2020-0029 & 2020-0313, In the Matter of James R. Britton and Patricia F. Britton

provided that the petitioner would pay $400 per week in alimony until the which incorporated the parties’ permanent stipulation. The stipulation The parties were divorced in 1985 pursuant to a final divorce decree,

part and reverse in part. contempt for nonpayment of alimony and renewal of alimony. We affirm in alimony and granting the requests of the respondent, Patricia F. Britton, for orders of the Circuit Court (LeFrancois, J.) denying his request to terminate HANTZ MARCONI, J. The petitioner, James R. Britton, appeals two

(Pamela A. Peterson on the brief and orally), for the respondent. Devine, Millimet & Branch, Professional Association, of Manchester

Jonathan M. Flagg, of Portsmouth, by brief and orally, for the petitioner.

2020 - 0313 No s. 2020 - 0029 10th Circuit - Brentwood Family Division

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

in 1988 and held him in contempt for discontinuing payments in p. 2 2018. The that the 1983 version of RSA 458:19 did not terminate his alimony obligations petitioner argues that the trial court erred as a matter of law when it found his motion for modification and the respondent’s motion for contempt. The We first consider the petitioner’s appeal of the trial court’s decision on

$ p. 2 200 per week. This appeal followed. of renewed alimony, from October 2019 to October 2022, in the amount of 4 58:19 was applicable to the respondent’s motion and awarded her three years In a separate order, the trial court again found that the 1983 version of RSA the parties agreed to have the court decide the motion on the record presented. objection. Initially, the petitioner requested an additional hearing; however, respondent then filed a written motion, and the petitioner filed a written hearing on the merits, but the court deferred ruling on the motion. The made an oral motion for renewed alimony at the beginning of the August 28 I n the November o rder, the trial court observed that the respondent had

not changed dramatically since her divorce in 1985.” pay alimony of $ p. 2 200 per week,” and that the respondent’s “circumstances have terminate alimony” because he “has not established that he cannot continue to also determined that t he petitioner “has not carried his burden of proof to of alimony for three years from October 2016 to October 2019. The trial court 458:19 (1983). The trial court construed the 2016 stipulation as an extension was “renewed, modified, or extended” for an additional three years. See RSA decree, and that it limited alimony to a period of three years unless the order observed that the 1983 version of RSA 458:19 applied to the parties’ divorce to hold the peti tioner in contempt for failing to pay alimony. The trial court petitioner’s request to terminate alimony and granted the respondent’s request In November 2019, the trial court issued an order that denied the

p. 2 2019. for contempt. The trial court held a final hearing on the merits on August 28, a substantial decrease in income. In July 2018, the respondent filed a motion modification requesting termination of the alimony award, alleging that he had respondent until April 2018. In June 2018, the petitioner filed a motion for Thereafter, the petitioner resumed making $200 weekly payments to the court approved the 2016 stipulation, converting it into a court order. agreed to resolve the matter by stipulation (the 2016 s tipulation). The trial contempt, allegin g that the petitioner stopped paying alimony. The parties In 2016, the respondent filed a petition to bring forward and for

alimony until the death of either the petitioner or the respondent. stipulation provided that the petitioner would pay her $ p. 2 200 per week in respondent died or reached the age of 65. After t he respondent turned 65, the rders and use such

alimony award, but merely resolved the respondent’s pending petition under an remained in force. T he 2016 stipulation did not renew or extend the 1985 week, indicating that the parties believed that the 1985 alimony award of alimony, but the petitioner paid, and the respondent accepted, $200 per office at Exeter River Landing.” The 2016 stipulation does not state an amount future weekly alimony payments to [the respondent] in a time ly manner via the provision referencing alimony provides that the petitioner “shall pay any and all in the 2016 stipulation purp orts to extend or renew alimony; in fact, the only bring forward, to enforce the 1985 divorce decree, and for contempt. Nothing 2016 stipulation that its purpose was to resolve the respondent’s petition to stipulation as an extension of alimony. The parties expressly stated in the stipulation an order.”). We reject the trial court’s characterization of the 2016 court’s . . . approval of the parties’ stipulated parenting plan made the the Matter of Goulart & Goulart, 158 N.H. p. 3 328, 330 (2009) (“The superior stipulation did not serve to renew or extend the 1985 alimony award. See In Likewise, we conclude that the court order approv ing the 2016

