2024 N.H. 69, In re Estate of Pelton

D ivision of the Circuit Court (Hersh, J.) disagreed with the administrator. On which constitutes cause for divorce.” See RSA 560:19 (2019). The P robate justifiably living a part from the respondent because she was “guilty of conduct “abandoned” the decedent, see RSA 560:18 (2019), and that the decedent was respondent’s claim. Specifically, the administrator ar gue d that the respondent argue d that the surviving spouse statute, RSA chapter 560, barred the purported marriage, the administrator of the Pelton estate, Tracy Shep he rd, married Lincoln Burnham (Lincoln). Pointing to the respondent’s subsequent marr ied to the decedent, and they never divorced. She later purportedly entered the estate case claiming to be a surviving spouse. The respondent was [¶1] R oger Lee Pelton died intestate. The respondent, Tina Burnham,

for the respondent. Bragdon, Baron & Kossayda, PC, of Keene (Elana S. Baron on the brief),

Tracy Shepherd, self - represented party, on the brief.

Citation: In re Estate of Pelton, 2024 N.H. 69 Case No. 2023 - 0606 5th Circuit Court - Newport Probate 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

560:18 provides: erred by finding that the respondent did not “willingly abandon” Pelton. RSA [¶7] We first address the a dministrator’s argument that the trial court

matter of law. In re Estate of Dow, 174 N.H. 37, 41 ( p. 2 2021). decree unless it is unsupported by the evidence or plainly erroneous as a reasonably made.” I d. Consequently, we will not disturb the probate division ’ s are final unless they are so plainly erroneous that such findings could not be statute. S ee RSA 567 - A:4 (2019). “The findings of fact of the judge of probate [¶6] Our standard for reviewing probate division decisions is set forth by

applying RSA 560:18 and RSA 560:19. We address these arguments in turn. [¶5] On appeal, the ad ministrator asserts that the trial court erred in

intestate estate.” RSA 561:1, I(e) (Supp. p. 2 2023). surviving spouse will receive “the first $100,000, plus 1/ 2 of the balance of the issue” “one or more of whom are not issue of the surviving spouse,” the surviving spouse in the case of intestacy. W hen a decedent has “surviving [¶4] RSA 561:1, I, grants a statutory share of the decedent’s estate to a

II. Analysis

unsuccessfully sought reconsideration. T his appeal followed. circuit court denied the a dministrator’s motion. The a dministrator inheriting from the estate as a surviving spouse. Following a hearing, t he Spouse.” The a dministrator filed a motion to estop the respondent from Information” form in the circuit court and entered the case as a “Surviving a portion of his estate, the respondent fi led a “New Case Participant daughters, submitted his estate for probate. Believing that she was entitled to [¶3] After Pelton’s death, the a dministrator, one of Pelton’s three

13, p. 2 2022. Pelton’ s home and moved in with Lincoln. P elton died intestate on December home. After the purported marriage to Lincoln, the respondent moved out of In September 2013, the respondent purportedly married Lincoln at Pelton’s decided to keep their marriage a secret. They lived together from 2008 to 2013. October 2010, Pelton and the respondent were married in Maine. The two [¶2] The trial court found or the record supports the following facts. In

I. Background

trial court. We affirm in part, vacate in part, and remand. appeal, the administrator largely re - asserts the arguments made before the p. 3 3

because such survivor was or had been guilty of conduct which was justifiably living apart from the surviving husband or wife If, at the time of the death of either husband or wife, the decedent

“bigamy” and ad ultery. RSA 560:19 provides: respondent from inheriting a surviving spousal share because she engaged in [¶10] The ad ministrator next argues that RSA 560:19 bars the

