2014-0133, In the Matter of Robert Kempton and Peggy Kempton

annually, and the respondent was a 57 - year - old inmate, incarcerat ed in a petitioner was a 56 - year - old airline pilot, earning approximately $160,000 The pertinent facts are as follows. When the parties divorced, the

by telephone.” We affirm. continuance and “forc[ing] her to appear at the parties’ two[-]day divorce trial violated her constitutional right to due process by denying her request for a award and property distribution. In addition, she argues that the trial court cross - appeal, the respondent likewise challenges the trial court ’ s alimony challenges the trial court ’ s alimony award and property distribution. In her the trial court erred by denying his request for a fault - based divorce. He also by the Circuit Court (Introcaso, J.). In his appeal, the petitioner argues that respondent, Peggy Kempton, cross - appeals, their final divorce decree entered DALIANIS, C. J. The petitioner, Robert Kempton, appeals, and the

Connor on the brief and orally), for the respondent. Primmer Piper Eggleston & Cramer, PC, of Manchester (Doreen F.

William Aivalikles, of Nashua, by brief and orally, for the p etitioner.

No. 2014 - 133 9 Circuit C ourt – Nashua Family Division th

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

amount of $1,338,791. To secure this d ebt, the museum attached the parties ’ state prison. She was also ordered to pay restitution to the museum in the charges and was sentenced to serve three - to - five years in a Massachusetts In June p. 2 2010, the respondent pleaded guilty to all of the criminal

documents. allegedly, without his consent, electronically signed his name to loan Moreover, the respondent established credit in the petitioner ’ s name and, respondent’s credit card debt adversely affected the petitioner’s credit score. credit card debt. As a result of a mistake made by the credi t bureaus, the petitioner paid $4 p. 2 2,353 of the approximately $150,000 the respondent owed in After the respondent was indicted, but before she was convicted, the

file for bankruptcy. conduct, of which he was unaware, he was “wiped ou t” financially and had to conduct. The petitioner testified that, as a result of the respondent’s criminal approximately $3 p. 2 26,000 as a direct result of the respondent’s criminal attorney the remaining $60,000. The petitioner estimates that he has spent money and obtained a home equity loan on the Hollis property to pay the the attorney a total of $100,000. The petitioner used some of his retirement home, the Georgia real estate, and his retirement accounts in return for paying parties entered into a post nuptial agreement awarding the petitioner the Holl is 2008, the attorney asked for an additional $60,000. In August 2008, the children, initially paying him $40,000 for his services. In approximately July The parties hired an attorney to represent the respondent and the ir

museum rental property. cards. As a result of the indictments, the respondent was evicted from the as defendants in a civil suit the museum brought for misusing museum credit larceny. In August p. 2 2010, s he and the part ies’ adult children were also named June 2009, the respondent was indicted on, among other charges, 14 counts of she left her employment after having embezzl ed approximately $1.3 million. In The responde nt continued to work at the museum until early 2008, when

approximately p. 2 2003, the parties purchased land in Georgia. respondent and the children spent their weekends with him there. In attended Massachusetts schools, the petitioner lived in Hollis and the rented home on the museum property in Massachusetts and the children next ten years, however, while the respondent and the children lived in a purchased a home in Hollis because they anticipated moving there. For the respondent was hired as a n executive by Fruitlands Museu m. In 1998, they In 1997, the parties moved from Georgia to Harvard, Massachusetts, wher e the The parties were married in 1986. Their three children are now adults.

larceny and credit card fraud. Massachusetts prison after having pleaded guilty to numerous counts of p. 3 3

again argued that th e trial court had deprived her of due process by denying trial court to file an interlocutory appeal from the court ’ s ruling in which she Thereafter, the respondent filed a motion req uesting permission from the

hear the evidence in this matter and testi fy on her own behalf.” the assistance of her counsel, make arrangements to appear telephonically to that “if the [r]espondent chooses to be present at her hearing, she may, with Massachusetts to produ ce [the respondent] for trial.” The trial court explained The trial court stated that it had “no authority to order the Commonwealth of that she had counsel and had appeared telephonically in prior proceedings. The trial court denied the respondent ’ s motion to reconsider, observing

and to “get to see and hear everything that is going on.” continuance deprived her of her “due process” rig ht to “get to see [her] accuser” respondent used the phrase “due process,” arguing that denying her a It was not un til the heari ng on the motion to reconsider that the

