2020-0080, In the Matter of Lura Sanborn and Jeffrey Bart

controlling member of two limited liability companies that own and operate grandfather in 1927. At the time the final decree was issued, Husband was the operation of a family - owned candy business (GSCS) established by Husband’s employed as a librarian at a private school. Husband is involved in the parties. The parties were married in 2005 and have one child. Wife is facts will be recited below as needed to address specific issues raised by the We briefly recite the following facts found by the trial court; a dditional

We affirm in part, vacate in part, and remand. temporary decree as to the payment of property ta xes on the marital home. order, issued after this appeal was fil ed, granting Wife’s motion to enforce the by the Circuit Court (McIntyre, J.). Husband also appeals the trial court’s petitioner, Lura Sanborn (Wife), cross - appeals, a final decree of divorce issued HICKS, J. The respondent, Jeffrey Bart (Husband), appeals, and the

and orally), for the responde nt. Sheehan Law Office, PLLC, of Concord (Patrick J. Sheehan on the brief

Fairclough on the brie f, and Mr. Eggleton orally), for the petitioner. Orr & Reno, P.A., of Concord (Jeremy D. Eggleton and Judith A.

No. 2020 - 0080 6th Circuit C ourt - Concord Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

chi ld support, the parties shall annually exchange all state and recalculation. For so long as [Husband] has an obligation to pay calculated no later than April 15 and paid within ten days of the Support Guidelines Worksheet. The additional income shall be addi tional income shall be run through the New Hampshire Child additional child support on such additional income. Any year exceeds $9718/month or $116,616/year, he shall pay dividends or other compensation) such that his income in any tax without limitation, guaranteed payments, wages, distributions, Should [Husband] receive additional income (to include

which states, in relevant part: Husband first challenges the final orde r’s provision for child support,

I. Husband’s Appea l

169 N.H. p. 2 299, 304 (2016). appeal but not briefed are deemed waived. See In the Matter of Ross & Ross, inconsistent with its own findings. Any issues raised in a party’s notice of Husband; and (3) award ing final alimony with an amount and duration purposes of child support; (2) dividing the marital estate unequally in favor of argues that the trial court erred in: (1) determining Husband’s gross income for Wife; and (3) modifying the final decree after an appeal had been fil ed. Wife used by Husband for his legal fees, but failing to make the same adjustment fo r future”; (2) adjusting the property distribution to account for marital funds support order that provided for “automatic modifications of child support in the review. Husband argues that the trial court erred in: (1) issuing a child This appeal and cross - appeal now present the following issues for our

enforcing the temporary decree, which we granted. See Sup. Ct. R. 16(3)(b). add a question with this court, seeking review of the trial cour t’s order Husband’s motion for reconsideration. Husband filed an assented - to motion to taxes on the marital home. The trial court granted that motion and denied motion with the trial court to enforc e the temporary decree with respect to cooperate with that process, which the trial court denied. Wife then filed a allow her to sell or refinance the marital home and to order Husband to appeal fo llowed. Subsequently, Wife filed a motion asking the trial court to minor respects, but otherwise denied both motions. This appeal and cross motion for reconsideration. The court corrected and clarified its final decree in filed a motion for reconsideration and/or clarification and Husband filed a petitioned. The court issued a final decree of divorce in Novembe r p. 2 2019. Wife Wife filed a petition for divorce in September 2017 and Husband cross -

stores and several residential apartments. LLC (CMJ) is the entity that o wns the real property housing one of G SCS ’s GSCS and the property on which one of its stores is located. CMJ Associates, p. 3 3

Donovan, 152 N.H. at 65 (quotation omitted). and adjusted for inflation in accordance with the Consumer Price Index” (CPI). that stated the “[o]bligor’s child s upport obligation shall be reviewed annually Subsequently, in Donovan, we struck down a child support order provision support with increases in the [obligor’s] wages.” Heinze, 122 N.H. at p. 3 360 - 61. In Heinze, we upheld “a clause automatically escalating the amount of child N.H. 358 (1982), and In the Matter of Donovan & Donovan, 152 N.H. 55 (2005). We previously considered escalation clauses in Heinze v. Heinze, 122

prohibits such a cl ause. we see nothing in the remainder of RSA chapter 458 - C that specifically and, all other things remaining equal, it should stay at that level”). Moreover, relevant circumstances child support should be within a [specified] range . . . , circumstances” but, rather, reflected court’s determination that “under all th e earnings” did “not violate the statutory requirement for changed maximum “to be reached dependent upon future increases in [obligor’s] annual that adjusted child support obligation from a specified minimum to a specified Madison v. Madison, 859 P.2d 1276, 1278, 1280 (Wyo. 199 p. 3 3) (escalation clause clause merely implements the existing final order according to its terms. Cf. C:7. Rather, recalcula tion of the amount of child support under the escalation a modification of a support order and, therefore, is not governed by RSA 458 - Husband’s arguments are misplaced because the escalation clause is not

