICKS and CONBOY, JJ., concurred.

Affirmed.

for appellate review.”). Accordingly, we decline to address this issue. contemporaneous objection during trial court proceedings to preserve an issue Wyner, 1 p. 5 56 N.H. 468, 472 (2007) (“[A] party must make a specific and with the pleading requirements of RSA 458:51. See find, that his failure to pay alimony was “without just cause.” See Singer Asset Finance Co. v. the wife attorneys’ fees because she did not allege, and the trial court did not attorneys’ fees, but it does not do so on the basis that the wife failed to comply Finally, the husband contends that the trial court improperly awarded motion for reconsideration argues that the court erred in granting the wife this issue before the trial court. See id.; Sup. Ct. R. 16(3)(b). The husband’s the appellant, the husband bears the burden of demonstrating that he raised these grounds. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). As with this requirement regardless of whether the opposing party objected on preserve this issue, we may consider the failure of the moving party to comply N.H. 582, 596 (2008). While the wife does not argue that the husband failed to because he did not raise it before the trial court. See Lasonde v. Stanton, 157 (2004). However, the husband failed to preserve this issue for our review

144 N.H. at p. 5 527. Accordingly, the husband’s argument is without merit. party seeking to modify such an order bears the burden of proof, see Laflamme, temporary or permanent, for a definite or indefinite period of time”), and a orders for the payment of alimony to the party in need of alimony, either indefinite alimony orders, see RSA 458:19 (Supp. 2009) (“the court shall make However, the current version of RSA 458:19 authorizes the court to issue required a renewal or extension. Morphy v. Morphy, 114 N.H. 86, 88 (1974). seeking a renewal or an extension had the burden of showing that justice automatically expired after three years, see RSA 458:19 (1983), and the party amendment of RSA 458:19. Under the prior version of RSA 458:19, alimony the incorrect burden of proof, relying upon cases decided prior to the 1985 party has the ability to continue making payments. The husband again cites ability to pay alimony because the party receiving alimony must prove the other The husband also asserts that the court erred in finding that he has the