2024 N.H. 68, In the Matter of Nadeau & Nadeau

for James and Gail Nadeau. Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief),

the respondent. Welts, White & Fontaine, PC, of Nashua (Israel F. Piedra on the brief), for

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

IN THE MATTER OF MICHELLE NADEAU AND JUSTIN NADEAU

Citation: In the Matter of Nadeau & Nadeau, 2024 N.H. 6 8 Case No. 2023 - 0297 10th Circuit Court - Portsmouth Family Division

THE SUPREME COURT OF NEW HAMPSHIRE

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

things, the above - mentioned real estate assets. Ultimately, after the husband divorce, the wife sought discovery from the husband relating to, among other [¶ 7] The wife filed a petition for divorce on May 8, p. 2 2020. During the

Office bringing a di sciplinary action against the husband. judicial attachment. The Fahey loan also resulted in the Attorney Discipline property, along with other real property, became the subject of a superior court suit in s uperior c ourt against both the husband and the wife; the Hampton [¶ 6] Sometime after the purchase of the Hampton property, Fahey filed

from a client, Shawn Fahey. The wife was not involved with the Fahey loan. attorney, provided $ p. 2 275,000 for the down payment from a loan he received Hampton property, but purchased it in 2018. T he husband, who was an property in Hampton (Hampton property). The parties initially rented the [¶ 5] In 2014, the parties moved from the State Street property to a

divorce to a third party. party. The State Street property was sold during the pend ency of the parties’ transfers of real estate. In p. 2 2013 or 2014, the Rye property was sold to a third Office was investigating whether the husband was involved in fraudulent the transfers when she learned that the New Hampshire Attorney General’s civil ceremony, for little or no consideration. In 2012, the wife became aware of husband’s father was trustee, on June 15, 2009, prior to the parties’ second property and State Street Property had been transferred to a trust, of which the [¶ 4] Unbeknownst to the wife — and perhaps the husband — t he Rye

property). had a 50% interest in another Portsmouth property (Sagamore Avenue Property). The attachment also reflects that the husband and the wife each properties, property in Rye (Rye property) and Portsmouth (State Street to that a greement, as of June 4, p. 2 2009, the husband owned, among other agreement, which neither party sought to enforce. According to an attachment [¶ 3] Two days before the June ceremony, the parties signed a prenuptial

p. 2 2009. wedding had lapsed. The parties had a second civil ceremony on July 18, but learned after the ceremony that the license of the person performing the the record. The parties had a wedding ceremony in Maine on June 6, 2009, [¶ 2] The following facts were found by the trial court or are supported by

discovery purposes only. We affirm. court erred when it added the husband’s parent s to the action as parties for for alimony. In addition, both the husband and his parents argue that the trial p. 3 3

whether certain assets constitute marital property presents a question of law, pursuant to RSA 458:16 - a, II. Id. The trial court’s determination as to Id. Then, the court exercises its discretion to equitably distribute those assets matter of law, which assets constitute marital property under RSA 458: 16 - a, I. Chamberlin, 155 N.H. 1 p. 3 3, 16 (2007). First, the trial court determines, as a the court employs a two - step analysis. See In the Matter of Chamberlin & owned by divorcing parties. See RSA 458:16 - a, I (Supp. 2023). When doing so, [¶ 10] RSA 458:16 - a authorizes the circuit court to distribute property

A. Distribution of Property

argument, below. court). We address the husband’s remaining arguments, and his parents’ standing rule that parties may not have review of issues not raised in the trial Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (articulating long that argument for appellate review, and we therefore decli ne to address it. See Sagamore Avenue property, we conclude that the husband failed to preserve husband argues that the trial court erred in calculating the 50% equity in the when it distributed the parties’ property. See id. Furthermore, while the conclusion that the trial court considered the Fahey s ettlement a greement See id. We also disagree with the husband that the record supports the was indisputably a marital asset, and its decision not to award him alimony. dissipated the pro ceeds of the sale of the parties’ interest in a company that demonstrated reversible error as to the trial court’s ruling that the husband record submitted on appeal, we conclude that the husband has not Based upon our review of the trial court’s order, the relevant law, and the demonstrating reversible error. Gallo v. Traina, 166 N. H. 7 p. 3 37, 740 (2014). number of issues. As the appealing party, the husband has the burden of [¶ 9] On appeal, the husband challenges the trial court’s rulings on a

