2012-098, In the Matter of Kenneth Heinrich and Dorothy Heinrich

received a lump sum settlement of a workers’ compensation claim. The The petitioner filed for divorce on August 19, 2009, one day after he

with special needs to whom the respondent primarily attends. mechanic, and the respondent as a nurse. The parties have an adult daughter 1969. Both parties worked during their marriage – the petitioner as a

Germaine & Blaszka, P.A.

The trial court found the following facts. The parties married in June

No. 2012-098 contends that the trial court’s division of this award is inequitable. We affirm. 10th Circuit Court – Derry Family Division settlement is property subject to equitable distribution. Alternatively, he

, of Salem, by brief and orally, for the respondent.

court erred when it determined that his lump sum workers’ compensation

reporter@courts.state.nh.us

his divorce from the respondent, Dorothy Heinrich. He argues that the trial ___________________________ decree entered by the 10th Circuit Court – Derry Family Division (Sadler, J.) in DALIANIS, C.J. The petitioner, Kenneth Heinrich, appeals the final THE SUPREME COURT OF NEW HAMPSHIRE

Steven G. Shadallah

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as equitable distribution. We review this determination de p. 2 petitioner’s lump sum workers’ compensation settlement is property subject to

We first address whether the trial court erred when it decided that the

expenses.” This appeal followed. income and assets and after reviewing their fixed and discretionary monthly

divorce.” Holliday v. Holliday

[divorce on] each party, taking into consideration their access to ongoing

“includes any property acquired up to the date of a decree of legal separation or

sum workers’ compensation award “helps to equalize the financial aspects of arguing, he primarily relies upon In the Matter of Valence and Valence deemed a marital asset subject to division under RSA 458:16-a, I.” In so he would have earned after the dissolution of his marriage, it should not be 2

Valence

distribution. RSA 458:16-a, I. Property subject to equitable distribution

assets. The trial court specifically ruled that the equal division of the lump respondent rents her home; and (5) the equal division of the parties’ remaining respondent does not; (4) the fact that the petitioner owns his home, while the The petitioner argues that because the settlement “replaces income that

because the stock options at issue “may have been a reward for past services, , 147 N.H. at 667-68. We reasoned that such a formula was necessary options that were attributable to his employment during the marriage. marriage, we had to apply a time-based formula to determine the portion of the property is held in the name of either or both parties,” is subject to equitable stock options “belonged” to the husband upon the dissolution of the parties’ assets, real or personal, belonging to either or both parties, whether title to the N.H. 663 (2002). In Valence, we decided that to determine whether unvested In New Hampshire, by statute, “all tangible and intangible property and, 147

daughter; (3) the fact that the petitioner receives social security income, but the

(2004).

equitable distribution. See The trial court first determined that the lump sum award is subject to

receive the weekly payments.

Chamberlin & Chamberlin, 155 N.H. 13, 16 (2007).

equitable because of: (1) the parties’ long-term marriage; (2) the respondent’s only to him. The court determined that an equal division of this asset is

chose to receive the award as a lump sum payment instead of continuing to the lump sum award was issued, he had been receiving $442.04 weekly. He of taking the award as a lump sum payment or as weekly payments. Before

rejected the petitioner’s argument that the entire award should be distributed

petitioner’s life expectancy and future earnings. The petitioner had the option amount of the award was $241,570.00. It was calculated based upon the p. 3 Preston

during the marriage, it is deemed to be marital property.”

it is meant to replace, if the award or settlement was acquired

that, “regardless of the underlying purpose of the award or the loss third approach, known as the “mechanistic approach,” provides such as lost wages incurred during the marriage, it is marital. The

If it is intended to compensate for losses to the marital estate,

such as pain and suffering, then the award is separate property. settlement award is intended to compensate for personal losses, spouse depends upon the purpose of the settlement. If the to when or how acquired.” Id

legislative scheme, under which all

whether the award is deemed the separate property of the injured distribution of all of the property of divorcing parties without regard to title, or

, we explained: The analytical approach, we reasoned, did not fit with New Hampshire’s

as “marital” and “separate,” and divide only “marital property.” See

omitted; emphases added). New Hampshire, we explained, “permit[s] the settlement as the personal and separate property of the injured parties” is subject to equitable distribution. p. 3 Preston this context. The first approach always classifies the award or, 147 N.H. at 49 (quotation

Marriage of McNerney, 417 N.W.2d 205, 207 (Iowa 1987). The analytical approach “is popular among community property states.” In re

approach is used in jurisdictions that, unlike New Hampshire, classify property , 147 N.H. at 49 (citations omitted). We observed that the analytical

approaches to classifying personal injury awards or settlements in Valence Courts in other jurisdictions have followed one of three

equitable distribution. p. 3 Preston

In p. 3 Preston

which we apply the Hodgins, 147 N.H. at 50; Sukerman, 159 N.H. at 567. property at issue – the annuity and the pension benefit – was subject to N.H. at 48; Sukerman, 159 N.H. at 567. In both cases, we held that the equitable distribution of an accidental disability pension benefit. p. 3 Preston, 147 the husband in settlement of a personal injury claim; Sukerman concerned the (2009). Preston concerned the equitable distribution of an annuity issued to N.H. 48 (2001), and In the Matter of Sukerman & Sukerman, 159 N.H. 565

stands in contrast to In the Matter of p. 3 Preston and Preston, 147

(1992)). N.H. 711, 715-16 (1985) (superseded on other grounds by RSA 458:16-a, I

likened the unvested stock options at issue to certain retirement benefits to an incentive for future services, or a combination of both.” Id. at 668. We equitable distribution, but

p. 4 compensation benefits are not actually property, but income.” Schriner 4

cannot be considered property at the time of the divorce.” Schriner the date on which he filed for divorce determines the property subject to “income” for child support purposes. See We recognize that workers’ compensation benefits are considered

