2010-785, In the Matter of Marty A. Henry and Thomas A. Henry

The respondent, Thomas A. Henry, appeals the final decree in

respondent. a.m. on the morning of their release. T Michael F. Mimno, of Andover, Massachusetts, by brief and orally, for the 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: the brief and orally), for the petitioner.

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.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as narrative order. See

p. 2 ourselves limited to the findings and rulings the trial court recited in its that they support the trial court’s decision and, further, we do not consider does not reflect the substance of the trial court’s rulings. However, we assume

findings and rulings in the record submitted on appeal; therefore, the record

the respondent, who is the appealing party, has not provided the requests for court specifically ruled upon the petitioner’s requests for findings and rulings, Before addressing the parties’ arguments, we note that although the trial

percent of them. This appeal followed.

petitioner receiving fifty-three percent and the respondent receiving forty-seven court ordered a slightly unequal distribution of the parties’ assets, with the position at General Electric and begins receiving a pension. Additionally, the

$1,500 per month in alimony until the respondent retires from his current

to provide for both his needs and hers, the trial court awarded the petitioner inability to provide for her own reasonable needs and the respondent’s ability complaining spouse was actually seriously endangered the petitioner’s health and reason. Given the petitioner’s

reasonable person, it does require proof that the health or reason of the finding that the respondent’s inappropriate conduct with the parties’ son

whether it has seriously injured health or endangered reason. This is the sole

injured her health or seriously endangered her reason. See affected. Id. Whether the innocent party has granting the petitioner a divorce on the ground of conduct that seriously does not require proof of conduct that would have affected an average or respondent, the trial court granted the petition for a fault-based divorce, test.” Id. (quotation and ellipsis omitted; emphasis added). While the statute in-law, as well as an e-mail message and voicemail message from the Based upon the petitioner’s testimony and that of her son and daughter- 413. “Whether the behavior proved is a sufficient ground of divorce depends on to health or the danger to reason. In the Matter of Guy & Guy, 158 N.H. at The gravamen of a cause of action for divorce on this ground is the injury

adverb “seriously” modifies both “injure health” and “endanger reason”). also In the Matter of Guy & Guy, 158 N.H. 411, 412 (2009) (explaining that the

We first address the respondent’s assertion that the trial court erred by

I. Fault-Based Divorce

(2011).

allegation, the trial court found that his denial was not credible. depression, insomnia and weight loss. Although the respondent denied the seriously endangered her health and reason, causing her to suffer from

him when he was twelve. She contended that the discovery of this information when the parties’ son informed her that the respondent had sexually abused p. 3 3

the petitioner in which he again stated that the incident “was probably a

meant to hurt [our son]. . . .” The respondent also left a voice mail message for

. . . I’m deeply sorry I hurt you because I screwed up p. 3 30 years ago. I never stated: “I don’t want to be divorced. I want to stay with my family of 35 years. The next morning, the respondent sent an e-mail to the petitioner, which

on both parts. And I told him I couldn’t let him in the house. with a child? He said, well, it was probably a moment of weakness law freaked out, got very upset, how could you call it consensual

like it wasn’t consensual. And with that remark, my daughter-in-

comment when I told him I knew what he had done was it’s not . . . . I told him his things were in the hot-tub room. . . . [H]is first divorce this morning, and I want your house keys and credit cards

my son. . . . [T]hen I said this is my attorney’s card. I filed for

I looked at [the respondent] and I said I know what you’ve done to

divorce attorney, she confronted her husband: The petitioner testified that a few days later, after she had met with her

tell you that, and I’m sorry. never consummated, that you weren’t violated, and he said I can’t can you please tell me the act that I think you’re talking about was

were more than buddy showers. I asked him one question, I said

and I said, but they were buddy showers. And he told me they The expression on his face scared me, and I looked at him

[the buddy showers were] to make him feel more comfortable . . . .

school and . . . [was] going to be confronted with the male body . . .

. . . had been explained to [me] were so that when he entered high [M]y son looked at me and brought up these buddy showers that

The petitioner testified that the conversation took place as follows:

him become “familiar with naked men” and to “conserve water.” with the respondent when he was twelve or thirteen years old ostensibly to help

happened in connection with “buddy showers,” which were showers he took

when he was twelve or thirteen years old. The son said that the abuse 2009, he told the petitioner that the respondent had abused him beginning endangered her reason, we uphold it. The parties’ son testified that on May 14,

respondent’s conduct seriously injured the petitioner’s health or seriously Because the record supports the trial court’s finding that the

legally erroneous. Id. trial court’s findings on this issue unless they lack evidentiary support or are been so treated is a question of fact for the trial court. Id. We will sustain the measure its persuasiveness and assess the credibility of the witnesses.” In the

p. 4 conflicted, the trial judge was in the best position to evaluate the evidence, endangered her reason. “While the testimony presented by the parties conduct caused serious injury to the petitioner’s health or seriously The evidence supports the trial court’s finding that the respondent’s

well as “[p]eriods of lightheadedness, dizziness.” testified that she has suffered from “weight loss, dropped-foot syndrome” as

crying in the dark in the living room in the love seat under a blanket.” He also

has had “far more bad days than good days.” He testified, “Days she’ll sit abuse, the petitioner “has been extremely upset, withdrawn, daily almost” and The parties’ son testified that as a result of his disclosure about the

lightheadedness[,] . . . and . . . dizziness,” which she attributes to “nerves.”