the parties, both the husband and his parents filed appeals. alimony. After the trial court ruled on several post - decision motions filed by property between the parties unequally and de nied the husband’s r equest for narrative order, which, as relevant to this appeal, distributed the marital thereafter, the trial court issued an 11 - page decree, accompanied by a 5 p. 3 3 - page settlement agreement with the court, along with a motion to seal. Shortly the superior court case brought by Fahey had been resolved. She also filed the and narrative order, the wife filed a “motion to inform” notifying the court that [¶ 8] Following trial, but before the trial court had issued its final decree

purposes only.” to join the husband’s parent s in the divorce proceedings “for discovery failed to comply with discovery orders, the trial court granted the wife’s request p. 4 4

s ee also In the Matter of Kempton & Kempton, 167 N.H. 78 5, 801 (2015) in value of property owned by either or both of the parties.” RSA p. 4 458:16 - a, II(f); either party during the marriage which contributed to th e growth or diminution unequal distribution is an equitable distribution, including “[t] he actions of number of factors for a trial court to consider when determining whether an not be appropriate or equitable. RSA 458:16 - a, II. The statute identifies a distribution of property” unless the court determines that equal division would parties, a trial court is to “presume that an equal division is an equitable [¶ 13] RSA 458:16 - a, II provides that when distributing property between

when it did so. See Chamberlin, 155 N.H. at 16. must determine whether the trial court unsustainably exercised its discretion trial court order presents a question of law for this court). Accordingly, we the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of arriving at an equitable distribution of the remaining marital property. See In sales of the State Street and Rye properties as an analytical step toward the trial court constructively credited the husband with the proceeds from the of the marital estate. However, reading the order as a whole, we conclude that suggest ing that the trial court treated the properties as though they were part remaining within the marital estate.” There are statements in the order estate,” the trial court sought instead to “equitably distribute the property had “jurisdiction to recover property fraudulently transferred out of a marital the wife should the marriage end in divorce. However, uncertain whether it fraudulently transferred these parcels in an effort to protect the property from court noted in its order that it was “likely” that “the husband’s family” had s ee also In the Matter of Muller & Muller, 16 p. 4 4 N.H. 512, 518 (2013). The trial 2009 into trusts of which the husband’s father was trustee. RSA 458:1 6 - a, I; because both properties had been transferred out of the husband’s name in “belonging to either or both parties” at the time the divorce petition was filed [¶ 12] In this case, the State Street and Rye properties were not properties

N.H. at 16. analysis of the characteristics of the asset in question.. . .” Chamberlin, 155 belong to the husband or the wife, individually or collectively, calls for a legal “Whether, at the time a divorce petition is filed, a given asset does or does not property is held in the name of either or both parties.” RSA p. 4 458:16 - a, I. assets, real or personal, belonging to either or both parties, whether title to the property. Marital property includes “all tangible and intangible property and when it concluded that the State Street and Rye properties were marital [¶ 11] We consider first the husband’s assertion that the trial court erred

1. The State Street and Rye Properties

an unsustainable exercise of discretion. Id. which we review de novo, while the equitable division of property is reviewed for p. 5 5

had a second civil ceremony. Both the husband and the wife testified that the y wedding had lapsed; thus less than two months after the first ceremony, they point, the parties learned that the license of the officiant performing the Maine that shortly thereafter they traveled abroad for their honeymoon. At some ceremony before 2 p. 5 50 guests in Maine on June 6, 2009. The husband testified [¶ 16] The wife testified that the parties exchanged vows in a wedding

§ 6 p. 5 57 (Supp. 2024). persons married, tha t they are lawfully married.” Me. Rev. Stat. Ann., tit. 19 - A, respects lawful and consummated with a full belief, on the part of either of the informality in entering the intention of marriage, if the marriage is in other justice, judge, lawyer, marriage officiant or minister or by an y omission or void, nor is its validity affected by any want of jurisdiction or authority in the See RSA 457:36 (2018). Maine law similarly provides that a marriage “is not

were lawfully married. with the belief on the part of either of the parties thereto that they marriage is in other respects lawful and has been consummated or informality in the certificate of intention of marriage, if the in such supposed justice or minister or on account of any omission validity be affected on account of want of jurisdiction or authority of the peace or minister of the gospel shall be void, nor shall its No marriage solemnized before a person professing to be a justice

