2011-304, In the Matter of Ronald Brownell and Irene Brownell

The petitioner, Ronald Brownell, appeals the final decree

brief and orally), for the respondent. Law Office of Joshua L. Gordon on the to press. Errors may be reported by E-mail at the following address: 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 contempt, the court ordered the petitioner to pay the alimony arrearage

p. 2 alimony as ordered and by hypothecating marital property. To purge himself of

in indirect civil contempt for violating its temporary decree by not paying divorce = $94,000/2 = $47,000). The trial court also found the petitioner to be $47,000 ($79,000 received before divorce + $15,000 to be distributed after

respondent one-half of his trust distributions, which the court calculated to be

The parties’ final divorce decree ordered the petitioner to pay the

spent on illegal drugs.

that month alone, he received $10,500 in cash from the trust, which he then

2010 financial affidavit, which indicated that he had no cash, even though, in $51,000. The trial court found that the petitioner again lied in his December had only received $31,500 from the trust, when, in fact, he had received

when he answered interrogatories indicating that, as of September 2010, he

he had received $41,000. The trial court found that he lied again a month later

that he had received, by that time, only $25,000 from the trust, when, in fact, The trial court found that he lied at an August 2010 hearing when he testified The trial court specifically found that the petitioner had “no credibility.”

was homeless and living in a shelter. of the final hearing, the home had gone into foreclosure, and the respondent respondent was unable to pay the mortgage on the marital home. By the time

the respondent $1,250 in monthly alimony, he did not do so. As a result, the

Although the trial court’s temporary order required the petitioner to pay

petitioner will receive an additional $15,000 from the trust.

and spent $6,000 on his daughter’s wedding. The trustee estimated that the

remainder, he bought himself a truck and a trailer, gave his children $9,000,

The petitioner used more than $30,000 to buy illegal narcotics. With the

2011.

petitioner spent all $79,000 by the time of the parties’ final hearing in February

trust. Despite the trial court’s November 2010 anti-hypothecation order, the Between then and January 2011, the petitioner received $79,000 from the is the trustee of the trust. The petitioner’s mother died in March 2010.

by his mother. The petitioner is one of five beneficiaries of the trust; his sister

The only marital asset is the petitioner’s inheritance from a trust created

savings or other assets.

ailments. She receives approximately $200 in monthly food stamps and has no

respondent also suffers from post-traumatic stress disorder, as well as other because he has post-traumatic stress disorder from serving in Vietnam. The veterans’ disability benefits. He receives federal veterans’ disability benefits

monthly social security benefits and approximately $2,578 in monthly federal The petitioner is totally and permanently disabled. He receives $962 in attachment, levy, or seizure by or under any legal or equitable process

p. 3 benefits “shall be exempt from the claim of creditors, and shall not be liable to alimony purposes. Section 5301(a)(1) provides that federal veterans’ disability trial court from considering his veterans’ disability benefits as income for The petitioner contends that 38 U.S.C. § 5301(a)(1) (2006) precludes the

permitted by federal law” when “determining amount and sources of income.” veterans’ disability benefits collected by either or both parties to the extent

RSA 458:19, IV(b). RSA 458:19, IV(c) expressly allows trial courts to “consider

federal tax consequences of the order. fault of either party as defined in RSA 458:16-a, II(l); and the of each for future acquisition of capital assets and income; the

estate, liabilities, and needs of each of the parties; the opportunity

awarded under RSA 458:16-a, vocational skills, employability,

status, occupation, amount and sources of income, the property the length of the marriage; the age, health, social or economic In determining the amount of alimony, a trial court must consider:

standard of living that meets reasonable needs.” need “is unable to be self-supporting through appropriate employment at a parties have become accustomed during the marriage”; and (3) the party in

of the party seeking alimony, taking into account the style of living to which the

whom alimony is sought “is able to meet reasonable needs while meeting those parties have become accustomed during the marriage”; (2) the party from party’s reasonable needs, taking into account the style of living to which the

property apportioned in accordance with RSA 458:16-a, to provide for such

exercise of discretion.” In the Matter of Crowe & Crowe decree. We will not overturn the trial court’s decision absent an unsustainable if: (1) the party in need “lacks sufficient income, property, or both, including

property distribution, alimony and child support in fashioning a final divorce purposes. RSA 458:19 (Supp. 2011) authorizes a trial court to award alimony counting his monthly veterans’ disability benefits as income for alimony The petitioner first argues that federal law precludes the trial court from