1985, we conclude that the petitioner’s alimony obligations expired in 1988. (Morphy I). As a result, because the original alimony award was first entered in of the alimony obligation. See Morphy v. Morphy, 112 N.H. 507, 509 (1972) alimony beyond the three - year limit does not override the statutory expiration (2010). Furthermore, we have held that a stipulation providing for a term of extended. See In the Matter of Canaway & Cana way, 161 N.H. 286, 291 the statute automatically expired after three years unless renewed, modified, or We have previously held that an obligation to pay alimony under this version of

process as may be necessary. before or after the decree, may make such o husband to disclose, under oath, the situation of his property; and for periods of not more than p. 3 3 years at a time; and may compel the such order may be renewed, modified or extended if justice requires the order shall be effective for not more than 3 years.... However, involved, or in which the children have reached the age of majority, may be deemed just, provided that in cases in which no children are estate of her husband, or order him to pay such sum of money, as all or any part of her estate, and may assign to her such part of the Upon a decree of nullity or divorce, the court may restore to the wife

The 198 p. 3 3 version of RSA 458:19 provides:

parties ’ original divorce decree. in 2016. Both parties agree that the 198 p. 3 3 version of RSA p. 4 458:19 applies to th e alimony for thirty years, and reaffirming his obligation with a new stipulation recover the overpayment of alimony by agreeing to the stipulation, paying alimony order to a three - year duration, the petitioner waive d any claim to respondent argues that even if the 1983 version of RSA 458:19 limits an 4

voluntary payments toward future alimony obligations would not meet the alimony support. Thus, the trial court implicitly concluded that c rediting numerous findings concerning the respondent’s ongoing need for continued that the trial court had discretion to allow such credit, the trial court made 2018 toward any future alimony obligations. Even assuming, without deciding, erred by denying his request for credit for payments made between 1988 and Nor are we persuaded by the petitioner’s argument that the trial court

and 2018. Harding, 87 N.H. at p. 4 488. reimbursement for any of the sums he paid to the respondent between 1988 made any allegation of fraud. As a result, the petitioner is not entitled to fraudulent misrepresentation of the law by the other.”). The petitioner has not is entitled to restitution thereof if his mistake was caused by reliance upon a who has conferred a benefit upon another induced thereto by a mistake of law, 488 (1935); see also Mullins v. O’Brien, 93 N.H. 118, 118 - 19 (1944) (“A person under a mistake of law cannot be recovered.” Harding v. Hewes, 87 N.H. 488, required and w ere, therefore, voluntar y. A bsent fraud, “money voluntarily paid the mistaken belief that the 1985 alimony order remained in ef fect were not expired in 1988. As a result, the amounts the petitioner paid in error based on petitioner did not have an obligation to pay alimony after the alimony award overpayment toward his future alimon y obligations. As noted above, the order reimbursement from the respondent or, in the alternative, credit the The petitioner next argues that the trial court erred when it declined to

support awarding attorney’s fees). ruling had been overturned and the trial cou rt had made no other finding to (1995) (reversing the trial court’s award of attorney’s fees because the favorable motion for contempt. See DePalantino v. DePalantino, 139 N.H. 522, 526 trial court erred when it awarded attorney’s fees to the respondent on the reason that attorney’s fees should be awarded, we likewise conclude that the petitioner in contempt, and because the trial court set forth no alternative In addition, because we conclude that the trial court erred in holding the

unenforceable by statute). provision of the divorcing parties’ court - approved stipulation because it was that it was plain error based on mistake of law for the family court to enforce a of the 2016 stipulation and order. See, e.g., Goulart, 15 8 N.H. at 332 (finding in 1988, we hold that the trial court erred in finding the petitioner in contempt Since we have concluded that the petitioner’s obligation to pay alimony expired statute, the payor cannot be held i n contempt or ordered to pay arrearages. Id. We have previously held that, whe n an alimony award has expired by

p. 5 509. s erve to renew or extend the 1985 alimony award. See Morphy I, 112 N.H. at Accordingly, we agree with the petitioner that the 2016 stipulation did not erroneous understanding that the original alimony award was still in effect. 5