[¶ 1 p. 5 5] New Hampshire law provides that:

valid. applying the law of either state, we conclude that the June 6 marriage was validity of the marriage. We need not decide this issue, however, because question of whether New Hampshire law or Maine law applies to determine the “legally contracted” in Maine, RSA 4 p. 5 57:3 (2018), but he has not briefed t he argues in a footnote that the June 6 marriage was not valid because it was not not control prior to the parties’ marriage on July 18, 2009. The h usband were never marital property because they were transferred into trusts he did Maine on June 6, 2009. The husband argues, however, that the properties in the prenuptial agreement as assets prior to the parties’ wedding ceremony in [¶ 14] The h usband identified both the State Street and the Rye properties

and declining to read an intent or timing element into RSA 4 p. 5 58:1 p. 6 6 - a, II(f)). 5 8 (2008) (distinguishing “dissipation” of assets from “diminution” of assets, as the marriage was ending. See In the Matter of Martel & Martel, 157 N.H. 53, this provision, a court need not find that a spouse acted with wrongful intent, estate). To support an unequal distribution of the marital estate pursuant to criminal conduct during the marriage had substantially diminished the marital (husband awarded more retirement assets than wife because the wif e’s 6

distributed like any other, even though it no longer exists. 458:1 p. 6 6 - a, courts have held that dissipated property must be wit h the equitable purpose of distribution under statutes like RSA impossible to make an equitable award of property. Consistent permit one spouse to squander marital property and render it equity, we hold that it would be contrary to legislative intent to Given the purpose of RSA 458:16 - a (2004), which is to achieve

(2012). In Brownell, we reasoned that: dissipated assets. See In the Matter of Brownell & Brownell, 1 p. 6 63 N.H. 593, 600 share of the marital estate. This treatment is consistent with how courts treat property and then constructively awarded them to the husband as part of his treated the State Street and Rye properties as if they were existing marital substantial diminution in the value of the marital estate. The trial court inaction (if he failed to correct the transfers in or after 2012), led to a [¶ 18] The husband’s action (if he transferred the properties in 2009), or

the transfers of the State Street and Rye properties w ere ever executed. transferring the properties in 2009. However, no subsequent deeds correcting discovered in 2012, and testified that he did not recall signing the deeds acknowledged that he was upset by the deed transfers when they were he was surprised and upset and “planned to put things right.” The husband investigation testified that when the husb and learned of the transfers in 2012 order that both the wife and the attorney she consulted at the time of the was involved in fraudulent transfers of real estate. The trial court noted in its Attorney General’s O ffice regarding an investigation into whether the husband became aware of the transfers in 2012, when the wife was contacted by the Whether or not the husband was aware of the transfers in 2009, both parties without the wife’s knowledge and potentially without the husband’s knowledge. consideration. The trial court implicitly found that the transfers were made of which the husband’s father was trustee, on June 15, 2009, for little or no [¶ 17] The trial court found that t he properties were transferred to a trust,

diminution was attributable to the husband. those properties out of the marital estate that resulted in its substantial married in Maine on June p. 6 6, 2009. We next address whether the transfer of Street and Rye properties became part of the marital estate when the parties Accordingly, the trial court did not err when it implicitly f ound that the State were lawfully married.” RSA 45 p. 7 7:36; see Me. Rev. Stat. Ann., tit. 19 - A, § 657. “consummated with the belief on the part of [both] parties thereto that they support s the trial court’s implicit finding that the June 6, 2009 marriage was celebrated their wedding anniversary on June 6 each year. The evidence 7

the husband would likely receive a benefit from the transfer of the properties to diminution in the value of the marital estate. Finally, the trial court found that was pending. The transfers of the properties therefore r esulted in a substantial $395,000. T he State S treet property was sold for $5 p. 7 75,000 while the divorce 2009 prenuptial agreement reflected that the value of the Rye property was husband represented that he would “make thi ngs right.” Furthermore, the transfers in 2012 and brought the matter to the husband’s attention, the 2009 that the transfers had been made, and when she became aware of the transfers in 2009, he became aware of the m in 2012. The wife was unaware in the marriage end in divorce, and whether or not the husband was aware of the transferred the parcels in an effort to protect the property from the wife should found that it was “likely that the [husband’s] family” had fraudulently [¶ 20] In this case, regarding the nature of the conduct, the trial court

Martel, 15 p. 7 7 N.H at 5 9.

