2011-075, In the Matter of Eric J. Dube and Jeannie Dube

The respondent, Jeannie Dube, appeals the final decree in the

and orally), for the respondent. Puckhaber Law Offices, PLLC on the brief 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 p. 2 I. Fault-Based Divorce

denied Jeannie’s request for alimony, finding it “unwarranted.” This appeal followed. progressively increased contact between Jeannie and the boy. Finally, the court

the breakdown of the marriage.”’ See

residential responsibility for their minor son, and detailed a plan to facilitate

punishable by prison for more than one year constitute[d] fault grounds that caused

parties’ stipulated parenting plan, which awarded Eric decision-making and marital property in Eric’s favor was warranted. Further, the court adopted the as Jeannie’s incarceration, the court concluded that an unequal division of the imprisonment. She asserts that Eric is not an “innocent party” because he

hearing, Eric asked the court to consider that Jeannie’s “conviction of a crime the New Hampshire State Prison for Women. As a result, during the final divorce count of criminal mischief and was subsequently sentenced to two to four years at

year.” In addition, after consideration of the parties’ debt and marital assets, as well a fault-based divorce on the grounds of her conviction and subsequent We first address Jeannie’s contention that the trial court erred in granting Eric caused the breakdown of the parties’ marriage. See On December 9, 2008, Eric filed for divorce, claiming irreconcilable differences

house with the ax, as he tried to prevent her from lighting the gasoline. the final hearing, Jeannie was convicted of one count of attempted arson and one marital residence and property with an ax[],”and then chased Eric’s father around the and attempted to ignite it with a lighter.” In addition, she “destroyed a portion of the

the grounds of [Jeannie’s] conviction of a crime and imprisonment for more than one Following the final hearing, the trial court granted Eric a decree of divorce “on during a telephone conversation, Three days later, on December 3, 2008, while the pair discussed their marriage RSA 458:7, IV (2004). count of attempted arson, and one count of criminal mischief. result of her actions, Jeannie was charged with two counts of attempted murder, one

endanger reason.” RSA 458:7, V (2004). After he amended his petition, but prior to divorce, claiming Jeannie “ha[d] so treated [him] as seriously to injure health or their conversation, Jeannie “doused the marital residence and garage with gasoline Thereafter, he amended his divorce petition and added an alternate ground for

had engaged in a single instance of adultery. Consequently, the next day, Eric obtained a restraining order against Jeannie. As a refused to be intimate with Eric. On November 30, 2008, Jeannie learned that Eric

She also told him that she was going to burn down the marital residence. Following parties’ minor child, Eric’s child from a previous relationship, and Eric’s parents.

difficulties. They demonstrated little to no affection toward one another, and Jeannie In the later years of their marriage, the parties began to experience marital be repeated.” Tibbetts v. Tibbetts

p. 3 fault grounds, we assume it made such a finding. See specific finding that Eric was an “innocent party,” because it granted a divorce on “is the forgiveness of an antecedent matrimonial offense on condition that it shall not RSA 458:7, II, IV-V (emphasis added). Although the trial court did not make a restoring his status as an “innocent party.” The affirmative defense of condonation “work through” the affair constituted Jeannie’s condonation of his adultery, thus primary cause of the marital breakdown. Eric argues that the parties’ agreement to

injure health or endanger reason. still an “innocent party” because Jeannie’s conduct, and not his adultery, was the “the innocent party.” Eric does not dispute his infidelity; yet, he contends that he is Here, the record does not support the trial court’s implicit finding that Eric was 3

actual imprisonment under such conviction.

In Rockwood v. Rockwood

crime punishable with imprisonment for more than one year and evidence does not support them or they are legally erroneous. In the Matter of facie, to a divorce.” (quotation omitted)). adjudged an innocent party unless it be such as to entitle the other party, prima (Mo. Ct. App. 1968) (“[T]he conduct of one party will not prevent him from being. . . .

“the innocent party” if he “is guilty of an offense against the other spouse, which guilt.” Id. at 131 (quotations omitted). We then explained that a spouse cannot be therefore entitled to a divorce. We determined that “innocent” meant “free from the the husband, who was found guilty of adultery, was “the innocent party” and

Hampers & Hampers, 154 N.H. 275, 279 (2006). IV. Conviction of either party, in any state or federal district, of a 131 N.H. 654, 663 (1989). We will affirm the trial court’s factual findings unless the

A divorce from the bonds of matrimony shall be decreed in favor of

RSA 458:7 (2004) provides in pertinent part:

II. Adultery of either party.

innocent party for any of the following causes: . . .

divorce. committed adultery, and, therefore, he is precluded from obtaining a fault-based reasonable needs . . . .