respondent did not refer to a constitutional provision or doctrine. would deny her “a fair and equitable hearing in her divorce matter.” Again, the understand and hear everything that will proceed.” She asserted that this hearing” and would be “denied her right to appear before the Court and to request for a continuance, she would “not be able to attend her own divorce of state.” The respondent contended that unless the trial court granted her prison system will not allow her to make arrangements to attend a hearing out able to appear or to make arrangements regarding same as the Massachusetts The respondent moved for reconsideration, asserting that she was “not

in a constitutional provision or doctrine. “make appropriate arrangements.” The respondent did not ground her motion respondent ’ s motion, stating that if she “wish[ed] to ‘ appear, ’” she should impossible for h er to represent herself properly.” The trial court denied the her inability to “be present in person” at the final hearing “would make it released from prison. Although the respondent had counsel, she asserted that continuance until “after December 17, 201 p. 3 3,” when she was scheduled to be place in October 2013. In August 2013, the respondent moved for a The final hearing on the parties ’ divorce petitions was scheduled to take

a spouse’s imprisonment for more than one year. See RSA 458:7, IV (2004). amended his petit ion to includ e, among other fault grounds, the fault ground of petition alleging certain fault grounds for divorce. In response, the petitioner irreconcilable differences. In September 2011, the respondent filed a cross - In July 2011, the petitioner filed a petition for divorce based upon

the Hollis home “went into foreclosure” in May 201 p. 3 3. result of the respondent ’ s unpaid credit card debt. The petitioner testified that Hollis home. The Hollis home was also attached by a credit card company as a p. 4 4

the trial court deprived her of her consti tutional right to due process. This continuance and “forc[ing] her to appear” at the merits hearing “by telephone,” We first consider the respondent ’ s contention that, by denying her a

I. Due Process

reasonably be made on the evide nce prese nted, they will stand. Id. the trial c ourt ’ s discretionary judgment. Id. If the trial court ’ s findings can only to determine whether it contains an objective basis upon which to sustain unsustainable exercise of discretion. Id. This means that we review the record 167 N.H. 1, 3 (201 p. 4 4). We will not overturn a trial court ’ s rulings absent an in managing the proceedings before it. In the Matter of Spenard & Spenard, A trial court has broad discretion in fashioning a final divorce decree and

appeal. This appeal and cross - appeal followed. filed motions for reconsideration, which were denied in all parts relevant to this Hollis home and awarded the respondent the Georgia real estate. Both parties and the date of the petition for div orce). The court awarded the petitioner the benefit pension plan benefits (accrued between the date of the parties ’ marriage respondent 1/3 of the petitioner ’ s individual retirement account and defined parties ’ retiremen t assets to be equitable, awarding the petitioner 2/3 and the whichever occurs first. The court determined an unequal apportionment of the $2,850 in monthly alimony for 96 months or until her remarriage or death, p. 4 458:19 (Supp. 2014), the court ordered the petitioner to pay the respondent prove d the alleged fault grounds. Upon considering the factors set for th in RSA on the ground s of irreconcilable differences, after concluding that neither had Following the merits hearing, the trial court granted the parties a divorce

respondent was represented by counsel and participated by telephone. Accordingly, the final hearing took p lace, as originally scheduled. The that it had already granted the respondent’s motion to appear telephonically. her maximum release date was not until “well into 201 p. 4 4.” The court also noted paroled in mid - December 2013, she had been denied parole in the past, and although the respondent ’ s attorney represented that the respondent would be petition in July 2011, more than two years earlier. The court observed that, divorce hearing further would not be equitable to the petitioner, who filed his routinely appeared telephonically.” The court explained that to delay the counsel[,] . . . has participated in all phases of the[ ] proceedings[,] and has “is currently incarcerated in the State of Massachusetts[,]. . . is represented by due process right to be physically present at these proceedings,” given that she interlocutory appeal b ecause it disagreed with her assertion that “[she] has a The trial court denied the respondent ’ s motion for permission to file an

telephonically at the merits hearing, which the trial court granted. constitutional provision. See Sup. Ct. R. 8. She also filed a motion to appear her motion for a continuance, although she did not cite a specific p. 5 5

premise that she has a federal due process right to appear personally at her The respondent’s due process argument proceeds from the mistaken

we confine our analysis to the Federal Constitu tion. preserved when she failed to raise this claim in the criminal proceeding). Thus, to recover attorney’s fees and costs incurred in criminal proceeding was not (holding that appellant’s argum ent in interlocutory appeal that she was entitled claim for our review. Cf. Cross v. Brown, 148 N.H. 48 p. 5 5, 485, 487 - 88 (2002) interlocutory appeal was also insufficient to preserve a state constitutional res pondent’s due process argument in her motion for permission to file an the Matter of Hampers & Hampers, 154 N.H. 275, 291 (2006). The was insufficient to preserve a state constitutional claim for our review. See In hearing on her motion to reconsider the denial of her motion for a continuance 628, 632 (1986). The respondent’s mere refere nce to “due process” at the provision of the State Constitution in her brief. State v. Dellorfano, 128 N.H. respondent had to: (1) raise it in the trial court; and (2) specifically invoke a 151 N.H. 248, 250 (2004). To preserve a state constitutional claim, the argument under the State Constitution. See Bean v. Red Oak Prop. Mgmt., Constitution only because she has failed to demonstrate that she preserved an We consider the respondent ’s due process argument under the Federal