deems relevant. si milar 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

required to consider factors such as: unequal division of property). Rather, in diminution cases, a trial court is the marriage which contri buted to diminution in the value of property justifies factors for trial court to consider to determine whether action by party during timing. See RSA 458:16 - a, II(f); see also Martel, 15 p. 7 7 N.H. at 58 (identifying cases, diminution cases do not require a trial court to consider intent or applies with equal force in diminution cases. However, unlike dissipation constructively awarding them to the spouse who dissipated those assets treating dissipated assets as if they were existing marital property and then was appropriate because, a s we have explain ed, the reasoning supporting equitable way to divide the marital assets.” (E mphasis added.). This approach that it had “analogize[d] to cases of dissipated assets in determining the most We disagree with the husband’s reading of the order. The trial court stated the marriage is undergoing an irreconcilable breakdown.” (Quotation omitted). for his own benefit and for a purpose unrelated to the marriage at a time when did because “[d] issipation only occurs where one spouse uses marital property “dissipated” assets, and that the trial court erred in treating the properties as it [¶ 19] The husband asserts that the trial court treated the properties as

the marital estate. where, as here, the actions of a spouse result in the diminution in the value of Id. (quotations, citation and brackets omitted). The same reasoning applies p. 8 8

settlement funds and by failing to account for and equitably divide settlement because the trial court “erred by failing to make findings regarding the N.H. 1 (2014), t he husband argues that the trial court order should be vacated [¶ 24] Ci ting our decision in In the Matter of Spenard & Spenard, 167

exercise of discretion. award of the proceeds entirely to the wife does not constitute an unsustainable bodily injur ies she sustained in a motor vehicle accident. We conclude that the wife in this case received $60,000 to $70,000, after the parties separated, for of a verdict in the wife’s gender discrimination lawsuit entirely to the wife). The 149 N.H. 31, 33, 36, 37 (2002) (affirming the trial court’s award of the proceeds was a sustainable exercise of discretion); In the Matter of Letendre & Letendre, (concluding trial court’s award of husband’s lottery winnings to the husband entirety to one party. See Holliday v. Holliday, 139 N. H. 213, 215 - 17 (1994) However, a trial court, in its discretion, may award a particular asset in its property. See In the Matter of Preston & Preston, 147 N.H. 4 p. 8 8, 49 - 50 (2001). [¶ 23] A personal injury award acquired during marriage is marital

should therefore vacate the trial court’s property distribution order. the settlement funds was an unsustainable exercise of discretion, and that we husband argues that the trial court’s failure to account for and equitably divide order and the asset/debt spreadsheet make no men tion of the settlement. The award him one - half of the settlement proceeds. The final decree, the narrative findings of fact and rulings of law, the husband requested that the trial court disclosed the settlement award in her financial affidavit. In his requests for for a back injury she sustained in a 2014 car accident, and that she had not recently received between $60,000 and $70,000 in a personal injury settlement [¶ 22] At trial, the wife testified on cross - examination that she had

2. Wife’s Personal Injury Settlement

parents ’ property rights. court to make any determination regarding the validity of the husband’ s equitable distribution of the remaining marital estate did not require the trial Street and Rye properties to the husband for the purposes of determining an titular owners of the two subject properties.” Crediting the value of the State impacted the rights of third parties” because the husband’s parents “were the court’s “disposition of the State Street and [Rye] properties improperly [¶ 21] Nor are w e persuaded by the husband’s argument that the trial

2012. in transferring the properties in 200 p. 9 9 or to his failure to correct the transfers in to support an unequal distribution of assets due either to the husband’s action court unsustainably exercised its discretion when it applied RSA 45 p. 8 8:16 - a, II(f) his parents. Under these circumstances, we cannot conclude that the trial 9

error affected the outcome of the case. because we agree with the wife that no showing has been made that the a lleged when it joined the husband’s parents as parties “for discovery purposes only,” discovery. We need not decide whethe r the trial court erred as a matter of law person the full panoply of right s afforded parties, including the right to conduct trial court to join a person as a party to a case without also affording the joined his parents to argue that Family Division Rule 2.7 (B) does not authorize the to Circuit Court F amily Division Rule 2. 7 (B). We understand the husband and it had granted the motion to join for the purposes of discovery only, pursuant parents ’ request to authorize an interlocutory appeal, the trial cou rt stated that purposes only,” over the husband’s objection. In denying the husband ’ s husband’s] parents.” The trial court granted the motion, “for discovery parties which are at issue in this case . . . are inextricably connected to [the production and it had “become evident that the finances and asset s of the h usband had been deficient in his discovery responses and document she would be unable to prepare for trial without their joinder because the [¶ 26] In her motion to join the husband’s parents, the wife asserted that