p. 4 a dissolution based upon irreconcilable differences. See affirm the trial court’s decision dissolving the parties’ marriage. The record supports appropriate employment at a standard of living that meets (c) The party in need is unable to be self-supporting through divorce petition was filed or amended prior to the final hearing. Nevertheless, we

become accustomed during the marriage; and

could not have been her conviction since she had not yet been convicted when the

taking into account the style of living to which the parties have reasonable needs while meeting those of the party seeking alimony, (b) The party from whom alimony is sought is able to meet

not address Jeannie’s alternative argument that the cause of the marital breakdown

during the marriage; and the style of living to which the parties have become accustomed to provide for such party’s reasonable needs, taking into account

Because we conclude that Eric is not entitled to a fault-based divorce, we need

inapplicable here, and therefore, Eric cannot claim the status of an “innocent party.” 4 we were -- what we were trying to find out.” Thus, the doctrine of condonation is

including property apportioned in accordance with RSA 458:16-a, (a) The party in need lacks sufficient income, property, or both,

did I -- what do I need to do to -- if -- what did I miss, what did I need to do was what Jeannie stated, “I don’t think forgiveness was the question at the time. It was what his family and destroy the marital home. Moreover, during the divorce hearing,

Pursuant to RSA 458:19 (Supp. 2011), a trial court may award alimony if: Next, Jeannie contends that the trial court erred in denying her alimony.

divorce; otherwise, we affirm the trial court’s decision to grant a divorce.

yelling.” On the third day after his disclosure, she threatened and attempted to kill

we reverse the trial court’s decision to the extent that it granted Eric a fault-based

voicemail messages from Jeannie who was “irate” and at times “just screaming and forgave Eric’s adultery. Two days after his disclosure, Eric received numerous the days immediately following his disclosure does not support a finding that Jeannie

evidence of a [further] injury.” Quincy v. Quincy

his infidelity. While she may have agreed to work on their marriage, her conduct in The record, however, does not support Eric’s assertion that Jeannie condoned

infidelity of the other, it cannot afterwards be set up as a ground of divorce, without Under the doctrine, “[i]f either party to a marriage thinks proper to forgive the alimony. “The primary purpose of alimony is rehabilitative,” In the Matter of Fowler

p. 5 The record also supports the trial court’s finding that Jeannie did not need

“unwarranted” and “inappropriate.”

to pay the marital debt while Jeannie is incarcerated, make an alimony award

pay down the encumbrances on the marital residence, to pay his individual debt, and supports the trial court’s finding that Eric’s obligations to support the children, to Despite his relatively high salary and his award of the marital residence, the record

uphold them. In the Matter of Henry his obligations as primary support for the parties’ son and his two other children. As there is sufficient evidence to support the trial court’s factual findings, we

well as Eric’s ability to pay it. Nevertheless, Jeannie contends that the evidence supports her need for alimony, as award.

addition, the court considered the $56,511.61 of marital debt allocated to Eric and

independent source of income.” In the Matter of Fowler

profit-sharing plan.” Calderwood v. Calderwood conduct . . . and will continue to pay during her period of incarceration.” the trial court sustainably exercised its discretion in declining to make an alimony to function in the job market and to provide for their own financial needs.” Id, 163 N.H. at 183. We conclude, therefore, that

home mortgage loan of $272,898.47 and home equity loan of $27,809.74. In needs.” RSA 458:19, I(a). estimated $337,400 value of the marital property awarded to him, including the does not “lack[] sufficient income, property, or both . . . to provide for [her] reasonable yearly salary of $93,000 and his monthly veteran’s benefits of $243, as well as the omitted). Moreover, during her incarceration, her basic needs will be met; thus, she

would not have fulfilled its purpose of “encourag[ing] the recipient to establish an (quotations and ellipsis omitted). Given Jeannie’s incarceration, an alimony award

Consequently, “[t]he purpose of an order for support is not to provide a life-time to pay a majority of the marital debt since the [r]espondent’s criminal. due to her incarceration.” In addition, the court noted that “the [p]etitioner has had “‘Rehabilitative’ alimony is based on the theory that modern spouses are equally able ability to pay and that the [r]espondent [did] not have a definitive need for alimony to establish an independent source of income.” Id. (quotations omitted). and Fowler, 145 N.H. 516, 520 (2000), and it “is designed to encourage the recipient

In determining whether to award alimony, the trial court considered Eric’s

denied Jeannie’s alimony request, finding “that the [p]etitioner [did] not have the

