2011-736, In the Matter of Gabrielle Muller and William Muller

at the time of trial the home was worth $340,000. parents. The marital home is in the Husband’s name. The parties agreed that from Bank of America, N.A. and $186,332.23 in cash from the Husband’s

Primmer Piper Eggleston & Cramer, PC

in November 2006 with funds from a mortgage loan in the amount of $200,000 IN THE MATTER OF GABRIELLE MULLER AND WILLIAM MULLER

one minor child, born in July 2007. The parties purchased a home in Auburn

Muller (Wife), and William Muller (Husband) married in October 2006 and have The following facts are drawn from the record. The petitioner, Gabrielle No. 2011-736 10th Circuit Court – Derry Family Division

, of Manchester (Andrew K. Wilson

purposes. We affirm in part, vacate in part, and remand.

10th Circuit Court – Derry Family Division (Moore

reporter@courts.state.nh.us

home and imputing $68,000 in annual income to him for child support Muller, appeals the trial court’s rulings apportioning the equity in the marital ___________________________ , J.), the respondent, William CONBOY, J. In this appeal from a final divorce decree issued by the THE SUPREME COURT OF NEW HAMPSHIRE

and orally), for the petitioner. Bossie & Wilson, PLLC on the brief to press. Errors may be reported by E-mail at the following address: Connor on the brief and orally), for the respondent.

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 net proceeds after payment of the first mortgage

p. 2 reasonably competitive price,” which the court expected would “maximize[ ] the that the residence “shall immediately be placed on the market for sale . . . at a obligation due his parents relative to the marital residence.” The court ordered

the trial court ruled that the Husband was to be “solely responsible for any

to seriously injure health or endanger reason). In allocating the marital debt, based divorce pursuant to RSA 458:7, V (2004) (fault based on treatment so as After a final evidentiary hearing, the trial court awarded the Wife a faultrecognized as a debt this Court is left with no other option than to

the time of trial. Husband’s parents’] contribution to the marital residence is not poor job performance after multiple warnings. He remained unemployed up to Due to the fact that this Court is entering a finding that [the Eleven months before trial, the Husband was terminated from his job for equity in the marital residence by noting:

did not indicate when the Husband signed it. “evidence a valid debt.” The court concluded its order evenly dividing the

Husband signed the mortgage deed. The deed was attested to by a notary who the marital residence,” the trial court ruled that the note and mortgage did not parents, which referenced a November 22, 2006 promissory note. Only the note and second mortgage in “an attempt to divest the [Wife] of any interest in Husband filed with the registry of deeds an undated mortgage deed to his bases for its opinion that the Husband and his parents drafted the promissory

actually sign the note until August 18, 2009. Approximately one month later, find the [Husband’s] representations that the parties agreed to [a] $180,000 typewritten date on the note was November 22, 2006, but the Husband did not aforementioned order, this Court is entering a specific finding that it does not $186,332.23, which was signed by the Husband and his father. The to be “divided equally between the parties.” It continued: “In entering the

home, the Husband executed a promissory note to his parents in the amount of costs.” (Emphasis added.) The court ordered “the net proceeds of the property” In August 2009, nearly three years after the purchase of the marital, taxes, and standard closing

purchased, no second mortgage was filed with the registry of deeds.

indicated that they expected to be repaid. At the time the home was

the money to be a gift, and asserted that the Husband’s parents never was lent by his parents pursuant to an oral agreement; the Wife understood Husband’s parents was a loan or a gift: the Husband asserted that the money At trial, the parties disagreed as to whether the $186,332.23 from the parents, and found that the recorded mortgage constituted fraud.