B. Adding Husband’s Parents as Parties for Discovery Only

unsustainably exercise its discretion. See Letendre, 14 p. 9 9 N.H. 31, 33, 36. the award of the proceeds to wife alone, we conclude that the trial court did not settlement, and because there is sufficient evidence in the record to support and de nied the husband’s request to award him half the proceeds of the [¶ 25] Because it is clear from the record that the trial court considered

various F inal O rder s, the Court reiterates that his requests were denied.” respond to o ne of the [husband’s] requests for a finding or ruling in the Court’s also specifically stated that, “[t] o the extent the Court did not specifically its final decree on the petition for divorce or its narrative order. The trial court reviewed the motion to reconsider “in [its] entirety,” and declined to reconsider denying the husband’s motion to reconsider, the court stated that it had erred when it did not s pecifically address the award in its order. In its order filed a motion to reconsider in which he argued, in part, that the trial court Following the issuance of the final decree and narrative order, the husband requested that the trial court award him half of the value of the settlement. requests for findings of fact and rulings of law in which he specifically husband’s request to award him half of the proceeds. The husband submitted overlook the proceeds from the settlement, but, rather, simply declined the In this case, by contrast, it is clear from the record that the trial court did not remanded the case to the trial court to make “specific findings and rulings.” Id. Spenard, 167 N.H. at 7. We therefore vacated the property distribution and husband “did not even disclose the notes as assets o n his financial affidavits.” had made specific findings about certain promissory notes, noting that the funds.” In Spenard, we rejected the husband’s assertion that the trial court p. 10 10

the record that, had the husband himself complied with the discovery requests, “penalized” the husband based upon the actions of his parents. It is clear from with the husband and his parents that this establishes that the trial court parents ’ failure to comply with “reasonable discovery requests,” we disagree requests. Although the trial court order references both the husband’s and his the husband due to the husband’s parents ’ failure to respond to discovery outcome of this case because the trial court drew adverse inferences against joining the parents as parties “for discovery purposes only” affected the [¶ 29] Both the husband and his parents argue that the trial court order

otherwise obtained through subpoenas. wife sought to obtain by moving to join them as parti es could have been adjudicate any claims or issues of the husband’s parents. The information the court in equitably distribut ing property between husband and wife, and not to parents. The order joining the husband’s parents was designed to assist the neither considered nor disposed of any property claims of the husband ’ s trial court’s treatment of the State Street and Rye properties, the trial court equitable distribution of those assets.”). As we discussed in our analysis of the subject to equitable distribution, and then exercises its discretion to make an determines, as a matter of law, what assets are marital property and thus 170 N.H. 247, 250 (2017) (“U nder RSA 458:16 - a, I, the trial court first wife. See RSA 458:16 - a; see also In the Matter of Eckroate - Breagy & Breagy, responsibility to equitably distribute property between the husband and the determining the status of those assets in order to discharge its statutory in this case that the trial court joined the parents for the limited purpose of with which the trial court agreed. It is clear from the record and the pleadings motion, the wife argued that joinder of the parents was necessary, an argument in formation sufficient to determine the status of the assets identified in the and his parents.” Because the husband had not produced in discovery “for further discovery into the convoluted financial matters of [the husband] well as business interests.” The motion also stated that joinder was necessary including but not limited to real estate, trust assets, and financial accounts as transfers of ownership and interests in the marital assets of the parties had “engaged in a lengthy history of questionable and potentially fraudulent [¶ 28] The wife’s motion to join asserted that the husband and his parents

have failed to demonstrate reversible error. arguments made by the parties, we conclude that the husband and his parents review of the trial court’s order, the record submitted on appeal, and the the Matter of Albrecht & Albrecht, 176 N.H. p. 10 106, p. 11 110 (2023). Based upon our of whether the error is grounded upon a constitutional or statut ory right.” In demonstrate how the alleged error affected the outcome of the case, regardless context of a non - criminal appeal, this generally requires the appealing party to burden of demonstrating reversible error. Gallo, 166 N.H. at 740. “Within the [¶ 27] As the appealing part ies, the husband and his parents ha ve the 11

M AC DONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

See Vogel v. Vogel, 137 N.H. 321, 322 (1993). discovery purposes only” are without merit and warrant no further discussion. regarding how they were prejudiced by the trial court order joining them “for [¶ 30] We conclude that the husband’s parents ’ remaining arguments

Albrecht, 176 N.H. at p. 11 110. demonstrated how the alleged error affected the outcome of the case. See husband’s actions. Accordingly, the husband and his parents have not the trial court drew adverse inferences against the husband based upon the it would have been unnecessary to seek discovery from his parents, and that