2012-0850, In re Estate of Lucien Couture

The respondent, Hellen Couture, appeals an order of the

orally), for the respondent. Wing & Weintraub, P.C., of Milford (David C. Wing on the brief and 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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as with him.” The trial court further found that the decedent provided life

p. 2 married to Tamara, “or at least in a more intimate marriage-like relationship

wrongfully induced the decedent to marry her, even though she was already had established by clear and convincing evidence that the respondent Based upon the evidence at trial, the trial court found that the petitioner

justiciable. The trial court denied the motion, and the case proceeded to trial. share of the life insurance proceeds, and that the instant claim was not yet court lacked subject matter jurisdiction to impose a constructive trust on her

the respondent moved to dismiss the petition on the grounds that the trial

court allowed the petitioner to be substituted as a party. In November 2011, constructive trust. When it was determined that the sister lacked standing, the In February 2009, the decedent’s sister brought the petition for a

benefit was paid to the respondent and fifty percent was paid to the child.

Pursuant to the subject beneficiary designation form, fifty percent of the death was scheduled to occur, the decedent committed suicide. He died intestate. respondent. On January 7, 2009, only days before the final divorce hearing

month. In August 2008, the decedent filed a petition to divorce the

New Hampshire in 2008 and lived with the decedent for approximately one her daughter moved to Hawaii. The respondent and her daughter returned to insurance policy. In October or November 2007, Tamara, the respondent, and

as his beneficiaries of a death benefit payable under an employer-provided life

In December 2005, the decedent designated the respondent and the child

respondent’s marriage to the decedent.

The respondent and Tamara continued their relationship throughout the

The trial court found the relationship was “more likely than not” a marriage.

decedent, the respondent had a concurrent relationship with John Tamara. respondent and the child lived together in Somersworth. Unbeknownst to the not live together as a family. Instead, the decedent lived in Rochester, and the

Following their marriage, the decedent, the respondent, and the child did

to whether he could have fathered the child. biological child. Nor did he seek medical confirmation or further evaluation as

respondent’s pregnancy, he did not question whether the child was his

father. Although the decedent had had a vasectomy many years before the after the child was born. The child’s birth certificate lists the decedent as her The respondent and the decedent married in September 2003, a few days

when the petition was filed. respondent’s portion of the insurance proceeds, which were placed in escrow designation. The petitioner sought a constructive trust over only the

the respondent and to the daughter pursuant to the decedent’s beneficiary claimed was his. The $140,000 life insurance proceeds were paid equally to according to the beneficiary form, the fact that the petitioner is not named as a

p. 3 form is mistaken. Because the proceeds have already been distributed

is not the decedent’s named beneficiary. Her reliance upon the beneficiary no legal or equitable rights at stake in the life insurance proceeds” because he We similarly reject the respondent’s contention that the petitioner “has

suffered a legal injury against which the law was designed to protect.” evaluating whether a party has standing to sue, we focus on whether the party

motion for reconsideration, and this appeal followed. proceeds “as constructive trustee for the benefit of [the decedent’s] heirs.” law. See In re Angel N., 141 N.H. 158, 161 (1996). unless it is unsupported by the evidence or plainly erroneous as a matter of recipient of the life insurance proceeds pursuant to the intestate succession

upheld,” the life insurance proceeds will be “award[ed] . . . to the Estate.” “In

interest in the decedent’s estate. See RSA 561:1 (2007); cf. In re Estate of because, as one of the decedent’s heirs, he has a direct legal or equitable insurance proceeds. The trial court denied the respondent’s subsequent of the constructive trust, the respondent merely holds the life insurance