p. 3 the court determined that she did not agree to any obligation to the Husband’s

operate to invalidate the trial [c]ourt’s [o]rder to sell the marital home,” because mortgage deed, but contends that the recorded instruments “should not the trial court “invalidated” the Husband’s parents’ promissory note and

disposition as entered by the trial [c]ourt.” She agrees with the Husband that

asset of the marriage, however encumbered, and clearly available for regard to the Husband’s parents’ interest because “the property was clearly an sale of the marital residence and distribution of the resulting equity without The Wife responds that the trial court did not err when it ordered the

property. conveyed while the Husband’s parents continue to hold a mortgage on the

sold cannot be effectuated as a practical matter since clear title could not be

their fundamental rights; and (4) the court’s order that the marital home be

the marital residence was entered without due process of law, in violation of over them); (3) the order vitiating the Husband’s parents’ property interest in participate (nor could they have, since the family division lacks jurisdiction

parents, since they were necessary parties to the proceeding, but did not

effectively abolishing the Husband’s parents’ interest, is not binding upon the be brought in the superior court in the first instance; (2) the court’s order, note, since disputed claims to marital real estate asserted by third parties must

jurisdiction to effectively invalidate the parents’ mortgage deed and promissory

residence. He asserts that: (1) the family division lacked subject matter matter of law by disregarding the Husband’s parents’ interest in the marital We first address the Husband’s argument that the trial court erred as a

legally erroneous and unsupported by the record.

unemployed and its decision to impute $68,000 in annual income to him were home; and (4) the trial court’s finding that the Husband was voluntarily its discretion in awarding the Wife fifty percent of the equity in the marital

the court characterized it as a gift; (3) the trial court unsustainably exercised

the $186,332.23 payment from the Husband’s parents in view of the fact that court unsustainably exercised its discretion by failing to award the Husband promissory note and mortgage deed to the Husband’s parents; (2) the trial

of law by effectively ordering the parties to disregard the $186,332.23 On appeal, the Husband argues that: (1) the trial court erred as a matter

in annual income to him.

(hereinafter “unemployed”), and, in calculating child support, imputed $68,000

The court also found the Husband voluntarily unemployed/underemployed

marital residence.

has no bearing on the disposition/division of the equity in the determine that it was initially a gift to the [Husband] and as such ordinary meanings to words used.” In the Matter of Gray & Gray p. 4 language found in the statute and where possible, we ascribe the plain and “When undertaking statutory interpretation, we first examine the

assign “all family matters of a single family to one family division justice or

interest in marital property. that of the superior court, to resolve questions of a third party’s claim of whether the family division has jurisdiction, either exclusive or concurrent with

legislative intent. Id 4

specially selected and trained to deal effectively with such issues,” and to

of the overall statutory scheme.” Id

court would lack jurisdiction over this dispute; the question before us is

and unambiguous, we need not look beyond it for further indications of

“prompt and fair resolution of family issues by justices and marital masters petitions for divorce.” Id The legislature created the judicial branch family division to provide

(quotation omitted). “We interpret statutes not in isolation, but in the context legislation nor add words which the lawmakers did not see fit to include.” Id. the superior court in the first instance. Neither party argues that the superior. “Courts can neither ignore the plain language of the interest, or whether, as the Husband argues, that claim must be addressed in Daine v. Daine jurisdiction to determine the validity of the Husband’s parents’ mortgage 65 (2010) (quotation and brackets omitted). When a statute’s language is plain determine a case concerning subject matters over which it has no jurisdiction.”, 160 N.H. 62, third party’s mortgage interest in real property. “A court lacks power to hear or

power conferred by statute to decide cases in certain discrete areas, including “The family division is a court of limited jurisdiction, with exclusive

this case is a question of law subject to de

relevant statutes to determine whether the family division had subject matter In the Matter of Mallett & Mallett, 163 N.H. 202, 207 (2012), we look to the require us to analyze the family division’s jurisdiction to effectively invalidate a jurisdiction of the family division are limited to those conferred by statute, see

the couple’s divorce proceeding.” In re Skorich & O’Neil, 159 N.H. 615, 622 (2010).