would be owed retroactive ly to the beginning of the prior calendar year.” trial court lacked authority to “order [] that the new amount of child support of Birmingham & Birmingham, 154 N.H. 51, 58 (2006) (quotation omitted), the support order beyond the date of ‘notice’ to” the opposing party, In the Matter contends that, because a trial court has “no d iscretion to modify any child substantial change of circumstances. See RSA 458 - C:7 (2018). He further Wife to apply for a modification of the child support order and show a modification of child support orders” set forth in RSA 458 - C:7 by not requiring the escalation clause violates the “clear statutory conditions for the review and reference, we will refer to as the “escalation clause.” Husband contends that challenges the provision for recalculation of child support, which, for ease of Husband does not object to the annual exchange of tax returns, but

& Silva, 171 N.H. 1, 4 (2018). unsustainable exercise of discretion or an error of law.” In the Matter of Silva “We w ill not disturb the trial court’ s rulings regarding child support absent an

GS CS, as well as all schedules, 1099 [s], and k - 1s. their filing as well as draw/distribution records for CMJ and [Husband] shall provide all partnership returns within p. 3 30 days of federal tax returns (by April 15 of each year) and in addition, p. 4 4

escalation clause inconsistent with the statutory scheme. Cf. RSA p. 4 458 - C: 4, II Donovan, 152 N.H. at 64. Accordingly, we do not find the terms of this calculate the total support obligation and the parties’ respective shares. See be “run through the New Hampshire Child Support Guidelines Worksheet” to their tax returns, we construe the order to require that Wife’s income will also obligation. Because the order requires “the parties” to “annually e xchange” Worksheet” to determine the amount of Husband’s additional child support any, “shall be run through the New Hampshire Child Support Guidelines Husband’s income. T he order also directs that Husband’s additional income, if ye ar exceeds $9718/month or $116,616/year,” and, thus, is tied to changes in Here, the escalation clause is triggered if Husband’s “income in any tax

this case does not suffer from the same defect. parties ’ total net income.” Donovan, 152 N.H. at 65. The escalation clause in escalation clause in Heinze, the CPI provision [wa s] not tied to changes in the clause in Donovan violated the statutory scheme because, “[u] nlike the omitted); see RSA p. 4 458 - C:3, I, II(a), (b) (2018). We held that the escalation proportion to t heir respective incomes.” Donovan, 152 N.H. at 6 4 (quotation the resulting total support obligation is divided between the parents in income is multiplied by a percentage based upon the number of children, then “is known as the income - shares model,” under which “the parents ’ total net explained in Donovan, the statutory child support formula i n New Hampshire any, to the actual changes, if any, in the parties’ incomes.” We agree. As w e Donovan, because the order in this case “directly ties the annual adjustment, if to the one we upheld in Heinze, and unlike the clause we struck down in case i s valid. Wife contends that the escalation clause in t his case is analogous We now consider whether the particular escalation clause used in this

no sound reason for considering an escalati on clause to be invalid per se”). matrimonial agreement incorporated in a judgment of divorce,” that “[t] here is escalation clause relating to alimony and child support that is part of a Petersen v. Petersen, p. 4 428 A.2d 1301, 1303 (N.J. 1981) (stating, in reviewing “an Heinze remains good law and that escalation clauses are not invalid per se. Cf. changes in the parties’ incomes.” Id. Accordingly, we conclude both that adjustments to the father’s support obligation that are independent of actual issue was “inconsistent with the child support guidelines because it require [d] we distinguished Heinze and concluded that the particular esc a la tion clause at or invalid per se. See Donovan, 1 p. 5 52 N.H. at 6 5. Rather, as discussed below, clause in Donovan in 2005 as being either contrary to the modi fication statute such a clause. We further note that we did not strike down the escalation order contained in the final decree and nothing in the current statute precludes implementation of the escalation cla use does not modify the child support the modification of child support orders.” As we noted above, however, RSA 458 - C:7 (circa 1991) which established the current statutory scheme for decided in 1982 before passage of the existing child support statute, including Husband challenges the continued validity of Heinze, noting that it “was 5

marital estate to account for [Wife’s] use of the $ p. 5 53,259. required to make an adjustment to the overall division of th e pay for the other’s attorney’s fees . . . the trial court was then pay their legal fees has the effect of requiring the other spouse to Having found that the use of marital assets by one party to