that.” Additionally, she testified that she suffers from “the shakes, . . . wanted [her] to, even though [she] ha[s] had [gastric bypass] surgery to do that she has “lost a little bit of weight a little quicker than they probably

seeing a counselor and taking medication for her symptoms. She also testified

thirty years ago and was not directed towards the petitioner herself. “Any

“gone into depression.” She testified that as a result of the disclosure, she is respondent abused her son, she has “had a lot of anxiety attacks” and has [her] son.” The petitioner testified that as a result of learning that the

petitioner’s health or seriously endangered her reason because it occurred

statute, “[i]t does not matter whether the conduct was directed towards the “feel[s] like someone that [she] loved and trusted totally destroyed [her] and

insufficient as a matter of law to constitute treatment that seriously injured the We reject the respondent’s assertion that his alleged conduct was

(quotations omitted; emphasis added). For a spouse’s behavior to satisfy the “freaked out” and that this “lasted for quite a while.” She testified that she meaning of the statute.” In the Matter of Guy & Guy, 158 N.H. at 413 The petitioner testified that when her son told her about the abuse, she behavior” that “affects the other physically or mentally is treatment within the

seriously injured her health or seriously endangered her reason. grant the petitioner a divorce on the ground that the respondent’s conduct supports the trial court’s findings, and we find no legal error in its decision to Matter of Mannion & Mannion, 155 N.H. 52, 57 (2007). Here, the record

“buddy showers” with the parties’ son when the son was a child.

he “wouldn’t answer that question.” At trial, the respondent admitted taking was doing.” When the petitioner asked the respondent why the abuse stopped, occasions.” The respondent said, “I was just a kid. . . . I didn’t know what [I]

testified that she asked the respondent about his conduct “on numerous moment of weakness on both parties’ part.” Additionally, the petitioner p. 5 5

suffice. See

We have previously ruled that symptoms similar to the petitioner’s

divorce under RSA 4 p. 5 58:7, V. of law, the effect on her physical and mental health is insufficient to sustain a seek counseling and medication for her symptoms. also evidence that the respondent’s alleged conduct caused the petitioner to

Given the severity of the petitioner’s symptoms, we cannot say that, as a matter

husband had sexually abused her son when her son was a child. There was

considerable weight and became “a complete wreck” (quotation omitted)). nervous” and lost weight); Szulc v. Szulc, 96 N.H. 190, 191 (19 p. 5 50) (wife lost counseling); Morgan v. Morgan experienced dizziness and lightheadedness as a result of learning that her, 101 N.H. 470, 471 (1958) (wife became “highly counseling); Routhier v. Routhier, 128 N.H. 439, 440 (1986) (wife sought N.H. 551, 553-54 (2004) (wife suffered emotional distress and sought counselor (quotation omitted)); In the Matter of Gronvaldt & Gronvaldt, 150 suffered “significant emotional distress” and sought assistance of pastoral a former girlfriend. Id In the Matter of Peirano & Larsen, 155 N.H. 738, 753 (2007) (wife

petitioner in this case fell into a depression, spent days crying, lost weight, and was intended to encompass. Id. By contrast, there was evidence that the was there evidence that she suffered the type of mental anguish the statute the husband’s conduct had harmed her physical well-being. Id. at 414. Nor See. at 413 (quotation omitted). There was no evidence that husband, the respondent, was exchanging e-mails with other women, including & Guy was only “angry, upset, and distraught” when she discovered that her factually distinguishable from this case. The petitioner in In the Matter of Guy the Matter of Guy & Guy, 1 p. 5 58 N.H. at 413-14. In the Matter of Guy & Guy is for consideration under the statute as a matter of law. He likens this case to In The respondent also argues that the petitioner’s symptoms do not qualify

uncontroverted evidence. Id. at 466. testimony of any witness or party, and was not required to believe even finder, the trial court was entitled to accept or reject, in whole or in part, the In the Matter of Aube & Aube, 1 p. 5 58 N.H. 459, 465 (2009). As the fact disputed this, it was for the trial court to resolve such conflicts in evidence. petitioner and her son testified that they were so caused. While the respondent the petitioner’s symptoms were not caused by his alleged conduct. Both the We also reject his assertion that the trial court was compelled to find that

divorce. occurred many years ago, the petitioner learned of it only days before filing for malevolent intent.” Id. While the respondent’s alleged conduct may have innocent spouse or whether the guilty spouse engaged in the conduct with p. 6 Trial courts have broad discretion in awarding alimony. In the Matter of

the family unit.” RSA 458:19, IV(d). respective estates and the noneconomic contribution of each of the parties to

the parties in the acquisition, preservation, or appreciation in value of their

RSA 458:19, IV(b). The court “may also consider the contribution of each of

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

party and [the] opportunity for future acquisition of assets and income[, and] vocational skills, . . . current employability, the liability and needs of each and the property awarded pursuant to RSA 458:16” and “each party’s

consider:

employment” as well as “the amount of resources of current and future income

various factors enumerated in RSA 458:19, IV. Specifically, the court must In determining the amount of alimony, a trial court must consider