“The ultimate determination as to whether the trial court has jurisdiction in

, 157 N.H. 426, 428 (2008) (quotation and brackets omitted).

subject to bank’s pre-divorce attachment). Both parties’ arguments therefore (despite parties’ stipulated division of marital property, residence remained 2005); cf. In the Matter of Jasper-O’Neil & O’Neil, 149 N.H. 87, 89 (2003)

super[s]ede the rights of creditors of the owner spouse during the pendency of equitable interest of a non-owner spouse in marital property does not no impediment to the court’s disposition of the property is unavailing. “The We note first that the Wife’s argument that the recorded mortgage posed only property that belongs to the divorcing parties. See p. 5 However, RSA 458:16-a (2004) allows the family division to distribute

dissolution action into a creditor’s proceeding.’” Id actions in order to litigate their claims. To do otherwise would be to turn a

jurisdiction lies with the judicial branch family division.” shall have the powers of a court of equity in cases where subject matter RSA 490-D:3 (2010), which provides that “the judicial branch family division

a rule which will not require creditors to intervene in contested dissolution

458:16-a, II (“When a dissolution of a marriage is decreed, the court may order distribute marital property only to the divorcing parties themselves. RSA 649 P.2d 997, 1003 (Ariz. Ct. App. 1982)). the marital estate”). RSA 458:16-a, II also allows the family division to

marital assets to pay their creditors.”). “‘We believe it is sound policy to adopt personal, belonging to either or both parties Nothing in the statute authorizes trial courts to order a sale of the parties’ authorizes trial courts to distribute marital property ‘between the parties.’ Beal, 153 N.H. 349, 350 (2006) (“The plain language of [RSA 458:16-a, II]

of their divorce, the trial court did not commit legal error by excluding [it] from corpus “was not an asset belonging to either or both of the parties at the time practice). Further, the legislature’s recognition that the need to render Chamberlin & Chamberlin, 155 N.H. 13, 17 (2007) (holding that, because trust . . . court[ ].” RSA 490-D:2, I (2010). “Accordingly, in this state, original held in the name of either or both parties.” (emphasis added)); In the Matter of complex. See, whether title to the property is (“Property shall include all tangible and intangible property and assets, real or property, including in cases where the value or ownership of the assets may be

relevant divorce statutes governs issues of, among other things, the division of jurisdiction as encompassing “divorce” generally, the overall scheme of the Although RSA chapter 490-D expressly defines the family division’s

(2012) (upholding family division’s valuation of divorcing party’s dental division as procedurally jurisdiction was previously exercised in the superior, e.g., In the Matter of Cottrell & El-Sherif, 163 N.H. 747, 748-49

statutes, the family division has the authority to value and divide marital the statute provides that jurisdiction over, inter, 163 N.H. at 209. Under these

, 157 N.H. at 427.

paternity,” are “exclusively exercised through the judicial branch family nullity of marriage, alimony, custody of children, support, and to establish

accessible to the family.” RSA 490-D:1 (2010) (amended 2012). To this end, marital master located in a family division court that is geographically in the parties’ marital property. See

p. 6 division has no jurisdiction to determine the validity of a third party’s interest

actions regarding real or personal property in decedent’s estate).

divorcing party. In the absence of express legislative authorization, the family decedent.” In re Estate of Porter court jurisdiction over real property disputes, we held in O’Dwyer

estate); RSA 547:11-c (2007) (granting probate court jurisdiction over quiet title

concurrent with the superior court, to invalidate the property interest of a non- issues involving real estate of the decedent if the property is in the estate of the legislature to grant the family division jurisdiction, either exclusive or probate court context. In the absence of an explicit legislative grant of probate Act of 1993,” which expressly granted the probate court “jurisdiction to resolve RSA chapter 490-D nor RSA chapter 458 reflects an intent on the part of the disputes concerning the real estate of a decedent through the Omnibus Justice This interpretation is also supported by the development of the law in the

could have done so. whether it was an asset of the estate). After our decision in O’Dwyer the court jurisdiction to determine title to real estate in order to establish settlement, and final distribution of estates of deceased persons did not grant judgment actions regarding title to real or personal property in decedent’s over all matters and things of probate jurisdiction relating to the sale, RSA 547:11-b (2007) (granting probate court jurisdiction over declaratory omitted); see also RSA 547:3 (2007 & Supp. 2012) (probate court jurisdiction);

statutory scheme is supported by canons of statutory interpretation. Neither legislature effectively expanded the probate court’s jurisdiction to encompass Our reading of the powers granted the family division under the current, “the to determine the validity of third parties’ asserted interests in real property, it disregard or invalidate a third party’s claim of interest in marital property.