Matter of Sawyer & Sawyer, 161 N.H. 11, 18 (2010) (quotation omitted). that the decision [is] clearly unreasonable to the prejudice of [her] case.” In the exercise of discretion, id., and the party seeking the continuance “demonstrates We will not overturn that decision unless it constitutes an unsustaina ble sound discretion of the trial court. State v. Addison, 160 N.H. 792, 79 p. 5 5 (2010). The decision to grant or deny a motion for a continuance is within the

of the respondent’s request for a continuance. requested that relief. Therefore, we limit our analysis to the trial court’s denial participate in the merits hearing by telephone, we observe that she specifically respondent now argues that the trial court erred by only allowing her to effectively consult during the hearing.” Similarly, to the extent that the would be inadequate” because it “would not allow [her] and her attorney to “[v]ideo conferencing is not an option” and that “[e]ven if it were an option, it permission to file an interlocutory appeal, the respondent told the court that videoconferenc e. In her response to the petitioner’s objection to her motion for specifically informed the trial court that she did not want to appear through a participate in the merits hearing by way of video conferencing. Indeed, she not preserved this argument for our review. The respondent never requested to erred by not allowing her to proceed by videoconferencing, the respondent has following observations. First, t o the extent that she argues that the trial court Before addressing the meri ts of the respondent’s argument, we make the

Matter of Kalil & Buzderewicz, 1 p. 5 5 p. 6 6 N.H. 254, 255 (2007). contention raises a question of law, which we review de novo. See In the 6

any sta ge of the judicial proceedings” (quotation omitted)); Michaud v. that prisoners who bring civil actions “have no right to be personally present at 199 p. 6 6); see, e.g., In re Wilkinson, 137 F.3d 911, 914 (6th Cir. 1998) (holding F. Supp. 171, 175 (E.D. Pa. 1995), aff’d without opinion, 85 F.3d 611 (3d Cir. constitutional right to be present in their own civil actions.” Cook v. Boyd, 881 courts, “[i]t is well established that [they] do not have an absolute Even when inmates have a federal constitutional right of access to

grounds by McCleskey v. Zant, 499 U.S. 4 p. 6 67 (1991). 266, 285 – 86 (1948) (quotation and citation omitted), overruled on oth er to plead and manage their own causes personally.” Price v. Johnston, 334 U.S. otherwise unqualified right. . . to parties in all the courts of the United States withdrawal or limitation of many privileges and rights,” including “the Court has explained, “L awful incarceration brings about the necessary consequences of conviction and incarceration.” Lewis, 518 U.S. at 355. As the capacity is simp ly one of the incidental (and perfectly constitutional) did, in fact, have such a due process right). “Impairment of any other litigating small - claims action that inmate may have had, without deciding that inmate did not violate any federal due process right of access to courts to litigate his 132 (2014) (concluding that conducting bench trial by way of videoconferencing unrelated to conditions of confinement). But cf. Vincent v. MacLean, 166 N.H. constitutional right of access to courts to litigate a personal injury claim C ourt, 318 F.3d 1156, 1159 - 60 (9th Cir. 2003) (explaining that prisoner has no and conditions of her confinement); Simmons v. Sacramento C ounty Superior support action because such an action was un related to her criminal sentence that inmate’s constitutional right of access to courts d id not extend to child 355; see also Ball v. Hartman, 396 F. App’x 823, 825 (3d Cir. 2010) (holding 432 - JL, 2010 WL 477427 4, at *4 (D.N.H. Aug. 20, 2010); see Lewis, 518 U.S. at through nonfr ivolous civil rights actions.” Feeley v. New Hampshire, No. 09 - cv file habeas petitions, or to challenge the conditions of their confinement criminal cases, criminal convictions and sentences directly or collaterally, to courts that affords them access to the tools necessary to challenge their Federal Constitution, “[p]risoners have a constitutional right of access to the 8 21 - 2 2 (1977); see also Lewis v. Casey, 518 U.S. 343, 355 (1996). Under the but only under certain circumstances. See Bounds v. Smith, 430 U.S. 817, The constitutional right of acces s to co urts extends to prison inmates,

to redress grievances”). either as defendants hoping to protect their property or as plaintiffs attempting Due Process Clause protects “civil litigants who seek recourse in the courts, Zimmerman Brush Co., 455 U.S. 422, 429 (1982) (explaining that the Federal process. See Boddie v. Connecticut, 401 U.S. 3 p. 7 71 (1971); see also Logan v. States Supreme Court has held that access to courts is an element of d ue property, without due process of law.” U.S. CONST. amend. XIV. The United reads, in part, that a state shall not “deprive any person of life, liberty, or divorce hearing. The Fourteenth Amendment to the United States Constitution 7

