In The Matter of Teresa Marie Miller-Waller and Jimmy Neal Waller

[PDF page 1] THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No. 2016-0563, In the Matter of Teresa Marie Miller-Waller and Jimmy Neal Waller, the court on October 18, 2017, issued the following order: The respondent, Jimmy Neal Waller, appeals an order of the Circuit Court (Ryan, J.) denying his motion to modify his alimony obligation to the petitioner, Teresa Marie Miller-Waller, based upon her remarriage. He argues that the trial court erred by: (1) not finding that the remarriage was, as a matter of law, a substantial change in circumstances warranting the termination of alimony pursuant to Eaton v. Eaton, 90 N.H. 4, 7 (1939), and not shifting the burden to the petitioner to prove that terminating alimony would be inequitable; (2) finding that he waived the right to seek modification of alimony pursuant to the parties’ stipulated final divorce decree, and basing its decision solely upon the terms of the decree; (3) not allowing him to discover or introduce evidence addressing the economic impact of the remarriage, and not considering the parties’ circumstances at the time of the divorce or the petitioner’s current financial condition; (4) not allowing him to call the petitioner or his son as witnesses; and (5) finding him in contempt for suspending his payment of alimony. We affirm. RSA 458:14 (2004) provides: “Except as otherwise provided in RSA 458:19, I and VII, the court, upon proper application and notice to the adverse party, may revise and modify any order made by it, may make such new orders as may be necessary, and may award costs as justice may require.” A party seeking to modify an alimony order must show that a substantial change in circumstances has occurred since the trial court issued that order, and that the change in circumstances renders the alimony amount either improper or unfair. See In the Matter of Doherty & Doherty, 168 N.H. 694, 701 (2016). A party’s remarriage may constitute a substantial change in circumstances warranting the modification of an alimony obligation. See Norberg v. Norberg, 135 N.H. 620, 623-24 (1992) (discussing Eaton); Peterson v. Buxton, 108 N.H. 77, 78 (1967) (citing Eaton for the proposition that, although remarriage of either party does not as a matter of law require modification of child support, it is a circumstance to be considered by the trial court in deciding a motion to modify child support). One reason for requiring proof of changed circumstances is to prevent re-litigation of issues based on the same evidence. Lafond v. Lafond, 119 N.H. 512, 513-14 (1979). Changes in circumstances that were both anticipated and foreseeable when the parties negotiated a support order are not sufficient to warrant modifying the order. Doherty, 168 N.H. at 701; Gnirk v. Gnirk, 134 N.H. 199, 2015 (1991). [PDF page 2] 2 We will not overturn the trial court’s denial of a request to modify alimony absent an unsustainable exercise of discretion. In the Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010). Likewise, we review trial court decisions concerning the management of discovery and judicial proceedings, and whether to hold a party in contempt, for unsustainable exercises of discretion. In the Matter of Sawyer & Sawyer, 161 N.H. 11, 18 (2010); In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007); In the Matter of Hampers & Hampers, 154 N.H. 275, 280 (2006). To establish that the trial court unsustainably exercised its discretion, the respondent must show that its decision was clearly untenable or unreasonable to the prejudice of his case. Hampers, 154 N.H. at 280. The interpretation of a trial court order, however, including a stipulated divorce decree, is a question of law, which we review de novo. In the Matter of Salesky & Salesky, 157 N.H. 698, 703 (2008). We construe a trial court order with reference to the issues it was meant to decide, and in light of the facts and circumstances known to the parties and court at the time of the order, as well as those future facts or circumstances then known or reasonably anticipated to occur. Id. at 703; Laflamme v. Laflamme, 144 N.H. 524, 527 (1999). We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are tainted by error of law. Canaway, 161 N.H. at 289. The parties in this case divorced by way of a stipulated decree, approved by the trial court on November 5, 2009. Pursuant to its terms, the respondent was to pay alimony of $2,084 every other week beginning October 2, 2009, and continuing through December 31, 2015. Beginning January 1, 2016, the decree obligated the respondent to pay alimony of $1,500 “every other week for a period of ten years or until the Petitioner remarries, whichever last occurs.” The petitioner in fact remarried in October 2015. Thus, under the express language of the decree, the respondent is obligated to pay bi-weekly alimony of $1,500 for the period of ten years beginning on January 1, 2016. Additionally, the decree obligated the respondent to pay the petitioner 50% of any bonus income he received through December 2015 “[a]s an additional property settlement.” The respondent paid alimony in accordance with the decree until November 5, 2015. On November 6, 2015, he filed the present motion to modify alimony, arguing that a decline in his income, an increase in the petitioner’s income, and the petitioner’s remarriage constituted unforeseen changes in circumstances that justified terminating alimony. He further requested that the trial court modify the final decree so as to provide that the $1,500 bi-weekly alimony obligation would terminate on the petitioner’s remarriage or ten years, whichever occurred first, and to terminate a separate obligation to pay a portion of his military pension on the basis that it constituted alimony, and not property. On February 8, 2016, the petitioner cross-moved for contempt, asserting that the respondent had not paid alimony since November 5 and had never paid any bonus income under the decree, and that his suspension of alimony and failure to pay bonus income were in contempt of the decree. [PDF page 3] 3 Less than one week before the final hearing on the pending motions, the trial court held a telephonic hearing to resolve a discovery dispute. We note that the respondent has provided neither a transcript of the telephonic hearing nor the relevant discovery requests. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (appealing party bears burden of providing record sufficient to decide issues being raised). Subsequently, the respondent moved to reconsider certain rulings the trial court apparently made during the telephonic hearing and to continue the final hearing, asserting that, during the telephonic hearing, the court “advised that it would not entertain any claims as to the Petitioner’s need for alimony based upon the language of the Decree of Divorce and the Court’s interpretation that the Respondent therefore waived any right to claim that the Petitioner’s remarriage or any income associated therewith” justified modification, that the court “would only permit the Respondent to argue a modification on the basis that the Respondent does not have the ability to pay,” that the court would not compel discovery “that would speak to the Petitioner’s ‘need’ for alimony... and/or... requir[e] the Petitioner” to produce discovery regarding her husband’s income or contribution to household expenses, and that, absent such evidence, the respondent was not prepared to go forward with the final hearing. The trial court denied the motions for reconsideration and a continuance. At the outset of the final hearing, the respondent orally renewed his motions to continue and to reconsider the trial court’s discovery rulings. In denying the oral motion, the trial court explained its prior rulings as follows:... [A]s I stated last week, I’m willing to take [the respondent’s] argument [that the petitioner no longer needs alimony due to her remarriage] into consideration after today, and after opposing counsel has had the time to look at the memorandum of law [that the respondent had filed regarding the issue], and everything else. That today, based on the language in the stipulated final decree, that your client agreed to pay alimony in the amount of $1,500 every other week for ten years, or until the Petitioner remarries, whichever occurs last. A... reasonable reading of that is... he’s waiving the right to bring in need based upon her remarriage, because it was reasonably foreseeable that she would get remarried, and would have more income.... But at this point, that’s the ruling of the Court. As I said last Thursday, I’m willing to take in the — I’m willing to — and I haven't had a total opportunity to read your memorandum of law. My... denial of your motion for reconsideration was based on reconsidering it for the purposes of... having to continue this hearing.... [PDF page 4] 4 So as I said,... all we’re really going forward today is —... based on my reading of the stipulated final decree, is the issue of [the respondent’s] modification based upon a substantial change, being a substantial change to his income. Because it was reasonably foreseeable that when he signed [the stipulated decree] that [the petitioner’s] income would increase upon her remarriage. Or not her income. The situation would change. Would, in terms of her overall living situation would change upon her remarriage. That’s reasonably foreseeable. And he waived that. If you want to argue that her income has changed substantially, and that’s a change, I can understand that. But the remarriage, and the fact that she now has someone else in her life who helps support her, to me the language — and I understand the case law — but the language doesn’t — the language of this stipulated final decree is what it is. So, we’re going forward on that today........ All we’re going to add today is [the respondent’s] change in income, and whatever his other circumstances happened in his life that would affect his ability to pay. That’s what we’re going forward on. The hearing went forward with the respondent’s testimony. During his testimony, he introduced evidence concerning the parties’ income and expenses, including each party’s income and expenses at the time of the divorce and at the present time. With respect to the petitioner, the respondent testified that she works for a federal governmental agency, a job she held at the time of the divorce, that her pay level rank under the federal pay scale is a “GS-12, step 8,” and that at the time of the divorce it was a “GS-12, step 2.” After the respondent’s testimony concluded, the trial court asked the parties, “So where are we then?” The respondent’s trial counsel indicated that she intended to call the respondent’s son to testify “to his father’s financial circumstances,” but would call no other witnesses. When the petitioner objected to the son testifying, the respondent’s counsel explained that “he has spent a lot of time with his father and... knows that he’s not showing up in a brand new vehicle, knows that he’s not spending exorbitant amounts on [the son] and his wife for Christmas, knowing where he lives and seeing where he lives and what he’s spending his money on.” The trial court indicated that it would allow the testimony. The petitioner’s trial counsel stated that she intended to call only the petitioner, and did not anticipate her examination to be lengthy. The respondent’s counsel then stated that if she were “able to cross-examine [the petitioner] with regard to need, [she] may need a good hour.” The trial court [PDF page 5] 5 interjected, “And again, when I’m talking