distribution to account for that withdrawal, the trial court erred. He asserts: her attorneys and experts. He contends that by failing to adjust the property withdrew from her checking, money market, and investment accounts to pay Husband argues that the court failed to account for $ p. 5 53, 259 that Wife

incurred for legal fees as a commensurate distribution.” property distribution therefore should take into account [Wife’s] $6 p. 5 5,000 debt treated as an advance of his share of the property distribution” and that “[t]he legal fees.” Accordingly, the court ruled that Husband’s legal fees would “be trial court stated that Wife “should not have to bear the cost of [Husband’s] from a CMJ investment account to pay his legal fees during the divorce, the legal fees. After noting that Husband had withdrawn approximately $64,09 8 treating his and Wife’s withdrawals of marital funds to pay their respective Husband next contends that the trial court erred in inconsistently

escalation clause. of changed circumstances”). For all of the foregoing reaso ns, we uphold the diminish the discretion of the district court to modify child support in the face also Madison, 8 p. 5 59 P.2d at 1280 (noting that “escalation clause [did] not time of the final decree. See Heinze, 122 N.H. at 361; RSA 458 - C:7, I(a); see constitute a substantial change in circumstances from those existing at the subsequent decrease in his income, or other “special factors” he may allege, does not preclude Husband fr om returning to court for a m odif ication if a increases, but not if his income decreases.” We are not persuaded. The order the automatic modification of child support in the event that [his] income time.” He also argues that the order is “patently unfair in that it only calls for the new amount unjust or inappropriate under existing circumstances at the guidelines and to allege whether special factors are present that might render the opportunity to challenge the strict application of the child support he can be obligated to pay a new child support amount, he “must be afforded Husband nevertheless argues that the order is erroneous because, before

child support guidelines”). given that trial court interpreted it to require such computation “based on the support obligation at the end of each calendar year did not viola te public policy p. 6 681 (Me. 1999) (concluding that judgment requiring parties to recompute the correct amount of child support”); Glew v. Glew, 734 A.2d 676, 678, 679, would result from the application of guidelines provided under this chapter is (2018) (creating rebuttable presumption “that the amount of the award which 6

because its order “was a status quo preservation ruling, nothing more.” effect.” She also argues that the trial court had jurisdiction to grant her motion for the pro position that, during the appeal, the Temporary Decree remained in 2.29(B)(1)(d), and notes her reliance be fore the trial court on Rule “2.29(B)(1)(a) Wife counters that property taxes are not an on - going expense under Rule court lacked jurisdiction to do so after an appeal to this court had been filed. property taxes had the effect of modifying the final decree, and that the trial decree.” He further argues that granting Wife’s motion as to the payment of such taxes became Wife’s “sole responsibility upon issuance of the Final became effective upon issuance of the clerk’s not ice of decision and, therefore, purposes of Family Division Rule 2.29(B)(1)(d), the order for their payment Husband argues that because property taxes are an on - going expense for

estate taxes for this property and all expenses for this property.” division, provided that she “shall be responsible for the payment of the. . . real final decree, by contrast, awarded the home to Wife and, as part of the property the “parties shall equally share the property tax bill for the marital home.” The Wife temporary and exclusive use of the marital home but had provided that payment of taxes on the marital home. The temporary decree had awarded th is appeal, granting Wife’s motion to enforce the temporary decree as to the Husband next challenges the trial court’s order, issued after we accepted

reconsider ation of thi s issue. that we cannot reconcile, we vacate the property settlement and remand for $53,259 in marital funds to pay attorney’s fees present an apparent conflict the property settlement and its finding that Wife us ed an unaccounted - for expenses. Because the court’s statement that it dealt with attorney’s fees in $53,259 that the trial court found Wife had withdrawn to pay her litigation CMJ withdrawal and Wife’s $ p. 6 65,000 debt from legal fees; it did not list the The property division, however, only accounte d for husband’s $64,098

fees owed or previously paid with marital funds. this statement that the court intended the property division to address all legal pa rt of the final property distribution”). It could be reasonably inferred from sums paid by the [husband] for her attorney’s fees, the court made these fees 291 (200 p. 6 6) (noting that when the trial court permitted the wife “to retain the property division.” See In the Matter of Hampers & Hampers, 154 N.H. 2 p. 7 75, in Hampers, the attorney’s fees issue has been addressed in the context of the each party pay his or her own legal fees, but also noted that “[i]n this case, as the trial court not only found no applicable exception to the American Rule that Husband’s unwillingness to cooperate with d iscovery. In denying that request, request that Husband be ordered to pay a portion of her legal fees due to This is especially so, Husband argues, when the trial court denied Wife’s 7