Holloway v. Dobbs, p. 7 715 F.2d 390, 392 (8th Cir. 1983) (per curiam) (holding denied ability to cross - examine witnesses testifying against him); see also prohibited from offering testimony through videotape or other recorded form or custody hearing not denied due process when represented by counsel and not 881 F. Supp. at 175 - 76 (inmate prevented from participating by telephone in witnesses in the trial, the Federal Du e Process Clause is satisfied. See Cook, to appear through counsel and to present evide nce and cross - examine Generally speaking, in a case such as this one, if an inmate has an opportunity 2218 (JFB) (ARL), 2009 WL 5062119, at * 12 (E.D.N.Y. Dec. 16, 2009). particular means of access be made available.” MacKay v. Crews, No. 09 - CV - “Due process requires reasonable access to courts but not that a

motion. the trial court did not unsustainably exercise its discretion by denying that effect, a motion to be physically p resent at the merits hearing, we conclude that and even if we assume, without deciding, that her motion to continue, was, in federal constitutional right to access the court to litigate her divorce action, Here, e ven if we assume, without deciding, that the respondent had a

presence at trial. Massachusetts, the New Hampshire trial court had no authority to compel her Moreover, on appeal, she agrees that, because she was incarcerated in proceedings wh en parent never requested writ to compel his attendance). incarcerated parent’s motion s to stay termination of parental rights (1998) (trial court did not unsustainably exercise its discretion by denying the respondent never filed such a writ. See In re Baby K., 143 N.H. 201, 204 see Latiolais v. Whit ley, 93 F.3d 205, 208 (5th Cir. 1996). In the instant case, present in court.” Leeper v. Leeper, 21 So. 3d 1006, 1010 (La. Ct. App. 2009); habeas corpus ad testificandum is the means for such individuals to be 03588 - PSG, 2013 WL 6320849, at * 3 (N.D. Cal. Dec. 4, 2013). “[A] writ of discretion of the trial court. Velasquez v. City of Santa Clara, No. 5: 11 - cv should appear personally in court for the trial of the action rests in the sound Rather, the determin ation of whether a prisoner - party in a civil action

carry on the civil proceedings which he initiates”). to the courts,” it does not “grant a prisoner the right to attend court in order to (explaining that although the Federal Due Process Clause “guarantee[s] access Matter of Warden of Wisconsin State Prison, 541 F.2d 1 p. 7 77, 1 p. 8 80 (7th Cir. 1976) inmate has no absolute right to be present at the trial of his civil action); Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (holding that an cons titutional right to be present during the district court civil proceedings); 1147, 1150 n.6 (8th Cir. 1990) (rejecting inmates’ argument that they had a forego the right to appear personally in civil lawsuits”); Fruit v. Norris, 905 F.2d the prisoner and t hat “[u]nder some circumstances, a prisoner may be forced to discretion in allowing prisoners to attend civil court proceedings initiated by Michaud, 932 F.2d 77, 81 (1st Cir. 1991) (finding that courts may exercise 8

her “counsel examined witnesses and presented evidence at the hearing”). participate telephonically in, her termination of parental rights hearing when deprived of due process even though she was not present at, and did not N.W.2d at 610 (court concludes that parent incarcerated out of state was not it denied her motion for a continuance. See In re Inter est of Azia B., 626 court deprived her of that right or unsustainably exercised its discretion when federal constitutional right to access courts, we cannot conclude that the trial circumstances, even assuming that this case implicate s the respondent’s consult w i th his counsel in the same way” (footnote omitted)). Given these proceeding when incarcerated parent “testified by telephone and was able to App. 1990) (no deprivation of due process in termination of parental rights declined. See State ex rel Juv. Dept. v. Stevens, 7 p. 8 86 P.2d 1296, 1299 (Or. Ct. was asked whether she wanted to consult with her counsel privately, but she cross - examination of the respondent. On a fourth occasion, th e respondent cross - examinatio n of the petitioner, and before opposing counsel began his before any evidence was presented, before the respondent’s counsel began her allow the respondent to confer with h er counsel privately. The court did this occasions during the two - day hearing, the trial court cleared the courtroom to and had opportunities to confer with her attorney during the hearing. On three opposing counsel). Additionally, t he respondent testified on her own behalf vigorously cross - examined the petitioner (the only witness presented by evidence on her behalf, including the testimony of a hostile witness, and In this case, the respondent was represented by counsel, who presented