A:4 (2007). Consequently, we will not disturb the probate division’s decree standing because, she, as the decedent’s surviving spouse, will be the ultimate We disagree with the respondent’s argument that the petitioner lacks she concedes in her brief that “[i]n the event that the constructive trust is instant dispute, even though he is one of the decedent’s heirs, and even though action challenging a will’s validity.). direct legal or equitable interest in the decedent’s estate” to have standing in an The respondent first argues that the petitioner lacks “standing” in the Kelly, 130 N.H. 773, 778 (1988) (“[A] will contestant must generally have some

omitted). Here, the petitioner has standing to seek a constructive trust the court imposed a constructive trust on the respondent’s share of the life allowed to retain the proceeds, she would be unjustly enriched. Accordingly, and misrepresentations.” The trial court decided that if the respondent were plainly erroneous that such findings could not be reasonably made.” RSA 567– statute: “The findings of fact of the judge of probate are final unless they are so Our standard of review of a probate division decision is determined by

A. Standing

it would be unconscionable for her to retain them “given her bad faith, deceit insurance death benefits to the respondent that “were spousal-based,” and that whom section 1021(f)(1) refers. The respondent’s reliance upon Appeal of A & J

p. 4 jurisdiction provision does not apply because the petitioner is not a person to

[ERISA].” 29 U.S.C. § 1132(e)(1). However, even if it were, the exclusive 1021(f)(1) (Supp. 2012). As we explain below, this is not a “civil action under (3) plan beneficiaries; (4) employers; and (5) labor organizations. 29 U.S.C. §

refers to: (1) the Pension Benefit Guaranty Corporation; (2) plan participants;

U.S.C. § 1144(a) (2006); see Appeal of A & J Beverage Distribution, 163 N.H. at

breadth.’” (Quotation omitted.) Thus, in Ingersoll-Rand Co. v. McClendon, 498 to’ and led to the conclusion that ERISA preemption was ‘conspicuous for its to in § 1021(f)(1) of this title.” 29 U.S.C. § 1132(e)(1) (2006). Section 1021(f)(1)

hereafter relate to any employee benefit plan” described in the statute. 29

(Quotation omitted.)

Court relied heavily upon textual analysis and a dictionary definition of ‘relate the Secretary or by a participant, beneficiary, fiduciary, or any person referred have exclusive jurisdiction of civil actions under this subchapter brought by subsection (a)(1)(B) of this section, the district courts of the United States shall

that ERISA “supersede[s] any and all State laws insofar as they may now or constructive trust claim is preempted by a section of ERISA, which provides benefit plan, . . . if it has a connection with or reference to such a plan.” Alternatively, the respondent contends that the petitioner’s state law U.S. 133, 139 (1990), the Court held that “[a] law ‘relates to’ an employee

C. ERISA Preemption 232, “[e]arly interpretations of this language by the United States Supreme 232. As we explained in Appeal of A & J Beverage Distribution, 163 N.H. at

ERISA’s jurisdictional provision states: “Except for actions under

1. Express Preemption

163 N.H. at 230, 235. petitioner was a plan participant. See Appeal of A & J Beverage Distribution, Beverage Distribution, 163 N.H. 228 (2012), is misplaced. In that case, the

trust. federal courts have exclusive jurisdiction over this petition for a constructive

Security Act of 1974 (ERISA), see 29 U.S.C. §§ 1001 et seq. (2006 & Supp. jurisdiction of federal courts pursuant to the Employee Retirement Income

B. Jurisdiction

constructive trust on the respondent’s share of those proceeds. beneficiary is immaterial, and does not divest him of standing to pursue a

ERISA-covered benefit plan, the respondent is mistaken in her assertion that 2012). Although there is no dispute that the life insurance plan at issue is an