Fam. Div. R. 2.29(B)(1)(a); Gray, 161 N.H. at 16 p. 7 7 - 68. remained in effect as a “temporary order” during the pendency of this appeal. temporary decree’s provision for equal sharing of the property tax oblig ation provision of the final decree’s property division from taking effect, and the Accordingly, pursuant to Rule 2.29(B)(4), the filing of this appeal stayed that marital home would remain in effect during th e pendency of an appeal. making Wife solely responsible for the payment of real estate taxes on the Here, the trial court did not specifically order that the final decree’s provision and that allocates respo nsibility for payment of property - related expenses. not extend to a provision that forms part of the final decree’s property division conclude that the phrase “[o]rders for . . . payment of on - going expenses” does Reading Rule 2.29(B) as a whole and in light of our precedent, we

order stays it from taking effect.” Id. at 16 p. 7 7 - 6 8. of an appeal, the general rule remains that timely appealing a trial court’s final a trial court may order that a final order remain in effect during the pendency appeal.” Gray v. Kelly, 161 N.H. 160, 167 (2010). “While, in appropriate cases, orders that the final order should remain in effect pending resolution of the effect during the pendency of any appeal unless the trial court specifically replaces a pre viously issued temporary order, the temporary order remains in of Nyhan & Nyhan, 151 N.H. 739, 745 (2005). Accordingly, “where a final order court does not go to final judgment if a timely appeal is taken.” In the Matter Our case law, in turn, holds that, “[g]enerally, a decree issued by the trial

Fam. Div. R. 2.29(B).

division shall take effect. no orders as to marital status or parentage or as to property supreme court may order, whichever is last. During this period, mandate or the conclusion of such further proceedings as the subsection 1 shall continue in effect until the supreme court 4. If any party files an appeal, all orders described in . . . . a t the discretion of the court. e. Provisions concerning the welfare of a child or the safety of a party, d. Orders for alimony or payment of on - going expenses; and c. Uniform support orders; b. Parenting plans; a. Temporary orders; another effective date: notice of decision, unless the court specifies, e i ther orally or in writing, 1. The following orders are effective upon the issuance of the clerk’s

In pertinent part, Rule 2.29(B) provides: p. 8 8

cla use we upheld above, we find no reversible error. discrepancies in succeeding years will be dealt with through the escalation actual income as calculated from the 201 p. 8 8 tax returns. Because any similar discrepancies between Husband’s asserted income and what it found to be his arrearage of $9,310. Accordingly, the trial court accounted for any February 2018 to November 2019 and ordered Husband to pay a total trial court recalculated Husband’s child support for various periods between CMJ was a loan, and treated that amount as income. In its final order, the also disbelieved Husband’s testimony that a nearly $40,000 withdrawal from $1,384.18 as Husband testified and stated on his financial affidavit. The court month, as calculated from the 2018 tax return schedule for CMJ, rather than instance, the court found that the rental income from CMJ w as $3,103.91 per GSCS, but disbelieved his testimony regarding his income from CMJ. For appears to have credited Husband’s testimony regarding his income from on his financial affida vit was derived from his 2018 tax returns. The court At the hearing on the merits, Husband explained that the income figure

inconsistency. use the 201 p. 8 8 tax returns as the basis for [Husband’s] income.” We find no current in come is not credible” and that it wa s “appropriate for th [e] Court to by the court, including findings that Husband’s “testimony regarding his total determination conflicts with a number of her proposed factual findings granted affidavit and his testimony at the final hearing. Wife contends this income per month, which, in turn, appears to be based on Husband’s financial Husband’s child support obligation was based on an income of $9,718

[Husband’s] income was testimony the trial court itself deemed ‘ not credible. ’” asserts that “[t]he only evidenc e supporting the trial court’s determination of credible evidence and “at odds with [the trial court’s] own findings of fact.” She for purposes of calculating child support, arguing that it is unsupported by Wife first challenges the trial court’s determination of Husband’s income