appear by deposition or o ther di scovery technique”). are satisfied if they are represented by counsel and have an opportunity to 1997) (concluding, in civil case, that “[p]risoners’ due process rights generally the pro ceeding); Matter of Adoption of J.M.H., 564 N.W.2d 623, 627 (N.D. when she was incarcerated in another state and was represented by counsel at request to appear telephonically in termination of parental rights proceeding process rights not violated by court’s denial of request for a continuance and Interest of Azia B., 626 N.W.2d 602, 60 p. 8 8 - 10 (Neb. Ct. App. 2001) (mother’s due rights by allowing him to participate in divorce hearing by telephone); In re Apr. 10, 2008) (holding that trial court did not violate prisoner’s due process Renusch v. Renusch, No. 275669, 2008 WL 1062104, at * 2 (Mich. Ct. App. behalf nor denied the opportunity to cross - examine witnesses.” Id.; see, e.g., was neither denied an opportunity to prese nt testimony in some form on his hearing are not violated where the prisoner was represented by counsel and rights of a prisoner who has been prohibited from participating in a [civil] (citing cases). “State courts . . . have repeatedly held that the due process S tate court decisions are in accord. See Cook, 881 F. Supp. at 175

court was not impaired). right to access courts w hen represented b y attorney and attorney’ s ac cess to that prisoner failed to state a claim that he was deprived of his co nstitutional p. 9 9

object to the admission into evidence of any of opposing counsel’s exhibits. and her counsel did not object to that representation. Nor did her counsel document that she could not locate, he represented what the document said, occasions when opposing counsel questioned th e respondent about a specific not deliver them to the respondent. The record shows that, on the handful of most of his exhibits to the respondent’s attorney before trial, her attorney did counsel. The record also es tablishes that, although opposing counsel delivered and that her attorney’s exhibits overlapped with some of those of opposing her when she testified as well as two bankers’ boxes full of other documents, de monstrates that the respondent had all of her own attorney’s exhibits with exhibits only as a means of refreshing a witness’s recollection. The record With regard to exhibits, the trial court allowed the attorneys to use

for the respondent. The record establishes that testimony and arguments were routinely repeated not, in this case, deprive her of her federal consti tutional right to due process. review some of the documents about which she was questioned, th o se flaws did case was flawed because she was unable to hear at times and was unable to Although the respondent argues that the t elephonic process u sed in this

represent the parent. Baby K., 143 N.H. at 207. advocate and a conduit,” which may have affected the attorney’s ability to telephon ic connection to his trial counsel, requiring his attorney “to serve as an opposing counsel. By contrast, i n Baby K., the incarcerated parent had only a communicate directly with the court, with the witnesses, and with her own and respondent had a telepho nic connect ion to the courtroom, and was able to in Baby K., was able to participate meaningfu lly in the hearing. Here, the used in Baby K.. The respondent in this case, unlike the incarcerated parent Moreover, the telephonic process used in this case was superior to that

Douglas, 143 N.H. 41 p. 9 9, 423 (1999). opportunity to be heard. See Boddie, 401 U.S. at 37 7 - 79; see also Douglas v. only to the basic due process protections of notice and a meaningful N.H. at 205. By contrast, in a divorce proceeding, the respondent is entitled that case involved a termin ation of parental rights proceeding. Baby K., 143 parent in Baby K. was entitled to heightened due process protections because equivalent to those of the incarcerated parent in Baby K. The incarcerated Second, we disagree with the respondent that her due process rights are the State Constitution, we need not reach his federal constitutional claim). N.H. 226, 237 (1983) (concluding that because the defendant prevailed under Constitution. See Baby K., 143 N.H. at 203 - 04, 207; see also State v. Ball, 124 Constitution, while we are deciding the instan t case under the Federal 143 N.H. 201, we disagree. First, we decided Baby K. under the State Although the respondent argues that this case is governed by Baby K., p. 10 10

be unable to “reconcile [their] marital issues.” support the inference that the respondent ’ s incarceration caused the parties to respondent’s incarceration. The petitioner also argues that additional facts that these facts do not indicate that the marriage continued despite the argues that the trial court drew the wro ng inference from them. He contends The petitioner does not challenge these factual findings. Rather, he

