2015-0345, In the Matter of Danielle Ross and Christopher Ross

parties were married on July 27, 2002, and ha d two children prior to their The trial court found, or the record supports, the following fa cts. The

his request to modify the temporary support order s, we affirm. as a basis for the defense of recrimination, and that the respondent withdrew hold that a party’s actions after the divorce petition has been filed can be used order s based upon the petitioner’s alleged ly understated income. Because we the marital estate; and (3) in failing to retroactively modify temporary support upon the defense of recrimination; (2) in failing to award him more than half of the tr ial court erred: (1) in granting the petitioner’s motion to dismiss based Stephen, J.) in his divorce from the petitioner, Danielle Ross. He argues that fault - based divorce and the final order of the court (Cooper, M., approved by Circuit Court (Cooper, M., approved by Ryan, J.) dismiss ing his petition for a HICKS, J. The respon dent, Christopher Ross, appeals an order of the

brie f and orally), for the respondent. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

Steven G. Shadallah, of Salem, on the brief and orally, for the petitioner.

No. 2015 - 0345 10th Circuit Court - Salem 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

context of the overall statutory scheme and not in isolation.” Id. legislature did not include.” Id. Moreover, “[w] e interpret statutes in the will not consider what the legisl ature might have said or add words that the whole.” Id. “We interpret legislative intent from the statute as written, and we the legislature’s intent as expressed in the words of the statute considered as a of Hampers & Hampers, 166 N.H. 4 p. 2 22, 433 (2014). “We are the final arbiter of We review a trial court’s interpretation of a statute de novo. See In the Matter Resolu tion of this issue requires us to engage in statutory interpretation.

where bot h parties and trial court did so). Dobrowolski, 1 p. 2 25 N.H. 572, 573 (1984) (considering facts outside the pleadings n either party argues that the trial court erred in doing so. Cf. Hill v. relationship with another woman after the petitioner filed for divorce, and considered the undisputed claim that the re spondent began a sexual drawn therefrom most favorably to [him].” Id. W e note that the trial court [respondent’s] pl eadings to be true and construe all reasonable inferences the Matter of Kenick & Bailey, 156 N.H. 356, 358 (2007). “We assume the are reasonably susceptible of a construction that would permit recovery.” In standard of review is whether the allegations in the [respondent’s] pleadings In considering the trial court’s ruling on the motion to dism iss, “our

petitioner’s motion to dismiss. See Sup. Ct. R. 16(3)(b). respondent’s notice of appeal alleged that the trial court erred in granting the argument, but we h old that the issue is properly presented because the RSA 458:7 ( p. 2 2004). T he petitioner raises a preservation issue regarding this respondent was not an “innocent party” within the meaning of the statute. the trial court did not err in granting the motion to dismiss because the be used as a basis for the defense of recrimination. The petitioner argues that infidelity, which occurred eleven months after the parties’ separation, could not ground in his cross - petition for divorce. S pecifi cally, he argues that his The respondent appeals the trial court’s dismissal of the fault - based

the marital breakdown. This appeal followed. entered a final decree of divorce citing irreconcilable differences as the cause of court granted the motion over the respondent’s objection. In p. 2 2015, t he court filed a motion to dismiss, alleging recrimination by the respondent. The trial respondent began a sexual relationship with another woman. The petitioner Approximately eleven month s after the petitioner filed for divorce, the

II ( p. 2 2004), and irreconcilable differences. on fault - based grounds, due to the petitioner’s alleged adultery, see RSA 458:7, 458:7, V (2004);:7 - a (Supp. 2015). The respondent cross - petitioned for divorce both fault and irreconcilable differences as grounds for divorce. See RSA separation in 2011. The petitioner filed for divorce in December 2011, alleging p. 3 3

omitted). C ausation is not an element of the defense of recrimination. which would be grounds for divorce.” Rockwood, 105 N.H. at 1 p. 3 31 (quotation party” because he or she “is guilty of an offense against the other spouse, hands doctrine). Thus, i t need only be shown that a spouse is not an “innocent (noting that the defense of recrimination is encompassed within the unclean (quotation omitted); De Burgh v. De Burgh, 250 P.2d 598, 605 (Cal. 1952) hand s.” Brewies v. Brewies, 178 S.W.2d 84, 85 (Tenn. Ct. App. 1943) invokes the aid of a court must come into it w ith a clear conscience and clean offense in bar of another is an application of the equitable rule that one who caused the mar i tal breakdown. R ather, the “right to set up one matrimonial marriage. However, recrimination does not turn upon which party’s conduct the petitioner because his adultery did not cause the breakdown of the The respondent argues that the defense of recrimination is unavailable to