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

“We afford trial courts broad discretion in determining matters of

to perfect a lien against the petitioner’s trailer and truck to secure the debt. I. Veterans’ Disability Benefits

149 N.H. 31, 36 (2002). We address each of the petitioner’s arguments in turn.

(2002) (citation omitted). “If the court’s findings can reasonably be made on

prosecuting her contempt motions. The trial court authorized the respondent and to pay the respondent’s attorney’s fees associated with filing and that provision to avoid an otherwise valid order of child support.” Id

to protect a veteran’s disability benefits from seizure where the veteran invokes

undermine, the federal purpose in providing these benefits.” Id obligation. Rose

Marriage of Strong In so concluding, courts have relied upon Rose v. Rose

justifications for community property division, . . . [the statute] does not extend moral imperative of family support obligations and the businesslike ruled, therefore, that “regardless of the merit of the distinction between the

attachment, levy, or seizure in the child support context “would further, not veterans’ disability benefits were the veteran’s only means of satisfying his Accordingly, to recognize an exception to the statute’s prohibition against intended to support “the veteran’s family as well.” Rose, p. 4 481 U.S. at 634.

never intended to be exclusively for the subsistence of the beneficiary.” history” of the provision, “the Court held that [veterans’] disability benefits were v. Strong, 8 P.3d 763, 770 (Mont. 2000). “After reviewing the legislative relied was the precursor to section 5301(a). Id. at 630; see Marriage of Strong disagreed. Id. at 636. One of the federal provisions upon which the veteran courts jurisdiction over veterans’ disability benefits. Id. at 625. The Court The petitioner’s contention is contrary to the governing law. See conflicted with and, thus, preempted state statutes that purport to give state

, p. 4 481 U.S. at 621-22. The veteran argued that federal law

disabled veteran in contempt for failing to pay child support when federal not relieve the paying spouse from paying such alimony obligations, even if (1987). The issue in Rose was whether a state court had jurisdiction to hold a

are not exempt from a claim for alimony, support, or maintenance . . . .”). considered as income in awarding spousal support.” Urbaniak v. Urbaniak in the Armed Forces . . . , though exempt as to the claims of ordinary creditors, (1997) (“With few exceptions, the cases hold that payments arising from service Incurred in Connection Therewith, Against Exemptions, 52 A.L.R.5th 221, 372 Enforcement of Claim for Alimony or Support, or for Attorneys’ Fees and Costs 2009); Youngbluth v. Youngbluth, 6 A.3d 677, 687 n.3 (Vt. 2010); Annotation, (emphasis added); see Morales and Morales, 21 p. 4 4 P.3d 81, 85 (Or. Ct. App. most of the veteran’s income consists of military disability benefits.” Id. alternative receiving military disability pay and, once alimony is awarded, federal law will that federal law does not prohibit an award of alimony against a spouse 807 N.W.2d 621, 626 (S.D. 2011) (quotation omitted). “These courts conclude

majority of courts have held that [federal veterans’] disability payments may be Marriage of Wojcik, 838 N.E.2d 282, 299 (Ill. Ct. App. 2005). “An overwhelming

seizure” of his veterans’ disability benefits. 38 U.S.C. § 5301(a)(1). payments,” the trial court’s alimony order effects an “attachment, levy, or

sources is insufficient to cover the amount of the alimony

argues that because “the amount of income available to [him] . . . from whatever, either before or after receipt by the beneficiary.” The petitioner his mother’s trust is a mere expectancy, and, therefore, not a property interest

p. 5 The petitioner argues that his interest in any future distributions from

held in the name of either or both parties.” personal, belonging to either or both parties, whether title to the property is

distribution includes “all tangible and intangible property and assets, real or

subject to equitable distribution. We review de

13, 16 (2007). Under RSA 458:16-a, I, marital property subject to equitable 458:16-a, I (2004); see In the Matter of Chamberlin & Chamberlin, 155 N.H. determination that a particular asset is marital property as defined by RSA

potential post-divorce distributions from his mother’s trust as marital property The petitioner next asserts that the trial court erred by treating any