and provided her with financial support. while the respondent was imprisoned, the petitioner visited her, sent her cards, caused the. . . breakdown of the parties ’ marriage.” Th e court observed that, determined that there was insufficient evidence to establi sh that “such fault petitioner ’ s request for a fault - based divorce on this ground, in part, because it actual imprisonment under such con viction.” The trial court denied the district, of a crime punishable with imprisonment for more than one year and the innocent party for . . . [c] onviction of either party, in any state or federal RSA 458:7, IV provides that “[a] divorce. . . shall be decreed in favor of

erroneous. Hampers, 154 N.H. at 279. factual findings unless the evidence does not support them or they are legally 661 (1990); see also Hampers, 154 N.H. at 279. We will uphold the trial court ’ s a question of fact for the trial court. See Yergeau v. Yergeau, 132 N.H. 659, for more than one year. See RSA 458:7, IV. The cause of marital breakdown is request for a divorce on the fault ground that the respondent was incarcerated We next consider whether the trial court erred by denying the petitioner’s

II. Fault Grounds for Divorce

Cir. 2001). States, 509 U.S. 602, 608 n.4 (1993); Emile v. I.N.S., 244 F.3d 183, 189 (1st right of confrontation that applies to civil proceedings. See Austin v. United witness] when they testified,” we disagree. There is no federal constitutional constitutionally - protected right to “face her husband and [another hostile To the extent that the respondent contends that she had a

credibility”). marginal risk that the referee wo uld be misled in evaluating the respondent’s respondent’s demeanor to its auditory component . . . entail[ed] only the most 812 (Conn. 1982) (concluding that “limiting the opportunity to assess the constitut ional right to due process. Cf. In re Juvenile Appeal, 446 A.2d 808, ability to assess the respondent’s credibility deprived her of a federal by listening to her. We cannot say that this limitation upon the trial court’s respondent’s credibility by observing her, the court could assess her credibility regret for her crime.” Although the trial court could not assess the because it impeded the trial court’s ability to “observe [her] demeanor and The respondent further contends that the telephonic process was flawed p. 11 11

that “we defer to the trial court ’ s judgment on such issues as resolving conflict s his invitation to reweigh the evidence. See Cook, 149 N.H. at 780 (explaining failing to afford proper weight to the parties ’ post nuptial agreement, we decline To the extent that the petitioner argue s that the trial court erred by

contended that the postnuptial agreement was un enforceable. respondent correctly observes, in the trial court, the petitioner specifically respondent that he did not preserve this argument for our review. As the that he argues that the postnuptial agreement is enforceable, we agree with th e marital estate according to the parties’ postnuptial agreement. To the extent The petitioner argues that the trial court erred by failing to divide the 285. the trial court ’ s decision absent an unsustainable exercise of d iscretion. Id. at property distribution in fashioning a final divorce decree, we will not overturn Because we afford trial courts broad discretion in determining matters of enumerated factors or give them equal weight. Hampers, 154 N.H. at 286. the parties ’ assets. RSA 458:16 - a, II(o). The court need not consider all of the may consider “[a]ny other factor [it] deems relevant” in equ itably distributing prop erty contributed by each party. RSA 458:16 - a, II. Additionally, the court parties, the contribution of each party during the marriage, and the value of growth or diminution in value of property owned b y either or both of the needs, t he actions of either party during the marriage which contributed to the 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 as

Id. at 286 (quotation omitted). deemed “jus t” based upon the evidence presente d and the equities of the case. property is not to be divided by some mechanical formula but in a manner must make the distribution as equal as possible. Id. However, marital equitable. Hampers, 154 N.H. at 285. Absent special circumstances, the court (2004) creates a presumption that an equal distribution of marital property is We next consider the trial court ’ s property distribution. RSA 458:16 - a, II

III. Property Distribution

marriage. the resp ondent’s i ncarceration did not cause the b reakdown of the parties ’ based upon the same evidence, we uphold the trial court’s determination that reasonable person could have reached the same decision as did the trial court Paquette, 132 N.H. 415, 419 (1989). Here, because we conclude that a (2003). We will not substitute our judgment for that of the trial court. Brent v. trial court based upon the same evidence. Cook v. Sullivan, 149 N.H. 774, 780 but whether a reasonable person could have reached the same decision as the standard of review is not whether we would rule differently than the trial court, we cannot say that the trial court erred by drawing a different inference. Our Although the petitioner argues one reasonable inference from the facts, p. 12 12