The respondent next asserts that this case falls within the exclusive sufficiently for appellate review. p. 5 to a common law constructive trust, she has failed to brief this argument

complied with ERISA by paying the benefits pursuant to the decedent’s benefit

extent that the respondent contends that ERISA provides a remedy equivalent mechanisms to ERISA’s enforcement regime. Id. at 233; see Hampers v. W.R. choice; and (3) state law causes of action that provide alternative enforcement administration; (2) state laws that bind plan administrators to a particular

documents and instruments governing the plan”); see also Kennedy v. Plan

ERISA plans.” Appeal of A & J Beverage Distribution, 163 N.H. at 232

been paid according to the life insurance policy. Here, the plan administrator

parties to this action have any issue with the employment benefit plan.” To the beneficiary named in the plan). As the trial court here stated: “None of the enforcement regime, and, therefore, was preempted by ERISA. Id. at 234. (holding that an ERISA plan administrator must distribute benefits to the ERISA: (1) state laws that mandate employee benefit structures or their action that provided an alternative enforcement mechanism to ERISA’s Administrator for DuPont Sav. and Investment Plan, 555 U.S. 285, 304 (2009) state law whistleblower complaint, his state law claim constituted a cause of of ERISA-covered benefit plan to discharge her duties “in accordance with the designation form. See 29 U.S.C. § 1104(a)(1)(D) (2006) (directing administrator understood would survive, as well as the nature of the state law’s effect on

a state law action to impose a constructive trust on benefits that have already an action to redress an ERISA violation, we disagree. The petitioner’s action is Although the respondent argues that the petitioner’s action here is also explained in Appeal of A & J Beverage Distribution, 163 N.H. at 232, the employee welfare benefit plan.” (Quotation omitted.) However, as we also claim against death benefits from a life insurance policy pursuant to an that “relate to” ERISA plans such that their preemption furthers the purpose of because ERISA provides a remedy for the conduct alleged in the petitioner’s Appeal of A & J Beverage Distribution, 163 N.H. at 233. We then held that petitioner’s state law whistleblower claim implicated the third category. See the ERISA statute as a guide to the scope of the state law that Congress In Appeal of A & J Beverage Distribution, we concluded that the approach, “preemption issues must be decided by examining the objectives of nuanced approach” to ERISA preemption. (Quotation omitted.) Under the new Grace & Co., Inc., 202 F.3d 44, 51 (1st Cir. 2000).

respondent argues that the petitioner’s claim is preempted because it “is a (quotation omitted). Thus, the Court identified three categories of state laws Relying upon those early interpretations of ERISA preemption, the

Supreme Court has since “abandon[ed] strict textualism in favor of a more p. 6 6

the plan beneficiary. See id. at 299, n.10. distributes the benefits, the decedent’s estate may enforce the waiver against

Court’s decision in Kennedy. Kennedy involved a suit by the estate of a ERISA by ignoring the wife’s purported waiver. Id. at 299-300. The Court insurance proceeds. In so arguing, she relies primarily upon the Supreme The Supreme Court ruled that the plan administrator did not violate its holding.” Estate of Kensinger v. URL Pharma, Inc., p. 6 674 F.3d 131, 135 (3d The Court “emphasized two important policy considerations in explaining

explicitly left open the question of whether, once the plan administrator divest that beneficiary of her right to them. Id. at 304. However, the Court beneficiary named in the plan regardless of any state-law waiver purporting to decided that an ERISA plan administrator must distribute benefits to the

expressly that benefits be neither ‘assigned’ nor ‘alienated.’” Kennedy, 555 U.S. provision will be thwarted if she is not permitted to retain her share of the life “By its terms, the antialienation provision . . . requires a plan to provide proceeds to the wife. Id. at 290. The respondent contends that the policy objectives of the anti-alienation from seeking to prevent her from retaining them. beneficiary. Id. Despite the divorce decree, the plan administrator paid the benefits ‘either before or after receipt by the beneficiary.’” Id. the plan proceeds. Id. However, the husband never removed the wife as plan. Id. at 289. In the divorce decree, the wife purported to waive her right to designated his then-wife as the sole beneficiary of his savings and investment U.S. at 289-90. Before the couple divorced, the participant (husband) had distributing the plan’s proceeds to the participant’s ex-spouse. Kennedy, 555 deceased plan participant against an ERISA plan administrator for wrongfully

distribute the life insurance proceeds to her, but also precluded the petitioner type of language found [in other statutes], which prohibit[ ] attachment of under the plan may not be assigned or alienated.” Id. The respondent argues anti-alienation provision] to reach that far, it could easily have employed the Hoult, 373 F.3d 47, 54 (1st Cir. 2004). “If Congress had intended [ERISA’s participant to recover benefits already paid to a plan beneficiary. See Hoult v. Congressional intent to preclude an action by the estate of a deceased plan at 292. There is nothing in the plain language of the provision to indicate

