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2010-842, In the Matter of Karen Schaulin-Viviers and Norris Viviers
stipulation provided that the respondent would pay the alimony “at the rate of the petitioner from the sale of a certain parcel of Florida real estate. The petitioner “in an amount equal to $400,000.00 less the net proceeds” paid to
parties’ permanent stipulation, required the respondent to pay alimony to the
Tober Law Offices, P.A.
Opinion Issued: February 10, 2012 Argued: October 19, 2011
IN THE MATTER OF KAREN SCHAULIN-VIVIERS AND NORRIS VIVIERS April 2003 and divorced in October 2007. The divorce decree, based on the
The following facts are drawn from the record. The parties married in No. 2010-842 remand. Manchester Family Division
because the parties agreed to a lump-sum payment of alimony. We vacate and
recommended by a Marital Master (Geiger
alimony to the petitioner, Karen Schaulin-Viviers, could not be modified Manchester Family Division (Emery, J.), ruling that his obligation to pay ___________________________ , M.) and approved by the CONBOY, J. The respondent, Norris Viviers, appeals an order
orally), for the respondent. a.m. on the morning of their release. T Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and 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: J. Crawford on the brief, and Ms. Crawford orally), for the petitioner.
, of Portsmouth (Stephen L. Tober and Katharine
THE SUPREME COURT OF NEW HAMPSHIRE
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
page is: http://www.courts.state.nh.us/supreme.
he direct address of the court's home
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as time as the real estate market and economy begin to improve.” See
circumstances to warrant some relief, at least on a temporary basis until such
respondent “clearly ha[d] demonstrated a substantial change in his financial warranted restructuring his alimony obligation. The trial court found that the the economy and the real estate market,” which “was of historic proportions,”
respondent’s motion in part, finding that “the magnitude of the downturn in
In a 2009 order, which neither party appealed, the trial court granted the
obligation because of this “substantial unforeseen change in circumstances.”
negative 2.3 million dollars.” Therefore, he sought to terminate his alimony
income and . . . net worth” had “evaporate[ed] . . . to approximately . . . [had] suffered a dramatic down turn” since the parties divorced, his “stream of $540,000.” He alleged that because “[t]he development and real estate market
worth was over 4.5 million dollars and his taxable earnings in 2007 [were] over
2
he was a real estate developer and when the parties divorced, his “personal net
court’s 2009 order, his financial circumstances had further deteriorated such
$118,000 from the proceeds of the sale of the Florida parcel). He alleged that observed that his total alimony obligation was $282,000 ($400,000 less obligation based upon changed financial circumstances. In his motion, he
obligation imposed by the court’s 2009 order. He alleged that since the trial
In February 2009, the respondent moved to terminate his alimony
In April 2010, the respondent moved to suspend the temporary alimony
in alimony, which as of August 2009 was $212,000.
improper or unfair” (quotation and brackets omitted)); see
on November 1, 2008. and the remaining $27,500 to be paid in $5,000 increments monthly beginning
the court did not modify the total amount the respondent owed the petitioner
has arisen since the initial award, making the current alimony amount either
$55,000 payment in installments with $27,500 to be paid by October 3, 2008,
of the respondent’s monthly alimony obligation to $2,500 per month, although modify any order made by it”). Accordingly, the trial court reduced the amount (2004) (except under circumstances not at issue here, court “may revise and
also RSA 458:14
alimony modification “must show that a substantial change in circumstances Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010) (party requesting
In the respondent’s alimony obligation by allowing him to pay the petitioner the first
In October 2008, the parties entered into an agreement that modified the
on his real estate located in Moultonborough.
required the respondent’s alimony obligation to be secured by a third mortgage pertinent provisions of the federal Internal Revenue Code. The stipulation also income to the Petitioner . . . and deductible by Respondent” pursuant to until paid in full.” It further provided that the alimony was “includable as $55,000.00 per year on October 1st of each year beginning October 1, 2008 DeMauro v. DeMauro
seeks relief, we may exercise our discretion to dismiss. order that has direct bearing upon an issue for which that party a party has consciously and deliberately disregarded a trial court
on appeal, and the issue of contempt is not being appealed. When
trial court that relates directly to the issues raised by the appellant
3 dismissed if the appellant has failed to comply with an order of the
[I]n limited circumstances, an appeal in a civil case may be
receive anything from him and that he would continue, with the aid of his vast
trial court’s contempt finding on appeal. We have held: the payment of alimony and division of marital property, she would never appeal because he was found to be in contempt and does not challenge the We first address the petitioner’s request that we dismiss the respondent’s
an appeal, until the appeal had concluded. This appeal followed.
In DeMauro
defendant had indicated to the plaintiff that unless she acceded to his offers for
petitioner until the period for appealing its order had elapsed or, in the event of his financial status.” Id court ruled that it would not decide the amount of fees to be paid to the petitioner her reasonable attorney’s fees pursuant to RSA 458:51 (2004). The
alimony, payable over a period of time. See 481. Indeed, the trial court issued warrants for his arrest, finding that “the do so, he failed to provide any temporary support to the plaintiff. Id. at 480, did not attend the final divorce hearings.” Id. In addition, although ordered to
. at 483. “Further, the defendant, while in contempt,
orders, including one to execute consent forms for the purpose of ascertaining
, “the defendant refused to comply with various trial court per month. However, it found the respondent in contempt and awarded the
discretion to dismiss the respondent’s appeal. appeal to be dissimilar to those in DeMauro, we decline to exercise our only once -- in DeMauro. Because we find the circumstances of the instant
, 147 N.H. 478, 482 (2002). We have applied this rule
obligation was not modifiable because the parties had agreed to lump-sum Following a hearing, the trial court ruled that the respondent’s alimony
financial information, the trial court reduced his alimony obligation to $1,000 be satisfied were modifiable. Based upon its review of the respondent’s The trial court ruled, however, that the terms under which this obligation could
April and May 2009. July, August and September 2009, and for paying only $1,000 per month for for failing to pay any alimony in April, May and June 2010 as well as June,
“may make orders for alimony in a lump sum, periodic payments, or both”).