(2008), in which we held: trial court acted contrary to In the Matter of Martel & Martel, 157 N.H. 53, 59 embezz lement. By failing to consider these alleged facts, she contends, the respond ent must pay restitution and income t axes associated with the and the petitioner’s “post - divorce stature” as well as the fact that the contends, similarly “failed to consider [her] motives behind [the] embezzlement” aga inst [the petitioner’s] embezzle ment - related expenses.” The court, she “failed to consider the positive impact of [her] embezzleme nt of $1.3 million, parties’ retirement assets because, when the trial court relied upon it, it this written finding was insufficient to justify the unequal distribution of the substantially diminished the marital estate.” The respondent contends that retirement assets] was its finding that [her] conduct during the marriage had [trial court] in support of its deviation from an equal distribution [of the parties’ The respondent also a rgues that “[t]he only written finding cited by the

is insufficient to warrant appellate review). regarding adverse rulings by the trial court, without developed legal argument, v. Bader, 154 N.H. 75, 78 (2006) (noting that a mere laundry list of complaints petitioner, her argument is insufficiently developed f or our review. See Stewart inequitable for the trial court to have awarded the Hollis property to the N.H. at 286. Although the respondent argues, in a single sentence, that it was property constituted a sustain able exercise of discretion. See Hampers, 154 that the trial court committed an error of law, we hold that its division of supported by the record and because the parties ha ve failed to persuade us factual findings based upon th o se f actors. Because the trial court ’ s decision is RSA 458:16 - a, II (a) - (c), (f) - (i), (o). The recor d also supports the trial court ’ s the parties’ assets, including those factors upon whi ch the parties rely. See record shows that the trial court considered the statutory factors in dividing retirement assets constitute s an unsustainable exercise of discretion. The distribution, we cannot say that its unequal distribution of the parties’ Having reviewed the trial court’s factual findings that led to its property

not exceed minimum w age.” retirement,” while, “[i]n sharp contrast,” her own “future earnings will probably monthly earnings which can be as much as $20,000.00 a month through argues that “[d]espite the embezzlement, [the petitioner] continues to enjoy that the unequal division of the parties ’ retirement assets is inequitab le. She to the marital estate is properly considered.” The respondent likewise contends and alimony award “is unconscionable when the [r]espondent’s financial harm “inequitable.” He asserts that the “net effect” of both the property distribution The petitioner also argues that the unequal property distribution is

weight to be given evidence”). in the testimony, measuring the credibility of witnesses, and determining the p. 13 13

the marriage, she had been the primary caretaker for the children and “the In awarding alimony to the respondent, the court found that, throughout

See RSA 458:19, IV(d). respective estates, as well as no n - economic contributions to the family unit. may consider the economic contribution of the parties to the value of their federal tax consequences of the order. RSA 458:19, IV(b). Further, the court income; t he fault of either party as d efined in RSA 458:16 - a, II(l); and the parties; the opportunity of each for future acquisition of capital assets and vocational skills, employability, estate, liabilities, and needs of each of the amount and sources of income, the property awarded under RSA 458:16 - a, length of the marriage; the age, health, social or economic st atus, occupation, In determining the amount of alimony, a trial court must consider: the

Hampers, 154 N.H. at 283. request for alimony under our unsustainable exercise of discretion standard. meets reasonable needs. We review the trial court ’ s decision to grant or deny a self - supporting through appropriate employment at a standard of living that become accustomed during the marriage; and (3) the party in need cannot be reasonable needs, considering the st yle of living to which the parties have during the marriage; (2) the payor is able to continue to meet his own considering the style of living to which the parties have become accustomed s ufficient income, property, or both to provide for her reasonable needs, authorizes the trial court to award alimony if: (1) the party in need lacks We next review the trial court ’ s alimony award. RSA 458:19, I,

IV. Alimony

argument. record on appeal. Accordingly, we decline to consider the merits of this reconsideration of the final decree, she has not included that motion in the appellate record. To the extent that she raised this argument in her motion for of fact and rulings of law, she has not provided that request as part of the the respondent presented this issue to the trial court in a request for find ings our review, as was her burden. See Bean, 151 N.H. at 250. To the extent that The respondent has failed to demonstrate that she preserved this argument for

deems relevant. similar lifestyle following divorce; and any other factor the court to such an extent that the other spouse is unable to maintain a conduct; whether the conduct diminished the total marital assets nature of the conduct; the other spouse ’ s knowledge of the conduct which contributed to the growth in value of property; the in value of property, a trial court must consider factors such as: of assets due to a spouse ’ s conduct which resulted in a diminution [I]n app lying RSA 458:16 - a, II(f) to support an unequal distribution p. 14 14