2. Conflict Preemption

that this provision not only required the plan administrators in this case to

provision provides: “Each pension plan shall provide that benefits provided anti-alienation provision, see 29 U.S.C. § 105 p. 6 6(d)(1) (2006). The anti-alienation constructive trust claim conflicts with, and, therefore, is preempted by, ERISA’s We also reject the respondent’s assertion that the petitioner’s state law the folderol essential under less-certain rules,” Kennedy, 555 U.S. at 301

p. 7 objective was to “ensur[e] that beneficiaries get what’s coming quickly, without Although the Supreme Court also stated that an important ERISA

plan beneficiary’s right to receive the proceeds of an ERISA plan and those that

property rights under it. 7 itself. Kennedy, 555 U.S. at 301 (quotation omitted). Rather, it merely

distributed, the person seeking recovery of [them] is no longer seeking a

fundamental difference between state law causes of action that challenge a

money now held in escrow – not with an insurance policy or not prevent the beneficiary from “get[ting] what’s coming quickly” from the plan constructive trust is ultimately awarded, it will be funded with the being held in escrow . . . . Accordingly, if the remedy of

plan administrators.” Estate of Kensinger, 674 F.3d at 136 (emphasis omitted); (E.D. Mich. 2007). As one commentator has explained: “Once the proceeds are plan.” Brown ex rel. Estate of Sanger v. Wright, 511 F. Supp. 2d 850, 853 seek to challenge a plan beneficiary’s right to keep the proceeds of an ERISA

F.3d at 300 (quotation omitted). As other courts have observed, there is “a prevents her from retaining what she “quickly” received. See Andochick, 709

235 (2013). Imposing a constructive trust on the proceeds in this case does see Andochick v. Byrd, 709 F.3d 296, 299 (4th Cir.), cert. denied, 134 S. Ct. money has already been paid out by the insurer and is currently be sued by the estate for disregarding [the] . . . waiver.” Estate of Kensinger, (quotation omitted), this refers to the “expeditious distribution of funds from

insurance plan. See id. As the trial court aptly observed:

liability – . . . are not implicated here.” Id. at 136. The constructive trust for straightforward administration of plans and the avoidance of potential Contrary to the respondent’s assertions, “[t]hese two concerns – the need had to consider benefit claims from sources extrinsic to plan documents.” Id.;

the transfer of the insurance proceeds to [the respondent]. The disregarding the mandate of ERISA; if it honored the plan documents, it could If imposed, a constructive trust would not interfere with or disrupt

insurance proceeds, does not implicate the administration of the decedent’s life liability.” Estate of Kensinger, 674 F.3d at 135; see Kennedy, 555 U.S. at 301. action brought against the respondent, after she received her share of the life

uniform and efficient plan administration would be undermined if employers 674 F.3d at 135-36. Cir. 2012). “First, it stated that ERISA’s well-established policy favoring

bind: if it honored the waiver, it could be sued by the named beneficiary for the named beneficiary “would have placed the administrator in a hopeless Allowing the estate to sue the plan administrator for disbursing the proceeds to

necessary in order to avoid subjecting plan administrators to potential double see Kennedy, 555 U.S. at 300-01. “Second, [it] explained that its holding was distributed. See id.