Respondent’s occupation and the Petitioner’s lack of full time gainful marriage, their age, their health, their social and economic status, the trial court specifically stated that it considered “the length of the parties’

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

statutory factors listed in RSA 458:19, IV. In its narrative order, however, the

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

The respondent first argues that the trial court failed to consider the

our unsustainable exercise of discretion standard. Id. Peirano & Larsen, 155 N.H. at 746. We review the trial court’s decision under

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

apportioned in accordance with RSA 458:16-a, to provide for such party’s

in need “lacks sufficient income, property, or both, including property 458:19 (Supp. 2010) authorizes a trial court to award alimony if: (1) the party We next address the respondent’s challenge to the alimony award. RSA

II. Alimony p. 7 7

to be given evidence. In the Matter of Aube & Aube testimony, measuring the credibility of witnesses, and determining the weight

decline to consider it. See has not demonstrated that he preserved this argument for our review, we

the trial court’s judgment on such issues as resolving conflicts in the

maintain [the petitioner’s] health insurance coverage.” Because the respondent

the trial court’s decision absent an unsustainable exercise of discretion. Id property distribution in fashioning a final divorce decree, we will not overturn 291-92 (2010). findings, it failed to weigh the statutory factors properly. However, we defer to entirety to one party. In the Matter of Maynard & Maynard In the Matter of Canaway & Canaway, 161 N.H. 286, relevant statutory factors and even if there is evidence to support its factual marital property is equitable.” In the Matter of Watterworth & Watterworth uphold it. He contends in effect that even if the trial court considered the pay “one half of any COBRA costs that the parties may incur in order to The respondent first challenges the trial court’s ruling requiring him to the marriage and the value of property contributed by each party.” In the needs, the needs of the custodial parent, the contribution of each party during will stand. Id. as the length of the marriage, the ability of the parties to provide for their own the court’s findings can reasonably be made on the evidence presented, they

(200 p. 7 7). As we afford trial courts broad discretion in determining matters of

trial court is not precluded, however, from awarding a particular asset in its “RSA 458:16-a, II creates a presumption that equal distribution of relevant” in equitably distributing the parties’ assets. RSA 458:16-a, II(o). A those of the petitioner as well. As there is evidence to support this finding, we (2004). Additionally, the court may consider “[a]ny other factor [it] deems Matter of Crowe & Crowe, 148 N.H. 218, 221 (2002); see RSA 458:16-a, II

“The statute enumerates various factors for the court to consider, such

circumstances, the court must make the distribution as equal as possible. Id. 149 N.H. 442, 453 (2003) (quotation and ellipsis omitted). Absent special

III. Property Distribution court’s finding that he is able to meet his own reasonable needs while meeting The respondent next asserts that the evidence does not support the trial the petitioner’s alimony request. conclude that on the record before it, the trial court was not compelled to deny

relevant to the statutory factors enumerated in RSA 458:19, IV. the fault entered on behalf of the Respondent.” The court also found facts does not require reversal. In the Matter of Stapleton & Stapleton

p. 8 we conclude that the trial court’s distribution of property between the parties record submitted on appeal, and considering the trial court’s finding of fault, reimburse him for his attorney’s fees and costs. Based upon our review of the

See

expenses and that he is entitled to an award from the marital estate to equitable distribution “shall include all not require the trial court to consider this or to assign it any particular weight. determining whether an equal division of marital property is equitable, it does consider the “value of any property acquired by gift, devise, or descent” in

DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred. (emphasis added); see Affirmed

he argues that he should not be responsible for certain uninsured medical greater percentage than the petitioner of certain of the parties’ debts. Further, during the marriage, we disagree. By statute, marital property subject to payments on the equity line encumbering the marital home and to pay a

parties.” RSA 458:16-a, I. While RSA 458:16-a, II(n) allows a trial court to

property is held in the name of either or both parties.” RSA 458:16-a, I (2004).

In the Matter of Costa & Costa, 156 N.H. 323, 327 (2007).

matter of law by dividing assets that the respondent inherited from his parents that it was inequitable for the court to have required him to continue making

distribution does not exclude inherited property “belonging to either or both parties.”). This statutory definition of marital property subject to equitable decreed, the court may order an equitable division of property between the

assets, real or personal, belonging to either or both parties, whether title to the

To the extent that the respondent asserts that the trial court erred as a furnishings, and the parties’ tax refund received in 2009. He contends as well plan accounts and other tax-deferred assets, the parties’ household 694, 698 (2010). entitled to a greater share of the parties’ real estate holdings, his retirement, 159 N.H.

parties’ marital property was inequitable. Specifically, he argues that he is The respondent next asserts that the trial court’s distribution of the