2013-0401, In the Matter of John G. Lyon and Kimberly Anne White Lyon

correct standard when it ruled on the Wife ’s petition, w e vacate and remand. that she articulates on appeal. Because the trial court did not apply the the correct one to apply to the Wife ’s petition, we disagree with the standard agree with the Wife that the “substantial change of c ircumstances” test is not for alimony and that the Husband has a continuing ability to pay. Although we that to prevail on her petition, she must show that she has a continuing need requiring her to show a subst antial change of circumstances. She contends argues that the trial court applied the wrong standard to her petition by denying her petition to bring forward and modify alimony. On appeal, she J.) granting summary judgment to the petitioner, John G. Lyon (Husband), and appeals an order of the 2 n d Circuit Court – Lebanon Family Division (MacLeod, CONBOY, J. The respondent, Kimberly L yon (now McConnell) (Wife),

Rebecca A. Wagner, of West Lebanon, by brief, for the respondent.

the brief), for the petitioner. Vitt, Brannen & Loftus, PLC, of Norwich, Vermont (John B. Loftus, III on

No. 2013 - 401 2 n d Circuit C ourt – Lebanon Family Division

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 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: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

standard as initial awards of alimony under RSA 458:19, I, i.e., that the moving “show[] that the legislature intended for renewals to be subject to the same p. 2 2001 amendments to RSA 458:14 (2004) and RSA 458:19 (Supp. 2013) test. La f lamme, 144 N.H. at 527 (quotation omitted). She argues that the contends that a party seeking to renew an alimony award need not meet th at award, making the current [alimony] amount either improper or unfair,” she show “that a substantial change in circumstances has arisen since the initial Although she concedes that a party seekin g to modify an alimony award must the same standards that govern a motion to modify an alimony award. The Wife argue s that the trial court erred by subjecting her petition to

appli cation of the law to the facts de novo.” Id. at ___, 8 p. 2 2 A.3d at 227. summary judgment.” Id. at ___, 82 A.3d at 227. “We review the trial court’ s party is entitled to judgment as a matter of law, we will affirm the grant of that evidence discloses no genuine issue of material fact, and if the moving Reg’ l. Sch. Dist., 165 N.H. ___, ___, 82 A.3d 225, 227 (2013). “If our review of in the light most favorable to the non - moving party.” Dichiara v. Sanborn the affidavits and other evidence, and all inferences properly drawn from them, “In reviewing the trial court’ s grant of summary judgment, we consider

followed. applied to the Wife ’s petition and ruled in the Husband ’s favor. This appeal agreed with the Husband that the “substantial change of circumstances” test facts set forth therein as true. See RSA 491:8 - a, IV ( p. 2 2010). The trial court Accordingly, when ruling on the Husband ’s motion, the trial court accepted the contradictory evidence can be presented at trial.” RSA 491:8 - a, II (2010). evidence “showing specifically and clearly reasonable grounds for believing that to support her pleading with the requisite affidavits or other competent (1999). Although the Wife timely objected to the Husband ’s motion, she failed for another three years. See Laflamme v. Laflamme, 144 N.H. 524, 527 - 29 change of circumstances that warranted extending the existing alimony order to establish that there was an unanticipated or unforeseeable substantial Husband moved for summary judgment, arguing that the Wife ’s petition failed the medication that would enable her to timely finish her education. The a ttention d eficit h yperactivity d isorder and, without alimony, could not afford needed another three years of alimony because she was newly diagnosed with alimony award for another three years. She alleged in her petition that she On May 31, 2012, the Wife filed a petition to extend the soon - to - expire

first occurs.” p. 2 2007, through June p. 3 30, 2012, “or until t he death of either party, which ever 1, 2007, through June 30, 20 07, and $5,000 in monthly alimony from July 1, required the Husband to pay the Wife $3,000 in monthly alimony from January 2007. Their divorce decree incorporated their permanent stipulation, which The record establishes the following facts. The parties divorced in May 3

have become accustomed during the marriage; and alimon y, taking into account the style of living to which the parties meet reasonable needs while meeting those of the party seeking

accustomed during the marriage; and account the style of living to which the parties have become 458: 16 - a, to provide for such party’ s reasonable needs, taking into or both, including property apportioned in accordance with RSA

court finds that: made within 5 years of the decre e of nullity or divorce and the indefinite period of time, if the motion for alimony payments is need of alimony, either temporary or permanent, for a definite or court shall make orders for the payment of alimony to the party in I. Upon motion of either party for alimony payments, the

RSA 458:19 provides, in part:

interpretation. Id. statutory language is ambiguous or subject to more than one reasonable (2010). However, w e review legislative history to aid our analysis whe n the indications of legislative intent. Smith v. City of Franklin, 15 9 N.H. 585, 588 statute is plain and unambiguous, we do not look beyond it for further context of the overall scheme and not in isolation. Id. When the language of a legislature did not see fit to include. Id. Further, we interpret a statute in the not consider what the legislature might have said or add language that the used. Id. We interpret legislative intent from the statute as written and will language of a statute, w e ascribe the plain and ordinary meaning to the words the words of the statute considered as a whole. Id. When examining the interpretation, we are the final arbiter of the legislature ’ s intent as expressed in re Guardianship of Eaton, 16 p. 3 3 N.H. 386, 389 (2012). In matters of statutory interpretation. We review the trial court’s statutory interpretation de novo. In Resolving the issues in this appeal requires us to engage in statutory