See

The petitioner “seeks to avoid this outcome by claiming that workers’

not mean, however, “that benefits received and retained during the marriage award the day before he filed for divorce. Thus even if, as the petitioner urges, RSA 458-C:2, IV (2004). This does

represented future income.” Id. N.W.2d at 498. “Moreover, he asserts his specific compensation award largely definition of “property” for equitable division purposes, it could have done so.

workers’ compensation award, the overall approach” in Preston award during the marriage, making it subject to equitable distribution.

before the decree of divorce or legal separation, it is property subject to Here, the trial court found that the petitioner obtained his lump sum

id. at 498.

legislature wanted to exclude workers’ compensation benefits from the In re Marriage of Schriner, 695 N.W.2d 493, 497-98 (Iowa 2005). Had the compatible with treating workers’ compensation benefits as a divisible asset.”

704. “While some differences exist between a personal injury award and a “marital” property, tend to apply the analytical approach. See Preston, 147 N.H. at 49; Johnson, 638 S.W.2d at

workers’ compensation award was acquired during the marriage, meaning Preston, 147 N.H. at 49-50; RSA 458:16-a, I. Under this approach, if the awards. See the statutory definition of “property” subject to equitable distribution. See We continue to believe that the mechanistic approach best comports with

approach. See, e.g., Johnson v. Johnson, 638 S.W.2d 703, 704 (Ky. 1982). Drake v. Drake, 725 A.2d 717, 721 (Pa. 1999), tend to apply the mechanistic spouse owns, with no distinction between marital and separate property,” Jurisdictions such as New Hampshire, which divide “all property that either

those that classify property as either “marital” or “separate” and divide only (1995). As with personal injury awards, “dual property” jurisdictions, meaning Benefits as Marital Property Subject to Distribution, 30 A.L.R. 5th 139, 149-50

Annotation, Divorce and Separation: Workers’ Compensation

analytical or the mechanistic approach to dividing workers’ compensation As with personal injury settlements, courts generally apply either the

distribution law.” Id. at 50. “the mechanistic approach best comports with New Hampshire’s equitable equitably divide the parties’ assets. See

p. 5 under the mechanistic approach” when the trial court considers how to As the petitioner concedes, “[c]omparably just results may be reached

disagree.

economic components of an award, settlement, or other monetary asset.” We mechanistic [approach] because [it] requires more precise consideration of the analytical approach is “inherently fairer and more accurate than the

viewed as the more enlightened view.” (Quotation omitted.) He argues that the

the analytical approach, asserting that “the analytical approach has been The petitioner urges us to abandon the mechanistic approach in favor of

Valence day before he filed for divorce. Moreover, unlike the unvested stock options in petitioner’s lump sum award “belonged” to him as soon as he received it – the considering the parties’ property in its entirety and the enumerated special

upon the dissolution of his marriage. No such formula is required here. The

In Valence value of the petitioner’s lump sum award is fixed and ascertainable, and his is there no need to rely upon the Valence formula when, as in this case, the In the Matter of Watterworth & Watterworth, 149 N.H. 442, 452 (2003), so too to divide a retirement account when the value of the account is ascertainable, money. Accordingly, just as there is no need to rely upon the Hodgins formula , the petitioner’s lump sum award is an ascertainable, fixed amount of property when received and retained during the marriage.” Id

determine whether the unvested stock options even “belonged” to the husband earnings after the divorce” under the approach we adopted in Preston

, a formula was necessary because, without it, we could not

disagree. his lump sum award is similar to the unvested stock options in Valence. We that the mechanistic approach applies, as we did in Valence. He argues that The petitioner asks that we carve out an exception to our general rule

received and retained during the marriage, just as other income becomes Workers’ compensation proceeds “become part of the divisible estate when

to apportion the proceeds received between lost earnings before the divorce and Schriner, 695 N.W.2d at 498. “As property of the marriage, we do not attempt marriage,” the proceeds become property subject to equitable distribution. proceeds represent future earnings, once received and retained during the see Valence, 147 N.H. at 667. “However, even if workers’ compensation employment are not considered to be property at the time of the divorce.” Id.; Additionally, “[w]e acknowledge that future earnings of a spouse from

retained earnings ultimately become property.” Id. N.W.2d at 498. “Child support is mainly predicated upon earnings, but home.” The petitioner reasons that without quantifying these assets and