After consideration of the factors enumerated in RSA 458:19, the trial court

decision under our unsustainable exercise of discretion standard. Id. Matter of Peirano & Larsen, 155 N.H. 738, 746 (2007). We review the trial court’s RSA 458:19, (I)(a)-(c). Trial courts have broad discretion in awarding alimony. In the p. 6 $8,727 during the pendency of the divorce.” See

findings and rulings supporting its decision.” In the Matter of Peirano 6 distribution of property is warranted, it should state its reasons and make specific Jeannie’s period of incarceration.” See

also noted that Eric “paid down the mortgage by $4,750 and the personal loan by

as the parties’ minor son.” See remained in the marital residence with his children from a previous marriage, as well

property which it orders.” Further, if the “court concludes that an unequal specifically directed Eric to “utilize [the] funds to pay the parties’ marital debt during seventy percent of the thrift savings plan was warranted; further, the court continuing obligation to pay a majority of the joint marital debt, awarding him court to consider “[a]ny other factor that the court deems relevant”). Finally, the

the custodial parent . . . to occupy or own the marital residence”). The trial court the record that reflect the factors listed in RSA 458:16-a. See RSA 458:16-a, II(e) (listing as a factor “[t]he need of

“liabilities of each party”). Moreover, the court noted that “the [p]etitioner has

RSA 458:16-a, IV requires the trial court to “specify written reasons for the division of and the value of property contributed by each party.” In the Matter of Crowe & specific findings and rulings to support its unequal division of the marital property. enumerated in RSA 458:16-a. For example, the court found that since Eric has a Jeannie first asserts that the trial court failed to state its reasons and make Here, to support its decision, the trial court referenced several factors stand. Id & Costa, 156 N.H. 323, 327 (2007).

749 (quotation omitted). A court can satisfy these requirements by citing facts from to one party. In the Matter of Salesky & Salesky, 155 N.H. at

the needs of the custodial parent, the contribution of each party during the marriage

.

If the court’s findings can reasonably be made on the evidence presented, they will overturn the trial court’s decision absent an unsustainable exercise of discretion. Id. a presumption that equal distribution of marital property is equitable. In the Matter afford trial courts broad discretion in determining property distribution, we will not constitutes an unsustainable exercise of discretion. RSA 458:16-a, II (2004) creates, 157 N.H. 698, 708 (2008). As we trial court is not precluded, however, from awarding a particular asset in its entirety Jeannie next asserts that the trial court’s distribution of the marital property consider “[a]ny other factor that the court deems relevant.” RSA 458:16-a, II(o). A Crowe, 148 N.H. 218, 221 (2002); see RSA 458:16-a, II. The trial court may also

“the length of the marriage, the ability of the parties to provide for their own needs, determination, the court is required by statute to consider various factors, including distribution as equal as possible. Id.; see RSA 458:16-a, II. In making its of Henry, 163 N.H. at 183. Absent special circumstances, the court must make the

III. Property Distribution discretion to the trial court, McAlpin p. 7 properly. In matters of property settlement and divorce, however, we allocate broad evidence to support its findings, the court nevertheless failed to weigh the factors

trial court considered some of the relevant statutory factors, and even if there is

factored into its decision. Regardless, Jeannie essentially contends that even if the above, the court’s written findings illustrate several “special circumstances” that property because the decision is supported by other considerations. As described

uphold it.

effectively terminated her parental rights. fault-based divorce, we nevertheless sustain its unequal distribution of the marital

supports the trial court’s factual finding regarding the equity in the marital home, we that Eric’s debt responsibility significantly outweighed Jeannie’s. Because the record contribution, it focused on the relative debts of each party, and ultimately concluded

Finally, Jeannie challenges the stipulated parenting plan, arguing that it While we agree with Jeannie’s assertion that the trial court erred in granting a

of the marital home’s in-law apartment. While the court noted Eric’s parents’ “suffer[ed] from mental and emotional duress.” We decline to address her challenge to agree to the plan because she was “distraught” during the divorce proceedings and

which was granted in error by the trial court.” special circumstances which fit the facts associated with this case, except fault,

unequal distribution of the marital property. See

the court improperly considered Eric’s parents’ contribution toward the construction marital assets in Eric’s favor. See equity in the marital home would be de minimus at best.” In addition, she contends sufficient written findings to support its unequal apportionment of the parties’ Jeannie further argues that the trial court erred “in its determination that the

court’s unequal division.

Next, Jeannie contends that there were no special circumstances justifying an

record and the court’s narrative order, we conclude that the trial court made

residence including but not limited to . . . repairs and maintenance of the home.” See child, she maintains that this “special circumstance was remedied when the trial 740 (1987). While she acknowledges Eric’s responsibility to provide a home for their

which contributed to the . . . diminution in value” of the marital property). Given the RSA 458:16-a, II(f) (permitting the court to consider “actions . . . during the marriage

would be “solely responsible for payment of all costs associated with the marital court noted that Jeannie “destroyed a portion of the marital residence” and that Eric p. 8 8

DALIANIS, C.J., and LYNN, J., concurred.

Affirmed in part; reversed in part

Builders v. Brooks, 154 N.H. 252, 25 p. 8 8 (2006). trial court, and, therefore, has not preserved it for our review. See LaMontagne to the parenting plan, however, because she did not raise the argument before the