174 N.H. at 41. unsupported by the evidence or plainly erroneous as a matter of law. See Dow, Accordingly, the trial court’s conclusion regarding RSA 560:18 is not and decedent wife agreed to live apart prior to the decedent’s death). statute did not apply to divest the husband’s spousal share when the husband se e also Foote v. Nickerson, 70 N.H. 496, 51 8 - 1 9 (190 0) (holding that the whether [the husband] abandoned his wife without her consent or approval.”); the other spouse defeats a claim of abandonment. Id. (“The issue . . . [is] as a matter of law make out a case of abandonment.” Id. Therefore, c onsent of 6. We explained that merely “cohabitat [ing] with another woman . .. does not wife to live apart did not constitute statutory abandonment. Clark, 71 N.H. at interpreted the statute to conclude that an agreement between a husband and 1891. Compare RSA 560: 18 with PS c h. 196 § 18 (1891). In Clark, we [¶9] The abandonment statute has remain ed unchanged since at least

conclusion is correct. abandonment as it is defined in New Hampshire law.” The trial court’s trial court determined that “[s]uch an arrangement vitiates a claim of supports this finding. Thus, re lying on Clark v. Clement, 71 N.H. 5 (1901), the otherwise agreed with R espondent ’s subsequent life choices.” The record inference that, for whatever reason, the decedent tacitly consented and/or [¶8] The trial court found that “the evidence supports the reasonable

to the context of the same statute”). s h ould be inconsistent with the manifest intent of the legislature or repugnant (explaining that RSA 21: p. 3 3 applies to all statutes “unless such construction law. ...”); In re Guardianship of Madelyn B., 166 N.H. 453, 458 (2014) construed to be gender - neutral for all purposes throughout New Hampshire relationship... including without limitation . . . “husband,” “wife,” . . . shall be See also RSA 21:3 (2020) (“Gender - specific terms relating to the marital

as she may have given to him in her will. any interest or portion in her estate, real or personal, except such of three years next preceding her death, he shall not be entitled to not been heard from, in consequence of his own neglect, for the term himself from her, or has willfully neglected to support her, or has If a husband has willingly abandoned his wife and has absented p. 4 4

there is “conclusive” evidence of an affirmative defense to adultery. See id. respondent e ngaged in adultery. The trial court may then consider whether agree that the evidence supports the trial court’s conclusion that the condition. On remand, it should. W ith respect to the second condition, we [¶13] The trial court made no finding with respect to RSA 560:19’s first

defense must be “conclusive.” Gove I, 98 N.H. at p. 4 474. interpreting RSA 560:19, we have s tated that evidence of such an affirmative evidencing a full, free and voluntary forgiveness”). In the context of 239, 241 (1968) (explaining t hat condonation is a “question of intent.. . aff irmative defenses, such as condonation. See Tibbetts v. Tibbetts, 109 N.H. both conditions are satisfied does the analysis consider the claiming spouse’s two conditions. Gove v. Crosby, 100 N.H. 380, 381 (1956) (Gove II). Only after the decedent is required.”). The burden is on the administrator to prove these because such a cause existed . . . indicating that some decision on the part of 469, 472 (1954) (Gove I) (“[T]he decedent is required to have been living apart conditions which must exist at the time of death.” Gove v. Crosby, 98 N.H. “justifiably living a part” and “guilty conduct” — to be “interdependent divorce.” RSA 560:1 9. We have described the statute’s two conditions — survivor was or had been guilty of conduct which constitutes cause for “decedent was justifiably living apart [from the surviving spouse] because such its plain language, the statute requires, in relevant part, a finding that the [¶12] We have interpreted RSA 560:19 to require a different analysis. By

Decedent to seek a divorce for cause.” for divorce, it did not need to decide “w hether sufficient grounds existed for the court also concluded that because the decedent had not commenced an action decedent “impliedly consented to the R espondent ’s l ifestyle choices.” T he trial adultery. However, the court found that the evidence supported that the trial court drew “the reasonable inference” that the respondent engaged in not. See RSA p. 4 458:7 (2018). For the purposes of analyzing RSA 560:19, t he [¶11] Adultery is conduct that constitutes cause for divorce; bigamy is

will of the deceased. said decedent, except such as may be given to such survivor by the entitled to any interest or portion in the real or personal estate of constitutes cause for divorce, such guilty survivor shall not be p. 5 5

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

warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). administrator’s remaining argument and have concluded that it do es not proceedings consistent with this opinion. We have considered the [¶14] Accordingly, we vacate and remand to the trial court for