p. 8 trust against the respondent’s share of the proceeds, which have already been

the petitioner in this case should not be able to seek to impose a constructive

proceeds.”); Hoult, 373 F.3d at 54-55 (holding that once benefits have been payments have been disbursed to a beneficiary, creditors may encumber the

beneficiary once plan proceeds have been distributed, there is no reason why Kensinger, 674 F.3d at 138. If a creditor may enforce its rights against a payments] held by a plan administrator, the funds are no longer entitled to beneficiary). “The same principle is equally applicable here.” Estate of that even though ERISA prevents a creditor from encumbering [benefit distributed to a beneficiary, a creditor’s rights are enforceable against that

beneficiary designation form); Guidry v. Sheet Metal Workers Nat. Pension benefits have been distributed.” Estate of Kensinger, 674 F.3d at 137. “A that creditors can sue named beneficiaries to recover plan benefits once those along with a majority of the other circuits, has held that once benefits against the respondent “finds further support in a line of federal cases holding DaimlerChrysler Corp. v. Cox, 447 F.3d 967, 974 (6th Cir. 2006) (“This circuit, claims against the funds and the funds’ owners[s].” (quotation omitted)); have been released to the beneficiary’s hands, can creditors and others pursue disbursement suits against ERISA beneficiaries in similar contexts. See 558 F.3d 204, 211 (2d Cir. 2009) (“Only once the proceeds of the pension plan distribution to beneficiary). But see Staelens ex rel. Estate of Staelens v. beneficiary.” Id.; see Kickham Hanley PC v. Kodak Retirement Income Plan, Federal courts have held that ERISA does not preempt post- ERISA’s protections against the creditor’s claims once they are paid to the trust action.

number of circuits,” including the First Circuit Court of Appeals, “have held

directly against beneficiary to recover proceeds paid to her pursuant to

That the petitioner should be able to bring a constructive trust action

Staelens, 677 F. Supp. 2d 499, 508 (D. Mass. 2010).

constructive trust could be imposed on employee welfare plan benefits after Areas Pension v. Howell, 227 F.3d 672, 678-79 (6th Cir. 2000) (holding that proceeds, we conclude that ERISA does not bar the petitioner’s constructive of trust on distributed proceeds from ERISA plan); Central States, SE & SW Fund, 39 F.3d 1078, 1080-83 (10th Cir. 1994) (affirming, en banc, imposition

132 (in case of first impression, court decides that estate may bring action has the continuing right to retain the proceeds.” Comment, When Happily Ever appellate opinion to address the question”); Estate of Kensinger, 674 F.3d at determination of the beneficiary under the plan, but is instead challenging who Andochick, 709 F.3d at 301 (“adopt[ing] the same view as every published

because the respondent has already received her share of the life insurance ERISA to Benefit the Right Person, 52 S. Tex. L. Rev. 127, 133 (2010). Here, After is Not Ever After, After All: Rectifying the Plan Documents Rule Under p. 9 9

prove what we required of the plaintiffs in Patey v. Peaslee, 101 N.H. 26 (1 p. 9 957). The respondent argues that, to recover in this case, the petitioner had to

act in [his] interest.” Clooney v. Clooney, 118 N.H. 754, 757 (1 p. 9 978).

proceeds. See id. “The basic confidential relationship arises out of the family and that she would be unjustly enriched were she allowed to retain the proceeds at issue, that she and the decedent had a confidential relationship,

that the First Circuit itself, pre-Kennedy, appears to have treated distributed D. Constructive Trust In Patey, the plaintiffs alleged that “knowing that the decedent was possessed deemed served by a uniform administrative scheme,” it also “acknowledge[d]

relationship, where one party is justified in believing that the other party will