RSA 458:19, IV(a) (2004) (court
petitioner moved for contempt, arguing that the respondent was in contempt that he now had “no funds with which to pay alimony.” In response, the periodic alimony. See
distinguish between lump-sum alimony, also called “alimony in gross,” and reached this conclusion by relying upon cases from other jurisdictions, which because the parties agreed to a lump-sum, payable over time. The trial court
4
matter of law when it ruled that his alimony obligation could not be modified
decree awarding a lump sum as alimony, notwithstanding the obligee’s promise
We next address the respondent’s assertion that the trial court erred as a
held that the court may modify an agreement between the parties or a divorce fixed periodic installments.” West
“look to the substance, rather than the label.” West
request to dismiss the respondent’s appeal on this basis. purged himself of the contempt. Accordingly, we decline the petitioner’s alimony, such alimony is considered a form of property distribution. See
characteristics of lump sum alimony.” Id
recognizes the concept of non-modifiable alimony in gross. However, we have irrevocable amount,” that may be payable either “in a single lump sum or in We have not previously opined as to whether New Hampshire law
, 891 So. 2d at 212.
determine whether alimony is periodic or alimony in gross (lump sum), courts Hager death or the obligee’s remarriage. See, 299 So. 2d at 749; Rivera v. Rivera, 661 S.E.2d 541, 542 (Ga. 2008). To
whether, since the trial court issued its contempt finding, the respondent has jurisdictions that recognize non-modifiable alimony in gross or lump sum
. It is not modifiable. Id. In some
time for which payments are to run and a fixed sum of money are two
, 891 So. 2d at 212. “A specific period of
By contrast, lump-sum alimony or alimony in gross, “is a fixed and
conditions or needs. See Hager, 299 So. 2d at 750-51. (Miss. 2004). It is modifiable based upon the changes in the parties’ financial
West v. West, 891 So. 2d 203, 212
basis of need that has no fixed termination date, but, instead, terminates upon Generally, periodic alimony refers to monthly alimony awarded on the the record on appeal contains no evidence of this. Nor does the record indicate respondent had paid no alimony since the trial court found him in contempt, Hager v. Hager, 299 So. 2d 743, 750 (Ala. 1974). While at oral argument in this case, the petitioner represented that the
dismiss his appeal. Id
dispositive of the issue about which he complain[ed]” on appeal. Id. it [was] his contempt for failing to execute authorizations that is potentially defendant challenged “precisely the outcome that he could have prevented, for
. at 483. We observed, as well, that in his appeal, the
marital estate to the detriment of the plaintiff,” and exercised our discretion to overall “pattern of conduct intended to thwart an equitable distribution of the and brackets omitted). We ruled that the defendant’s actions reflected an court found, “which [had] proven to be all too accurate.” Id. at 480 (quotations financial resources, to avoid service of process and arrest,” a threat, the trial Vacated and remanded
consistent with this opinion.
5 under RSA 490:3, concurred.
sum.” West “periodic alimony.” See
alimony obligation was non-modifiable and remand for further proceedings Accordingly, we vacate the trial court’s determination that the respondent’s gross, the trial court erred by characterizing the alimony in this case as such.
DALIANIS, C.J.
, concurred; DUGGAN, J., retired, specially assigned
award is given, we must construe the alimony as being periodic and not lump treating the alimony as “alimony in gross,” but is consistent with treating it as or periodic alimony. “Unless it is clear from the record what sort of alimony create an ambiguity as to whether the alimony awarded was alimony in gross
Hampshire law were to recognize the concept of non-modifiable alimony in
.
petitioner and were tax deductible by the respondent. This is inconsistent with stipulation, the alimony payments were includable as taxable income to the At the very least, these aspects of the parties’ agreement and conduct in this case would not qualify. Here, according to the parties’ permanent
(quotation omitted)). Under these circumstances, even assuming that New “periodic alimony is taxable to the payee.” Friend unequivocally expressed or necessarily inferred from the language used.” (Ala. Civ. App. 1988) (“The intent to award alimony in gross should be
, 891 So. 2d at 212; cf. Trammell v. Trammell, 523 So. 2d 437, 439
those jurisdictions that recognize non-modifiable alimony in gross, the alimony neither party appealed. See Hood, 2011 WL 3211118, at *5. agreement in October 2008, and again pursuant to a 2009 court order, which Additionally, the respondent’s obligation has been modified twice, once by
, 783 N.W.2d at 122.
July 29, 2011). “[A]limony in gross is not a taxable event to the payee,” while see also Hood v. Hood, No. 2100358, 2011 WL 3211118, at *5 (Ala. Civ. App.
Friend v. Friend, 783 N.W.2d 122, 122 (Mich. 2010);
We need not resolve the issue, however, because even under the law of
by statute as stated in Lund v. Lund, 96 N.H. 283 (1950). LeBeau v. LeBeau, 80 N.H. 139, 140-41 (1921), superseded on other grounds not to seek additional alimony. See Norberg v. Norberg, 135 N.H. 620 (1992);