petitioner’s motion to dismiss. T hus, we are not persua ded that the trial court erred by granting the precluded him from claiming status as an “innocent party” under RSA 458:7). Dube, 16 p. 3 3 N.H. 575, 579 - 80 (2012) (holding that husband’s infidelity other than his wife” (quotation omitted)); see also In the Matter of Dube & adultery as “voluntary sexual intercourse between a married man a nd someone Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227 (2003) (defining began a sexual relationship with a woman who was not his w ife. See In the Here, it is undisputed that the respondent was still married when he

deciding the motion to dismiss. trial court correctly consider ed the respondent’s post - petition conduct when arise before or after the filing of the divorce petition. See id. Therefor e, the based grounds that arise prior to the final decree, regardless of whether they party” at the ti me of the decree. I d. The statute makes no exception for fault party.” RS A 458:7. T he statute necessarily requires that one be an “innocent 458:7, which states that a divorce “shall be d ecreed in favor of the innocent p. 3 368 (2008). This general proposition is reflected in the plain language of RSA commencement of the suit.” 24 Am. Jur. 2d Divorce and Separation § 162, a t [fault - based] divorce therein as if it had occurred previous to the commencement of his or her suit, it is as fully effective to bar the right to a “Generally, although the misconduct of the plaintiff occurs after the

Id. other words, recrimination is a defense against a spouse who is not innocent.” Rockwood v. Rockwood, 105 N.H. 129, 1 p. 3 31 (1963) (quotations omitted). “In grounds for divorce, cannot himself obtain” a divorce under RSA p. 4 458:7. spouse who is guilty of an offense against the other spouse, which would be “[I]nnocent” means “free from guilt,” and “[o]ur court has stated flatly that a including “[a]dultery of either party.” RSA 458:7 (emphasis added). decreed in favor of the innocent party for any of” the enumerated causes RSA 458:7 states that “[a] divorce from the bonds of matrimony shall be 4

Strafford, 156 N.H. 6 p. 4 4, 68 (200 7). The r espondent, who is represented by bare assertion; thus, we reject it as undeveloped. See Auger v. Town of petitioner “did not cross - appeal.” However, t he respondent fails to explain this us. He argues that the “issue of withdrawal . . . was waived” because the issue regarding the petitioner’s alleged underreported income is properly before We are not persuaded by any of the respondent’s arguments that the

had not withdraw n the motion. motions before the Court.” Respondent’ s trial counsel later claim ed that he underreported income. The court added that its order “resolve[d] all pending other considerations, does not mention the issue of the petitioner’s alleged ly moti ons, which adjusted the parties’ temporary support obligations based upon was withdrawn, Judge, never presented.” The court’s order o n the pending the respondent’s March 2013 motion, respondent’s counsel replied that “[i]t under reported financial affidavit.” When counsel for the petitioner pointed out modify” the temporary support orders based upon the petitioner’s “grossly hear ing, respo ndent’s counsel stated that the respondent “never attempted to hearing on pending motions, including th e modification motion. At that hearing. However, on June 26, 201 p. 4 4, more than year later, the cour t held a the trial court ruled that the motion would be considered during the final The respondent filed his motion to modify in March 2013. At that time,

agree with the petitione r. respondent withdrew this motion in the trial court, the court did not err. We alleged underreporting of her income. The petitioner argues that because the his motion to modify its temporary support order s, due to the petitioner’s T he respondent next argues that the trial court erred by failing to grant

or alimony.”). difference s, fault would not be considered on the questions of property division granted and the court grants a divorce on the ground of irreconcilable 795 (1985) (“[I]f the plai ntiff does not prove fault on which divorce can be cross - petition for a fault - based divorce. See Chabot v. Chabot, 126 N.H. 793, the trial court should not have granted the petitioner’s motion to dismiss his marita l estate. T hat argument is premised up on his erroneous contention that argument that the court should have awarded him more than half of the respondent’s fault - based divorce cross - petition, we need not address his Given our c onclusion that the trial court did not err in dismissing the

632, 6 p. 4 4 p. 5 5 (2007). task of addressing the [respondent’s] concerns.” Petition of Kilton, 156 N.H. of public policy are reserved for the legislature, and we therefore leave to it the based divorce. However, this argument is made in the wrong forum. “Matters must remain celibate for the duration of the p roceedings” to obtain a fault these times of protracted discovery and litigation, that a party to a divorce T he respondent also asserts that “[i]t is not reasonable to suggest, in 5

DALIANIS, C.J.