requirements for imposing a constructive trust.” In re Estate of McIntosh, 146

petitioner had to prove that the respondent possessed the life insurance Walsh v. Young, 13 p. 9 9 N.H. 693, 695 (1995). To prevail in the instant case, the demonstrate by clear and convincing evidence that such action is warranted. To support a claim for a constructive trust, the moving party must “would appear to go against the various interests which the Supreme Court. . . ERISA is no longer implicated.”). distributed to the designated beneficiary in accordance with plan documents, be imposed whenever necessary to satisfy the demand of justice.” Id. Inc., 117 N.H. 813, 816 (1977) (quotation omitted). “A constructive trust will which the conscience of equity finds expression.” Milne v. Burlington Homes, N.H. 474, 478 (2001). “[A] constructive trust is merely the formula through grounds related to the specificity of the contract language.” Estate of estate could sue the ex-wife directly and instead based its decision on narrow constructive trust” to the facts of this case. We disagree. “[T]here are no rigid The respondent next argues that the trial court “misapplied the law of

brought against a plan beneficiary after plan proceeds have been distributed 2013 WL 5508246, at *3 (D. Mass. Sept. 27, 2013) (“After benefits have been Kensinger, 674 F.3d at 13 p. 9 9; see Teves v. Teves, Civil Action No. 13-11162-FDS,

of the circuit in which it sat, the court avoided the question of whether the Hoult, 373 F.3d at 54. Accordingly, “[r]ecognizing what appeared to be the law funds differently” from funds that had not yet been distributed. Id. at 508; see Although the respondent relies upon Staelens to support her argument,

5 p. 10 10-11. Though the court opined, in dicta, that allowing lawsuits to be decision on the specific language of the couple’s separation agreement. Id. at proceeds. Staelens, 677 F. Supp. 2d at 508-11. However, the court based its decedent’s ex-wife to enforce her purported waiver of her entitlement to plan at 138. In Staelens, the court held that the decedent’s estate could not sue the claims such as the respondent’s claim here. See Estate of Kensinger, 674 F.3d we agree with the Third Circuit Court of Appeals that Staelens is inapposite to him of her concurrent relationship with Tamara. For instance, Pastor Wallace

Walker v. Walker, 158 N.H. 602, 608 (2009). We accord considerable weight to

fraudulently induced the decedent because she married him without telling

disposition of it.” Id. We held that if the plaintiffs met this burden of proof, the

unless they are lacking in evidentiary support or tainted by error of law. claims as a matter of law and uphold the findings and rulings of the trial court support the trial court’s imposition of a constructive trust. We review such The trial court found, and the record supports its finding, that the respondent The respondent next asserts that there was insufficient evidence to conclude that it supports the trial court’s imposition of a constructive trust. proceeds. Id. (quotation and ellipses omitted). Viewing the evidence in the light most favorable to the petitioner, we [respondent] to retain and enjoy [her] beneficial interest” in the life insurance upon whether the circumstances rendered it unconscionable “for the petitioner. Id. given testimony. Id. We view the evidence in the light most favorable to the property may be obtained through bad faith and unconscientious acts.” Milne, the trial court’s judgments on the credibility of witnesses and the weight to be intestacy; or if she was competent, that she would have made no other

marriage solely to obtain the decedent’s property.” Id. at 30. The plaintiffs also

In Patey, we did not set forth a “rule of law” to be applied generally.

which he obtained title to the property was fair, and taken in good faith.” Id. 117 N.H. at 816. Accordingly, in this case, the trial court properly focused Patey, p. 10 101 N.H. at 28. The plaintiffs further alleged that in marrying the a constructive trust are numberless, as numberless as the modes by which into a marriage with her, intending at her death to marry another woman . . . .” property, so that but for the marriage it would have gone to the plaintiffs by Hill, 120 N.H. 547, 551 (1980). “The specific instances in which equity imposes that restitution will be compelled to prevent unjust enrichment.” Lamkin v. equitable principle of imposing a constructive trust rests upon the doctrine “either by concealment of his purpose or by undue influence, to procure the the allegations in their complaint. “The Patey case recognized . . . that the Rather, we set forth what was required of the plaintiffs in that case because of