Mansell determine alimony. Youngbluth is not a ‘creditor’ under the statute but is instead seeking family support.” In, 6 A.3d at 687 n.3. disability benefits for property division purposes with their consideration to an alimony or maintenance proceeding because a spouse seeking maintenance to receive veterans’ disability benefits.” Mansell support.” Id. The petitioner’s argument conflates the consideration of th[e] question has concluded that Mansell affects property division, not spousal dissolution of a marriage.” Id. “[N]early every state court that has addressed receive veterans’ disability benefits as property that can be divided on the ability to treat military retirement pay that a retiree has waived in order to purposes. Id ellipsis and emphasis omitted). “In other words, Mansell limits a state court’s spouse’s present and anticipated disability benefits” as income for alimony retirement pay.” Morales and Morales, 214 P.3d at 85 (quotation, brackets, law preempts the application of state community property laws to military . “The federal question in Mansell was a narrow one: Whether federal The petitioner’s argument is based upon an overly broad interpretation of

section 5301(a)(1) do not shield a veteran’s benefits from being considered in as property divisible upon divorce military retirement pay that has been waived concluded that a different federal statute precludes state courts from “treat[ing] such payments.” Marriage of Strong (1989), requires a different result. We disagree. In Mansell, the court to pay spousal support even where disability benefits will be used to make The petitioner argues that Mansell v Mansell, 490 U.S. 581, 594-95

. at 301.

compelling basis for concluding that a trial court may consider a former re Marriage of Wojcik, 838 N.E.2d at 300. These authorities “provide a

omitted). “These courts have held that the anti-attachment provisions of

free to consider post-dissolution disability income and order a disabled veteran Courts have used “the logic of Rose” to hold that “a state court is clearly p. 6 ‘property’ subject to . . . equitable distribution.” See

assets, real or personal belonging to’ the petitioner, . . . [it] was not . . . money was no longer . . . among the ‘tangible and intangible property and hold that it would be contrary to legislative intent to “permit one spouse to and no longer possessed” the money the trial court divided. Because “this

I. Given the purpose of RSA 458:16-a (2004), which is to achieve equity, we RSA 458:16-a, I. He argues that “the record clearly shows [he] ‘squandered’

We reject the petitioner’s overly technical construction of RSA 458:16-a, constituted property that “belong[ed]” to him, and, thus, could not be divided. equitable distribution).

‘dissipated’ essentially the entire amount” of the distributions, they no longer that because, by the time of the final hearing, he had “in fact spent -- or receive distributions of interest from trust, this right was property subject to him to pay the respondent $47,000 from his trust distributions. He argues

III. Order to Pay Respondent $47,000

In the Matter of Goodlander & Tamposi

subject to equitable distribution; however, because parties retained right to The petitioner next contends that the trial court erred when it ordered trust established by spouses belonged to neither spouse and, thus, was not Chamberlin & Chamberlin, 155 N.H. at 17-18 (corpus of irrevocable charitable

payment is not an issue in this appeal.

enforceable right, but a mere expectancy. from the trust is “absolute, fixed and certain” or only a mere expectancy. In then the beneficiary’s interest is neither a property interest nor an

review of this issue, which was his burden as the appealing party. See

property interest subject to equitable distribution. The amount of the future the petitioner’s interest in future distributions from his mother’s trust is a Absent a sufficient record, we must uphold the trial court’s determination that the Matter of Goodlander & Tamposi, 161 N.H. at 495 (quotation omitted).

of the trust are, and whether the petitioner’s interest in the future distribution include a standard to guide the trustee in making distribution decisions, have no way of determining, based upon the record before us, what the terms Kinderworks Corp., 136 N.H. 548, 553 (1992); see also Sup. Ct. R. 13. We

The petitioner, however, has failed to provide a record sufficient for our

brackets omitted); see RSA 564-B:8-814(b).

exercise of the trustee’s discretion, whether or not the terms of a trust If a distribution to or for the benefit of a beneficiary is subject to the

161 N.H. 490, 495-98 (2011); see also RSA 564-B:8-814(b) (Supp. 2011). subject to equitable distribution. See In the Matter of Goodlander & Tamposi, to comply with its temporary alimony order and for violating its anti-

Here, the court found the petitioner in indirect civil contempt for failing

every element of contempt. Id

Contempts are either direct or indirect. Bonser v. Courtney contempt arose.” In the Matter of Kosek & Kosek that is separate and distinct from the matter in litigation out of which the

authority and vindicate the dignity of the court. Id judge could not take judicial notice. Id IV. Civil Contempt.