(1992) (holding that a statute conferring upon the probate court jurisdiction lacked such jurisdiction. See In re Estate of O’Dwyer, 135 N.H. 323, 324 superior court was the proper forum for such a dispute, and the probate court division of marital debt. See that the

statute.”). Had the legislature intended to grant the family division jurisdiction pursuant to RSA 458:16-a, the family division does not have the jurisdiction to is statutory, the court has only such power in that field as is granted by

example, is within the statutory purview of the family division, as is the asset; the division of the net equity in a marital home subject to a mortgage, for not imply that the family division lacks jurisdiction to divide an encumbered

factors set forth in RSA 458:16-a). However, when dividing such property assets and debt was sustainable exercise of discretion when supported by 323, 327 (2007) (family division’s award to one party of bulk of divisible marital

family division lacked the jurisdiction to invalidate it. Our holding today does Because the mortgage interest at issue here belongs to a third party, the erred in finding that he was voluntarily unemployed. Because trial courts are

p. 7 terminated from his employment eleven months before trial, the trial court The Husband next argues that because he had been involuntarily

this claim of error.

the temporary orders were subject to modification at the final hearing, we reject

no ruling as to whether the Husband was voluntarily unemployed. Because In its subsequent temporary order of October 25, 2010, the court again made completion of discovery, [and] subject to recapture at the parties’ final hearing.”

court expressly stated that its order was “subject to modification upon the

ruling as to whether the Husband was voluntarily unemployed. Moreover, the obligation to reflect his employment termination. However, the court made no the trial court granted the Husband’s request for reduction of his child support

finding of voluntary unemployment. In an October 6, 2010 temporary order,

temporary orders, which, according to the Husband, preclude an ultimate As to his first claim of error, the Husband relies on two October 2010

all four contentions.

imputing income to him at his highest previous income level. We disagree with

she was also unemployed. Fourth, he contends that the trial court erred by court erred by imputing income only to him and not to the Wife, even though voluntary unemployment constituted legal error. Third, he argues that the trial

involuntarily terminated from his employment, the trial court’s finding of

that, because testimony at the final hearing reflected that he had been earlier found that he was not voluntarily unemployed. Second, he contends by finding him voluntarily unemployed in its final order because the court had

Husband advances four claims. First, he maintains that the trial court erred

of $68,000 in annual income for child support purposes. Specifically, the

court’s finding that he was voluntarily unemployed and its imputation to him Finally, the Husband asserts that the record does not support the trial

equity in the marital home or the Husband’s parents’ contribution thereto.

we do not address the Husband’s other claims of error related to the division of parents’ claim of interest in the marital home. Given our ruling on this issue, jurisdiction of the superior court to determine the validity of the Husband’s

distribution of the equity in the marital home must account for the exclusive

consistent with this opinion. Any final ruling by the trial court concerning distribution of the equity in, the marital home, and remand for proceedings asset. Accordingly, we vacate the trial court’s order for the sale of, and

division to invalidate a non-divorcing party’s claim of interest in a marital

versions of RSA 490-D:2 or RSA 458:16-a to confer jurisdiction on the family legislature did not include,” Beal, 153 N.H. at 350, we do not read the current will not consider what the legislature might have said or add words that the Because “[w]e interpret legislative intent from the statute as written and voluntarily unemployed. The trial court noted that the circumstances of the p. 8 Here, the record supports the trial court’s finding that the Husband was