alimony. In essence, the petitioner seeks to apply the five - year limit on applied the 2019 version of RSA 4 p. 5 58:19 to the respondent’s motion to renew his arguments above, the petitioner contends that the trial court should have Next, despite his reliance on the 1983 version of RSA 458:19 to support

the discretion to regulate the proceedings before it.”). alimony in this manner. Sabinson, 160 N.H. at 461 (“[T] h e trial court enjoys exercise its discretion in allowing the respondent to bring the motion to renew concluded. Therefore, we conclude that the trial court did not unsustainably allow the motion to be heard i n the same proceeding, which had not yet heard, we cannot say that he was prejudiced by the trial court’s decision to able to respond to the written motion, and was granted an opportunity to be petition, given that the petitioner was clearly put on notice of the motion, was proper procedur e to request renewal would have been the filing of a new job of administering justice.” (quotation omitted)). Thus, even assuming the of the court is a bsolutely necessary for a court to function effectively and do its conduct of participants, the actions of officers of the court and the environment 461 (2010) (“The power of the judiciary to control its own proceedings, the Fam. Div. R. 1; cf. Sabinson v. Trustees of Dartmouth College, 160 N.H. 4 p. 5 52, may waive the application of any rule, except where prohibited by law.” N.H. “As good cause appears and as justice may require, the family division

petitioner withdrew his hearing request. the motion to renew on the record presented at the August 28 hearing, and the court granted. The parties thereafter agreed that the trial court should decide petitioner filed a written objection and requested a new hearing, which the trial August 28 hearing, that she subsequently filed a written motion, that the court noted that the respondent made an oral motion to renew alimony at the without filing a new petition and serving notice on the petitioner. The trial respondent to file a motion to renew alimony after the August 28 hearing First, the petitioner argues that the tr ial court erred when it allowed the

petitioner’s procedural arguments before turning to the merits of his appeal. the respondent’s motion to renew alimony. We will first address the We next consider the petitioner’ s challenge to the trial court’s order on

it on appeal. See White v. Augur, 171 N.H. 660, 66 p. 5 5 (2019). 1991. This argument is not sufficiently developed, and we decline to consider credit property valued at $125,000 that he had given to the respondent in The petitioner also argues that the trial court erred when it failed t o

credit of sums paid between 1988 and 2018. unsustainably exercise its discretion in declining to order reimbursement or respondent’s need. Accordingly, we conclude that the trial court did not p. 6 6

award had expired. allowed the respondent to renew her request for alimony years after the initial award, we must first determine whether the 1983 version of RSA 458:19 order to determine whether the trial court erred in granting a renewed alimony properly renewed the alimony award that had terminated in 1988. Thus, in court based its decision on the erroneous conc lusion that the 201 p. 6 6 stipulation after the initial alimony award expired in 1988. As explained above, the trial when it found that the respondent could renew a request for alimony decades The petitioner next argues that the trial court erred as a matter of law

renewal should be governed by the 1983 version of RSA 458:19. A ccordingly, the trial court did not er r when it determined that the motion for result, the retroactivity provision of Chapter 310 does not apply to this case. was filed in 1985, well before the effective date of the amended stat ute. As a 1, 2019. See Laws 2018, c h. 310. The original petition for divorce in this case filed between the effective date of the amendment, June 25, 2018, and January amendment to RSA 458:19 can be applied retroactively only to cases that were The plain language of the statute establishes that, absent agreement, the

to adopt some or all of the provisions of this act. III. Parties to any case filed prior to January 1, 2019 may agree

the law existing as of the date of passage. on January 1, 2019 would be both equitable and consistent with finds that adopting any or all of the provisions due to take effect effective date of this section unless the court in its discretion January 1, 2019 shall be controlled by the law in effect on the II. Cases filed between the effective date of this section and

2019. I. This act shall apply to all cases filed on or after January 1,

310: p. 6 6 Applicability.