RSA 458:7, IV, the trial court could not consider it when fashioning the respondent’s convictio n and prison sentence arguably qualified as “fault” under economic loss to the marital estate or the injured party.” Here, although the substantial physical or mental pain and suffering” or “[r]esulted in substantial caused the breakdown of the marriage” and the fault either “[c]aused 458:7,” may be considered in distributing the parties’ assets “if said f ault RSA 458:16 - a, II(l) provides that the fault of either party, “as specified in RSA fault of either party only “as defined in RSA 458:16 - a, II(l).” RSA 458:19, IV(b). contrary to the alimony statute, which allows the trial court to consider the the respondent’s fault when fashioning the alimony award. This argument is conduct.” In effect, he argues that the trial court erred by failing to consider the respondent’s financial condition “was due to her deliberate criminal The petitioner next argues that the alimony award was improper because

opportunities for her own job growth, financial independence and security.” standard of living, recover financially to the best of her ability, and pursue “reasonable period of time for the [r]espondent to adjust to her revised rehabilitative purpose of alimony. As the trial court found, eight years i s a for eight years, until she reaches the age of 65, is consistent with the an independent source of income.” Id. Here, awarding the respondent alimony s hould, therefore, generally be designed to encourage the recipient to establish Nass a r & Nass a r, 156 N.H. 769, 777 (2008) (quotation omitted). “Alimony the job market and to provide for their own financial needs.” In the Matter of b ased upon the realization that modern spouses are equally able to function in The principle that the primary purpose of alimony is rehabilitative “is

decline the petitioner’s invitation to adopt it as one. employment.” This is not a requirement under New Hampshir e law, and we did not affect the [r]espondent’s ability to obtain the same or similar rehabilitative alimony is not proper in this case because “the parties[’] marriage See In the Matter of Dube & Dube, 163 N.H. 575, 581 (2012). He asserts that primary purpose of [such] an . . . award,” which we have held is rehabilitative. The petitioner contends that the alimony award is “inconsistent with the

supports these findings. position” through which he grosses m ore than $ p. 14 14,000 per month. T he record found that the petitioner ha s the ability to pay alimony given his “lucrative homestead for himself, and secure a comfortable retirement.” The court also marriage, he will most likely have the ability to recover financially, maintain a resulted from the [r]espondent’s criminal acts and the breakdown of the “[a]lthough the [p]etitioner. . . is still working through the financial havoc that providing an appropriate accommodation for her.” The court found th at that the marital home was “as unaffordable as it is impractical i n terms of respondent needed “immediate access to income for her most basic needs” and only part - time, making “minimal . . . wages.” The court determined that the lesser of the income earners.” At the time of the divorce, she was employed p. 15 15

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

(2003). briefed, are deemed waived. See In re Estate of King, 149 N.H. 226, 230 All issues raised in the notices of appeal and cross - appeal that were not

following three years when husband earne d approximately $13,000 monthly). month for the first two years after divorce and $1,000 per month for the and Gordon, 147 N.H. 693, 699 (2002) (affirming alimony award of $2,000 per for eight years is unreasonable as a matter of law. See In the Matter of Gordon end of the marriage), we cannot say that a monthly alimony award of $2,850 now adults, and the petitioner’s income (despite his financial condition at the the respondent’s education and skills, the fact that the parties’ children are regard to the alimony award. Moreover, given the parties’ long term mar riage, discretion standard). Here, the record supports the trial court’s findings with Lambert, 147 N.H. 295, 296 (2001) (explaining our unsustainable exercise of basis “sufficient to sustain the discretionary judgment made.” State v. alimony award de novo, but to determine only whether there is an objective The parties misperceive our role on appeal. Our role is not to review the

reasonable needs and the petitioner’s ability to pay. after eight years. She also argues that the monthly amount is too low given her that the trial court erred by ordering that the alimony award would terminate respondent is unsupportable. The respondent, on the other hand, contends Finally, the petitioner asserts that the alimony awarded to the

alimony is a matter of statutory law. task of addressing the petitioner’s con cerns,” id., particularly given that public policy are reserved for the legislature, and we therefore leave to it the the wrong forum. See Petition of Kilton, p. 15 156 N.H. 632, 645 (200 7). “Matters of restitution that she owes for her crime. The petitioner makes this argument in misconduct and effectively requires him, as an innocent party, to pay the the respondent violates public policy be cause it rewards her for her criminal In a related argument, the petitioner asserts that awarding alimony to

alimony despite her criminal conduct. court unsustainably exercised its discretion by awarding the respondent the marriage.” RSA 458:16 - a, II(l). According ly, we cannot say that the trial alimony award because the court did not find that it “caused the breakdown of