presence of the court and without the judge having full personal knowledge of observed by the court. Id. Indirect contempt is committed outside the view of the court. Id punishment. Id. Each element of the contempt must be personally p. 7 796, 808 (1984). Direct contempt is committed in the presence and immediate dissipating spouse to pay a monetary award.” 2 B. Turner, Equitable, 124 N.H.

time without the ability to purge the sentence. Id “Contempt is an offense at common law – a specific and substantive offense. unlike the civil contemnor, may be imprisoned for a determinate amount of

contrast, the purpose of prosecution for criminal contempt is to protect the jail sentence until the contemnor complies with the court order. Id. By proceedings may result in fines payable to the complainant or an indeterminate coercive, and for the benefit of the complainant. Id. Civil contempt

. at p. 7 727. In civil contempt, the punishment is remedial,

The difference between civil and criminal contempt is the character of the

dissipating spouse as part of that spouse’s share of the marital estate,” or, if marital property,” and “then [either] constructively award[ ] [them] to the Finally, the petitioner challenges the trial court’s contempt finding.

him to pay the respondent her share of them. distributions, the only marital asset, the trial court did not err when it ordered we hold that, having found that the petitioner dissipated his trust Distribution of Property § 6:105, at 553-54 (3d ed. 2005). In the instant case,

In such a case, courts treat “the dissipated assets . . . as if they were existing dissipation is no more than a fraud on marital rights.” Sharp, 4 p. 7 73 A.2d at 505. avoid its inclusion in the property to be equitably distributed, “such intentional 1979). Courts have ruled that when property is intentionally dissipated to 714 A.2d 783, 786 (D.C. 1998); see A.I.D. v. P.M.D., 408 A.2d 940, 943 (Del. distributed like any other,” even though it no longer exists. Herron v. Johnson, like [RSA 458:16-a], courts have held that dissipated property must be 1984). “[C]onsistent with the equitable purpose of distribution under statutes award of property.” Sharp v. Sharp, 473 A.2d 499, 505 (Md. Ct. Spec. App. squander marital property and render it impossible to make an equitable review. See

p. 8 A f f i r m e d

ripe for our review.

made this argument in the trial court. Accordingly, it is not preserved for our payments. However, the record does not demonstrate that the petitioner ever civil contempt without first finding that he had the ability to make the ordered

observe that the trial court has not sought to do so. Therefore, this issue is not him before first finding that he has the ability to comply with its order, we the extent that the petitioner contends that the trial court may not incarcerate 8

HICKS, CONBOY and LYNN, JJ., concurred. The petitioner argues that the trial court erred by finding him in indirect

Accordingly, it was not error for the trial court to have failed to consider it. To

and, therefore, should be raised by the [contemnor].” State v. Wallace. additional attorney’s fees and costs associated with that action. could enforce the lien and the petitioner would be responsible for any

reputation of judicial proceedings.” Id and (4) the error must seriously affect the fairness, integrity or public error; (2) the error must be plain; (3) the error must affect substantial rights; represents the majority view). The petitioner never raised this defense. Alimony or Child Support, 53 A.L.R.2d 591, 607 (1957) (noting that this Contempt Proceedings, as to Ability to Comply with Order for Payment of N.H. 267, 271 (1992); see Annotation, Pleading and Burden of Proof, in not brought to the attention of the trial court or the supreme court.” Sup. Ct., 136 court’s order, whether in civil or criminal contempt proceedings, is a defense We find no error. We have held that “the inability to comply with [a] petitioner failed to comply with the court’s order on contempt, the respondent federal plain error analysis for guidance in applying our plain error rule. Id.

162 N.H. at 590 (quotation omitted). To find plain error: “(1) there must be an circumstances in which a miscarriage of justice would otherwise result.” Ortiz, R. 16–A. “However, the rule should be used sparingly, its use limited to those

plain error that affects substantial rights may be considered even though it was not raised before the trial court. State v. Ortiz, 162 N.H. 585, 590 (2011). “A error. See Sup. Ct. R. 16-A. The plain error rule allows us to consider errors travel trailer and truck to secure this debt. The court ordered that if the Alternatively, the petitioner contends that the trial court committed plain The court also allowed the respondent to perfect a lien against the petitioner’s of temporary alimony then in arrears, $8,750, and to pay her attorney’s fees. In the Matter of Goodlander & Tamposi, 161 N.H. at 506-07.

Specifically, the court ordered the petitioner to pay the respondent the amount hypothecation order. After so finding, the trial court imposed sanctions.