310: p. 6 6. It states: statute becomes effective and when it can be applied retroactively. Laws 2018, Bill 71 contains an express provision that establishes when the amended 458:19 was amended in 2018 by Senate Bill 71. Laws 2018, c h. 310. Senate statute, we ascribe the plain and ordinary meaning to the words used. Id. RSA Costella, 166 N.H. 705, 709 (2014). When examining the language of the interpretation. The interpretation of a statute is a question of law. State v. The petitioner’s argument requires us to engage in statutory

the 1983 version of RSA 458:19 applied to the respondent’s motion. We agree. but absent from the 1983 version of RSA 458:19. The trial court found that motions to renew alimony that is present in the 2019 version of RSA 458:1 9 p. 7 7

In the Matter of Aube & Aube, 158 N.H. 459, 466 (2009) (“The fact finder may loan to a friend, the trial court was not required to credit this testimony. See belonged to his wife, and the proceeds from the sale of the boat went to repay a money. Though the petitioner claimed the proceeds from the sale of the house of assets, including his house and a fishing boa t, for substantial sums of continue to care for him. The trial court also found that the petitioner disposed most of which he then gave to his current wife in exchange for a promise to petitioner had received a $250,000 cash settlement from his sons in 2018, petitioner has the ability to pay $200 per week in alimony. It found that the still leave her with a monthly deficit. The trial court also found that the unchanged since the divorce in 1985, and that the $200 alimony award would concluded that the respondent’s circumstances remain substantially which still substantially exceeds her monthly income. The trial court monthly expenses were around $8,558, half of which is paid by her sons, but to her or on her behalf by her so ns. The trial court found that her total and retirement distributions, as well as income from the family business paid amounts to $2,689.10. It found that her income is derived from Social Security The trial court found that the respondent’s total monthly income

exercise of discretion. See id. factual findings based on the August 28 hearing absent an unsustainable in determining and ordering alimony. Id. We will not overturn the trial court’s Hoyt, 1 p. 7 71 N.H. 373, 376 (2018). W e accord broad discretion to the trial court are unsupported by the evidence or legally erroneous.” In the Matter of Hoyt & alimony, “we will affirm the findings and rulings of the trial court unless they the $200 per week alimony award. In reviewing the trial court’s award of Additionally, the petitioner challenges the trial court’s decision to renew

years after the initial alimony award expired. err when it allowed the respondent to file a motion for renewal of alimony many had no such limitation. Accordingly, we conclude that the trial court did not and wh ich the petitioner asks us to apply here, the 19 p. 8 83 version of RSA 458:19 which establishes a five - year cut - off for requests to receive or extend alimony, award has expired. Id. at 88. Contrary to the 2019 version of RSA 458:19, implicitly recognized that such a motion may be filed years after the original affirming the trial court’s decision to grant renewed alimony, our decision years prior to the request for renewed alimony. Id. at 88 - 89. Thus, by order renewing the alimony award despite the initial alimony order expir ing six from the initial divorce decree. Id. In Morphy II, we affirmed the trial court’s of RSA 458:19, which contained a provision limiting alimony to three years Morphy, 114 N.H. 86 (19 p. 7 74) (Morphy II). Morphy II involved a pr e - 1983 version initial award of alimony has expired by operation of law. See Morphy v. considered whether an individual seeking to renew alimony can do so after the On facts that are similar to the case at bar, we have previously 8

HICKS, BASSETT, a nd DONOVAN, JJ., concurred.

affirm the trial court’s order on the respondent’s motion to renew alimony. the respondent’s motion for contempt and its award of attorney’s fees, and we reverse the trial court’s order on the pe titioner’s motion for termination and on granting the respondent’s motion for renewal of alimony. Accordingly, we However, we also conclude that the trial court did not err in considering and award did not expire in 19 p. 8 88 and that the 2016 stipulation was enforceable. In sum, we hold that the trial court erred when it found that the alimony

required the renewal of alimony. Id. not unsustainably exercise its discretion when it determined that justice petitioner had the ability to pay. Accordingly, we hold that the trial court did findings that the respondent had a continuing need for alimony and that the Based on the foregoing, we find that the record supports the trial court’s

court’s factual findings on these grounds. Hoyt, 171 N.H. at 376. trust. Given the deferential nature of our review, we decline to disturb the trial with the respondent’s estate planning in 2010, which transferred assets into a petitioner’s receipt and transfer of large amounts of cash to his current wife determining the parties’ respective need and ability to pay, to equate the Finally, t he petitioner challenges the trial court’s failure, when

that the record supports the trial court’s factual findings. is not required to believe even uncontroverted evidence.”). Upon review, we find accept or reject, in whole or in part, the testimony of any witness or party, and