Noddin v. Noddin the parent’s termination from employment. See eligible for a reduction in support payments due to his reduced ability to pay. support guidelines). record failed to support that a parent reduced income to circumvent child

child support in an appropriate amount”); see his child support obligation or thwarting [the other parent’s] ability to receive

will not be disturbed on appeal if supported by evidence in the record. In the party is voluntarily unemployed is a question for the fact finder, whose decision physically or mentally incapacitated.” RSA 458-C:2, IV(a) (2004). Whether a

payment of child support, including the facts and circumstances surrounding was terminated from employment because of his own wrongdoing was not impute income despite a finding of voluntary underemployment where the Lynn, 158 N.H. 615, 616, 618 (2009) (affirming the trial court’s decision not to wrongdoing.” In the Matter of Sarvela & Sarvela also In the Matter of Lynn &

unemployed parent did not terminate employment “with the intent of avoiding Matter of Bazemore & Jack, 153 N.H. 351, 353 (2006) (noting a voluntarily Noddin avoid child support on the question of voluntary unemployment. See In the same year we decided Sarvela, we recognized the relevance of a party’s intent to voluntarily becomes unemployed or underemployed, unless the parent is id. at 434-36. In fact, in the

considering facts and circumstances bearing on a parent’s intent to avoid years. Prior to the enactment of RSA chapter 458-C, we held that a parent who However, the holding in Sarvela does not preclude a trial court from

voluntarily underemployed because he lost his job(s) due to his own underemployment “to the extent that the trial court found the [parent] to be light of Rossino, we subsequently vacated a trial court’s finding of voluntary . In the Matter of Rossino & Rossino, 153 N.H. 367, 370 (2006). In 458-C, however, we ruled that RSA 458-C:2, IV(a) supersedes our decision in

, 123 N.H. 73, 76 (1983). After the enactment of RSA chapter earning and the amount a parent has earned in cases where the parent

the discretion to consider “the difference between the amount a parent is In calculating gross income for child support purposes, a trial court has of a parent’s departure from employment has evolved over the past twenty Our case law regarding a trial court’s consideration of the circumstances

Matter of Stall & Stall, 153 N.H. 163, 167 (2005).

the Matter of Scott & Pierce, 160 N.H. 354, 358 (2010). support absent an unsustainable exercise of discretion or an error of law. In N.H. 55, 59 (2005), we will not disturb the trial court’s rulings regarding child respective abilities to meet them, see In the Matter of Donovan & Donovan, 152 in the best position to determine the parties’ respective needs and their unsustainable exercise of discretion. See p. 9 establishing that the court’s imputation of income only to him was an near future,” we do not conclude that the Husband has met his burden of

anticipated that the Wife would be “gaining full-time employment in the very

caregiver to the parties’ child. Although the court also stated that it The trial court found, and the record reflects, that the Wife is the primary court suggested that she seek employment by the time of the final hearing.

purposes of calculating child support. trial court’s imputation of $68,000 in annual earnings to the Husband for approximately $68,000. Under all the circumstances, we find no error in the

Wife, like the Husband, is unemployed, and that in a temporary order, the trial

eleven months prior to trial, the Husband was earning an annual salary of

and not to the Wife support reversal. The Husband alleges simply that the Nor does the trial court’s decision to impute income only to the Husband

court’s conclusion that the Husband was voluntarily unemployed. 9

earned.” RSA 458-C:2, IV(a). When he was terminated from his employment

physically or mentally incapacitated. On this record, we find no error in the

between the amount that parent is earning and the amount that parent has underemployed, the court “may consider as gross income the difference DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred. If a trial court determines that a parent is voluntarily unemployed or

more than $7,000. Moreover, there was no evidence that the Husband was a $5,000 motorcycle repair rather than paying his child support arrearage of “well documented history.” For example, the Husband testified that he paid for

Husband’s failure to pay his share of the child support as “a weapon” with a

checking a website, jobsnh.com, every day. Cf

assertion that he was looking for work “all the time.” ability to become employed. The trial court did not find credible the Husband’s job through the commencement of trial, and found that the Husband had the

finding of voluntary unemployment). Further, the trial court characterized the that parent had been looking for employment did not necessarily preclude a

Husband testified that his efforts to seek employment consisted mainly of

Husband’s actions during the eleven months between the time that he lost his Husband’s termination were “suspect,” but it primarily focused on the