II. Wife’s Cross - appeal

the status quo” during pe ndency of appeal). 44 p. 8 8 (noting that trial court “has adequate authority and jurisdiction to preserve status quo preservation ruling” within the trial court’s jurisdiction. See id. at effect as a matter of law. As such, we agree with Wife that the order “was a rather, enforced the temporary decree which, as noted above, remained in argument because the trial court’s order did not modify the final decree, but, Munnis, 107 N.H. 446, 447 (1 p. 9 966) (quotation omitted). We reject Husband’s control of the lower court with reference thereto are suspended.” Rautenberg v. jurisdiction over the subject matter of the proceedings, and the authority and has been perfected, this Court is vested with the exclusive power and the final decree’s provision regarding property taxes because “[a] fter the appeal Husband also contends that the trial court lacked jurisdiction to modify 9

these properties was obtained almost ten years into the parties’ marriage” and and/or gifted to Husband, but argues that “the vast majority of his interest in Wife does not dispute that the properties at iss ue were inherited by

that pursuant to RSA 458:16 - a, II (n), an unequal distribution is appropriate.” property were inherited and/or gifted to [Husband]. Therefore, the Court finds have been in [Husband’s] family for nearly 100 years. The business and explained that “[t]he candy business and the property in which it is located property acquired by gift, devise, or descent.” RSA 458:16 - a, II(n). The court Here, the court gave dispositive weight to factor (n): “T he value of any

N.H. at 11. consider all of the enumerated factors or give them equal weight.” Silva, 171 Husband points out, however, we have noted that “[t]he court need not $230,000 — actually require a disproportionate distribution to” her. As including [Husband’s] diminishment of the marital estate by more than factors but one favor an equal distribution between the parties — and some, disproportionate allocation in Husband’s favor was erroneous where “all of the enumerated fa ctors. RSA 458:16 - a, II (20 18). Wife argues that a division would not be appropriate or equitable after considering one or more” equitable distribution of property,. . . unless the court decides that an equal between the parties, t he court “shall presume that an equal division is an RSA 458:16 - a provides that in ordering an equitable division of property

Id. findings can reasonably be made on the evidence presented, they will stand.” unsustainable exercise of discretion or an error of law.” Id. “If the court’s at p. 9 9. “We will not overturn a trial court’s decision on the se matters absent an property distribution when fashioning a final divorce decree.” Silva, 171 N.H. “The trial court is afforded broad discretion in determining matters of

unjust, in equitable and not supported by the facts.” marital lifestyle,” and 45% to Wife. Wife argues that this allocation “was inherited nature of the assets that created his livelihood and supported the estate “slightly unevenly,” awarding 55% to Husband, “recognizing the distribution of the marital estate to Husband. The cou rt divided the marital Wife next argues that the trial court erred in making a disproportionate

capital gains, however, we find no reversible error. the escalation clause we upheld above should adequately account for future been used in determining his income for child support going forward. Because purposes for that period, but appears to contend that those gains should have Husband’s capital gains for 2018 were included in his income for child support child support purposes. At oral argument, Wife’s coun sel conceded that Husband’s capital gains income from its calculation of his gross income for We similarly reject Wife’s argument that the trial court erred in omitting p. 10 10

HANTZ MARCONI and DONOVAN, JJ., concurred.

for reconsideration by the trial court. resolve the apparent inconsistency, we vacate the alimony award and remand is reasonable considering [certain statutory factors].” Because we cannot requested finding that “[t] he amoun t and duration of alimony sought by [Wife] finds [Husband] to be earni ng now, is reasonable.” It also granted Wife’s order, which was established based upon income less than what the Court granted Wife’s request for a finding that “[c] ontinuation of the existing alimony be inconsistent with certain of its factual findings. Specifically, the court We agree with Wife that the trial court’s final alimony award appears to

alimony award are inconsistent with the court’s own findings. 69 - month award. She argues that the amount and duration of the final her request for a 72 - month award of alimony to be reasonable, but granted a higher income of $9,718 per month. She also asserts that the trial court found month,” but awarded $1, 000 per month alimony when it found H usband had a of $1,500 per month “based on a professed income by [Husband] of $8,901 per award. She asserts that the trial court inexplicably ordered temporary alimony Finally, Wife challenges the amount and duration of the final alimony

error of law”). on property distribution “absent an unsustainable exercise of discretion or an discretion); see id. at 9 (noting that we will not overturn a trial court’s decision 4 (quotation omitted) (discussing standard for sustaining an exercise of judicial discretionary judgment” as to the unequal property division. Silva, 171 N.H. at establishes an objective basis sufficient to sustain the [trial court’s] properties were gifted and/or inherited, we conclude that “the record Where Wife does not challenge the unde rlying factual finding that the equal division would not be appropriate or equitable.” RSA 458:16 - a, II. court to conclude, on the basis that property was gifted or inherited, “that an assets, but not at [h er] expense.” We disagree. The statute explicitly allows the properties “might support ensuring that he emerge from the divorce with these She further argues that the court’s finding that Husband inherited these earned an equal interest through their diverse contributions to the marriage.” that the properties were “nevertheless marital properties in which both part ies