burden of proof would then shift to the defendant “to show that the action by

physical disabilities from which she would shortly die, the defendant entered had to “prove that the decedent was thereafter incompetent to dispose of her of property of substantial value, and was of unsound mind and suffering from

defendant occupied a dominant position” and that he used that position, defendant and the decedent had a confidential relationship “in which the allegations, we held that, to recover, the plaintiffs had to show that the which was to become a beneficiary of her estate.” Id. In light of those decedent, “the defendant concealed from her his sole purpose in doing so, constructive trust to prevent the respondent from being unjustly enriched. p. 11 findings, we uphold its determination that it was necessary to impose a

unjust enrichment would result.” Because the record supports the trial court’s

misconduct by retaining her beneficial share of the life insurance proceeds, an convincing evidence that were the [r]espondent allowed to profit from her faith, deceit and misrepresentations.” The trial court found “by clear and

marriage) into which the decedent entered because of the respondent’s “bad

that the decedent and the respondent had a confidential relationship (a Accordingly, the trial court found, and the record supports its finding,

was pending.

beneficiary form because he was told that he could not do so while the divorce

The sister also testified that she believed that the decedent did not change the her that he now believed that the respondent was “already married” to Tamara. testified that in 2008, while the divorce action was pending, the decedent told

but also to designate her as a beneficiary of his life insurance policy. The sister

respondent’s fraud and deceit, the decedent was not only induced to marry her, The record also supports the trial court’s finding that as a result of the

had fathered her daughter.

had had a vasectomy, and that the respondent convinced the decedent that he believed that the respondent’s daughter was his child, despite the fact that he the respondent’s daughter. The decedent’s sister testified that the decedent

the decedent into believing that he was [the] only possible biological father” of

concealing her relationship with Tamara, the respondent “was able to deceive The trial court also found, and the record supports its finding, that by

testimony “was evasive, nonresponsive and not credible.”

or intimately involved with, . . . Tamara,” the trial court found that her

trial court noted, the respondent “steadfastly denied that she was married to, the instant proceeding, he had never heard of the decedent. Although, as the Tamara, he never doubted that the respondent was Tamara’s wife and, until

husband and wife. Pastor Horton testified that throughout his friendship with

numerous individuals who confirmed that Tamara and the respondent were England District Council for the Assembly of God church in 2005, he contacted testified that before he provided a reference for Tamara to the Northern New

respondent participated with the child as her parents. Pastor Horton further

testified that he presided at a “dedication ceremony” in which Tamara and the decedent was known to the Pastor as Tamara’s child. Indeed, Pastor Horton or Hellen Tamara. The child whom the respondent claims was fathered by the

respondent, whom Pastor Horton knew as Tamara’s wife, then known as Ellen Elliot Horton testified that, in approximately 2002, he first met Tamara and the that they do not warrant further discussion. Vogel v. Vogel, 137 N.H. 321, 322

p. 12 We have reviewed the respondent’s remaining arguments and conclude

[the respondent],” and remand this issue to the trial court for resolution. decline to decide, in the first instance, the identity of “the person wronged by

be the person wronged by [the respondent], as determined by the court.” We

a constructive trust were to be imposed, the beneficiary of these assets would

F. Ripeness

the trial court explained when it denied the respondent’s motion to dismiss, “[i]f we have upheld its imposition of, a constructive trust on them. However, as Affirmed and remanded. receive the life insurance proceeds now that the trial court has imposed, and

ripe for adjudication because it is not clear that the petitioner will ultimately

properly before us. attorney’s fees, he did not file a cross-appeal, and, accordingly, this issue is not Although the petitioner argues that the trial court should have awarded him DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

(1993). We briefly address the respondent’s argument that the instant case is not

court did not err by denying her request for prevailing party attorney’s fees.

E. Attorney’s Fees

the probate division and has not prevailed in this appeal. Accordingly, the trial award her prevailing party attorney’s fees. The respondent did not prevail in The respondent next asserts that the trial court erred when it declined to