motions to renew an expired alimony award. change in circumstances” test applies to both motions to modify alimony and soon - to - expire alimony award. However, he argues that the “substantial The Husband does not dispute that the Wife ’s petition was to renew a

from a public policy standpoint.” from whom it is sought.” Sh e also argues that “[s] uch a standard makes sense party show a need for alimony and an ability to pay on the part of the party p. 4 4

amendments were intended solely to create a five - year limitations period on explained in another context, the legislative history shows that those ambiguity” allowing resort to legislative history). As we have previously 212, 15 p. 4 4 N.H. 763, 766 (2007) (statute ’s silence “arguably creates an 2001 amendments to RSA 458:14 and RSA 458:19. See In re Juvenile 2005 - The Wife ’s argument also has no support in the legislative history of the

payments,” but was a petition to extend or renew the existing alimony award. Here, the Wife ’s petition to “renew” alimony was not a petition for “new alimony makes RSA p. 4 458:19, I, applicable to “a motion for new alimony payments.” Canaway, 161 N.H. 286, 290 (2010), we explained that this “limiting phrase” motion “of either party for alimony payments.” In In the Matter of Canaway & RSA 458:19, I, as we have previously interpreted it. RSA 458:19, I, applies to a appl y to awards renewed after they expire is contrary to the plain language of The Wife ’s argument that the standards governing initial alimony awards

necessary, and may award costs as justice may require.” and modify any order made by it, may make such new orders as may be the court, upon proper application and notice to the adverse party may revise RSA p. 4 458:14 provides: “Except as otherwise provided in RSA 458:19, I and VII,

change or alter in any way the terms of the original alimony order. alimony order. Nothing i n this paragraph shall be construed to made within 5 years of the termination date of the permanent upon the petition of either party, provided that such petition is alimony for a definite period of time, such order may be renewed, VII. In cases where th e court issues an order for permanent

. . . .

may agree or the court orders. may order alimony to be paid for such length of time as the parties modification, or extension of a prior order for alimony, the court III. Upon a decree of nullity or divorce, or upon the renewal,

be just and equitable. for the payment of an alimony allowance when such orders would II. Upon motion of either party, the court may make orders

seek employment outside the home. condition or circumstances make it appropriate that the parent not responsibilities under RSA p. 4 461 - A for a child of the parties whose reasonable needs or is allocated parental rights and through appropriate employment at a standard of living that meets

There is no indication in the legislative history of either RSA 4 p. 5 58:14 or RSA applies” when deciding whether to award, modify, or renew alimony. I d. at 7. the 2001 legislation was not intended to “change[ ] the rule that the court (Testimony of John Cameron, Esq.). However, this same witness explained that pay.” Senate Comm. on Judiciary, Hearing on HB 509 (May 16, 2001) at 5 - 6 alimony and the ability of the person that it’s being requested of to be able to which he stated involved examining “the need of the person that is requesting court would determine w hether to grant a renewal “on the current criteria,” before the senate judiciary committee who stated that he “assume[d]” that a The Wife relies upon the statement of a single witness at a public hearing

VII. order i s filed outside of the five - year limitations period in RSA 4 p. 5 58:19, I, and alimony order or to renew an expired alimony order when the petition for such orders as may be necessary,” it does not authorize a trial court to make a new and notice” to “revise and modify any order made by it” and “make such new 458:14 allows a trial court in a divorce proceeding “upon proper application 2001, 256:1. In context, that language clarifies that although, generally, RSA language – “Except as otherwise provided in RSA 458:19, I and VII.” Laws, :3. At the same time, the legislature amended RSA 458:14 to add the exception of the termination date of the permanent alimony order.” Laws 2001, 256:2, prior award of permanent alimony for a definite period be “made within 5 years divorce,” and RSA 458:19, VII was added to r equire that any petition to renew a any new petition for alimony be “made within 5 years of the decree of nullity or In accord with that purpose, RSA 458:19, I, was amended to require that

alimony payments.” N.H.H.R. Jour. 1073 (2001). of the divorce or nullity decree or from the date of the termination date of statute of limitations on establishing or renewing alimony either from the date 127 p. 5 5 (2001). The purpose of the 2001 legislation was to “create[ ] [a] . . . 2000); see also In the Matter of Kenick & Bailey, 156 N.H. at 359; N.H.S. Jour. at any time after the divorce became final. See RSA 458:14 (1992), :19 (Supp. seek alimony for the first time or could seek a renewal of a prior alimony award 458:14. See Laws 2001, 246:1 -: 3. Before HB 509 was enacted, a spouse could phrase “[e]xcept as otherwise provided in RSA 458:19, I and VII” to RSA years of the decree of nullity or divorce” to RSA 458:19, I, and added the 458:19, added the phrase “if the motion for alimony paymen ts is made within 5 The 2001 legislation, House Bill (HB) 509, added paragraph VII to RSA

to renew an expired alimony award. statutes themselves, is silent with regard to the standards to apply to petitions N.H.S. Jour. 127 p. 5 5 (2001). The legislative history, like the plain language of the award expired. See In the Matter of Kenick & Bailey, 15 p. 6 6 N.H 356, 359 (2007); decree and on applications for renewed alimony when the original alimony applications for new alimony when no alimony was ordered in the original 6

DALIANIS, C.J.