p. 6 mention, on the other side of the ledger, of the liabilities inherent in owning a

was equitable. The record supports the trial court’s determination. See and determined that an equal distribution of the petitioner’s lump sum award 6

entirety to one party. Henry trial court is not precluded, however, from awarding a particular asset in its court said that the [petitioner] benefits from home ownership, but omits of the parties, without quantifying them.” As an example, he asserts: “The The petitioner argues that the trial court “selectively listed certain assets

the marriage and the value of property contributed by each party.” Id

In this case, the trial court considered the statutorily enumerated factors

relevant” in equitably distributing the parties’ assets. RSA 458:16-a, II(o). A

Watterworth, 149 N.H. at 453. needs, the needs of the custodial parent, the contribution of each party during

decree. In the Matter of Salesky & Salesky

make the distribution as equal as possible. Id, 163 N.H. at 183.

marital property is equitable.” In the Matter of Henry & Henry 453. Additionally, the court may consider “[a]ny other factor [it] deems “RSA 458:16-a, II creates a presumption that equal distribution of of the enumerated factors or give them equal weight. Watterworth, 149 N.H. at Salesky (quotation omitted); see RSA 458:16-a, II. The trial court need not consider all

as the length of the marriage, the ability of the parties to provide for their own “The statute enumerates various factors for the court to consider, such in determining matters of property distribution in fashioning a final divorce court’s distribution of it was equitable. We afford trial courts broad discretion. award is subject to equitable distribution, we now address whether the trial 183 (2012) (quotation omitted). Absent special circumstances, the court must Having concluded that the petitioner’s lump sum workers’ compensation, 163 N.H. 175,

whether the property belongs to only one or to both spouses. Preston, 157 N.H. at 708. findings can reasonably be made on the evidence presented, they will stand. exercise of discretion standard. Chamberlin legislature’s intent that any, 155 N.H. at 16. If the court’s review the trial court’s division of the parties’ assets under our unsustainable adopt that which is most consistent with our statutory scheme. “It was the Moreover, regardless of which approach is the “more enlightened,” we must, 157 N.H. 698, 708 (2008). We

N.H. at 51. We must adopt the approach that furthers this intent.

separation or divorce would be subject to equitable distribution,” regardless of

distribution of a marital asset means awarding it, in whole, to one party.”). circumstances, [the trial court] may find, in its sound discretion, that equitable on appeal. See p. 7 and divide the workers’ compensation award accordingly. This is not our role

In effect, the petitioner asks this court to reweigh the equities in this case

salary and her ability to “augment her income in the future.” instance, he argues, the court failed to consider the respondent’s $45,198 factors in deciding how to apportion” his workers’ compensation award. For sustain the discretionary judgment made.” In the Matter of Miller & Todd review “only whether the record establishes an objective basis sufficient to 7

determination if it could reasonably be made.” Id

The petitioner also asserts that the trial court “failed to consider crucial

court’s decision was a sustainable exercise of discretion, meaning that we

of discretion. court’s distribution of the petitioner’s award constitutes a sustainable exercise upon our review of the record submitted on appeal, we conclude that the trial its reasons and make specific findings and rulings supporting its decision.” In. (quotation omitted). Based N.H. 630, 640 (2011) (quotation omitted). We “will not disturb the trial court’s

compensation award. findings to support its equal apportionment of the petitioner’s workers’ (decided August 17, 2012). Our role is only to determine whether the trial

Town of Atkinson v. Malborn Realty Trust, 164 N.H. ___, ___

See and that the petitioner owns his own home, while the respondent rents a home.

child. See concludes that an unequal distribution of property is warranted, it should state

court referenced several of the factors set forth in RSA 458:16-a (2004). For

court’s narrative order, we conclude that the trial court made sufficient written remaining assets had been divided equally. See id. Given the record and the the factors listed in RSA 458:16-a.” Id RSA 458:16-a, II(b). The court further considered the fact that the parties’

petitioner receives social security income, but that the respondent does not,

RSA 458:16-a, II(d). The court also examined the fact that the

flexible hours so as to attend to the needs of the parties’ special needs adult RSA 458:16-a, II(a). The court also found that the respondent needed to work reasons for the division of property which it orders.” “Further, if the court RSA 458:16-a, IV (2004) requires the trial court to “specify written

workers’ compensation award was equitable. To support its decision, the trial Here, the trial court ruled that an equal division of the petitioner’s

court can satisfy these requirements by citing facts from the record that reflect the Matter of Dube & Dube, 163 N.H. 575, 582 (2012) (quotation omitted). “A

compensation award equally lacks justification. liabilities, the court’s finding that it was equitable to divide his workers’ p. 8 8

.

nor demonstrated that he raised it in the trial court. See he lives. We decline to review this argument because he has neither briefed it findings, such as those concerning the ownership status of the home in which

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

Affirmed

Oak Prop. Mgmt., 151 N.H. 24 p. 8 8, 250 (2004). 149 N.H. 226, 230 (2003) (issues not briefed are deemed waived); Bean v. Red

of his workers’ compensation award was premised upon incorrect factual At oral argument, the petitioner contended that the trial court’s division