about need,... — the issue as I understand the discovery was you are looking for her now husband’s financial information.” The respondent’s counsel replied, “[W]e were also looking for her bank statements, her credit card expenditures, information that we could see what she’s spending her money on and whether or not there does reflect a need. Yes, in addition,... I was asking for her husband’s information because he’s part of the household....” After further discussion, the trial court ordered the petitioner to produce financial documentation from 2014 to the present, but not “anything regarding... her new husband’s income.” The trial court then indicated that it would schedule an additional three-hour hearing. Thereafter, the petitioner produced the ordered discovery. Prior to scheduling the additional hearing, however, the trial court issued its order denying the respondent’s motion to modify and granting the petitioner’s cross-motion for contempt. In its order, the trial court reasoned, in part: When a modification of an existing alimony order is requested, the burden of proof is on the party requesting the modification. The moving [party] must prove that there has been an unforeseeable and substantial change in financial circumstances since the original alimony order, making the current alimony amount either improper or unfair. While the existing alimony order is very unusual, it is an agreement that [the respondent] entered into voluntarily and knowingly and it was approved by the Court.... By agreeing to pay alimony to [the petitioner] for 10 years or until she remarried, whichever occurred last, [the respondent] essentially waived the right to argue that a modification of the alimony should be based at least in part in [the petitioner] no longer needing it because she had remarried.... [The respondent] has failed to prove that there has been an unforeseeable and substantial change in the financial circumstances of either party since the original agreed upon alimony award making the current alimony award either improper or unfair. (Citations omitted.) With respect to whether there had been an unforeseeable and substantial change in the respondent’s financial circumstances, the trial court found that his income had decreased by approximately 5% since 2014, but that his alimony obligation had decreased by 28%. Thus, the trial court concluded that the respondent’s “financial circumstances have changed since the divorce, but not significantly and not for the worse.” With respect to the petitioner’s finances, the trial court found that her monthly income had increased from $6,327 in 2009 to $7,256. Finally, the trial court found that, although the respondent had earned bonus income since the divorce, he had “not pa[id the petitioner] any part of any bonus income that he received... from the date of the divorce through December 31, 2015.” The trial court found that the respondent “had the ability [PDF page 6] 6 and legal obligation to pay” the petitioner her share of the bonus income, but that he had “knowingly and willfully failed and refused to pay” the petitioner her share of the bonus income, and that he was “in contempt for his failure to do so.” The respondent moved for reconsideration, arguing that when the prior hearing had concluded, he had not yet called all of his witnesses or presented all of his evidence, and that the court had stated that it would reschedule the hearing so that he could “finish his case and call his witnesses,” and so that the petitioner could testify. He additionally argued that the court had ordered the petitioner to produce financial records, that she had produced such records, and that he “expected to utilize same in continuing and concluding his presentation.” He asserted that he had initially sought discovery in order to establish that the petitioner no longer needed alimony because she “was remarried, shared expenses with her new husband and earned at least $30,000/yr more than she had earned at the time of the divorce.” He did not, however, articulate how the records that the petitioner produced differed from the evidence already before the court, or how he intended to use them “in continuing and concluding his presentation.” Finally, the respondent argued that the trial court had misunderstood certain legal authorities, including Eaton, in denying his motion to modify alimony. The trial court denied the motion for reconsideration, and this appeal followed. We first address the respondent’s arguments concerning Eaton. In Eaton, the wife remarried approximately two months after the parties divorced pursuant to a stipulated decree requiring the husband to pay alimony. Eaton, 90 N.H. at 4. The trial court dismissed the husband’s petition to terminate alimony, ruling in part that the wife’s remarriage, alone, did not justify modifying the decree. Id. at 4-5. In reversing, we described the rule in New Hampshire as follows: The rule prevailing here is held to be that when the [wife] has no care and custody of minor children, her new marriage is ground entitling the [husband] to relief from any further [alimony] payments, unless she can show extraordinary circumstances or a special situation making it clearly and definitely inequitable for the alimony to cease. The special exceptions are not readily defined or enumerated, and they are to be passed upon only as issue arising upon them is presented in the particular facts and features of a given case. No more is now decided than that a lower scale of support in the new marriage is an insufficient reason for the continued payment of any part of the alimony. Id. at 7. We reasoned that, because the wife’s new marriage “bestow[s] upon her the right of support from a new spouse,” “[w]hen the support of children is not a consideration, a legal obligation to support another man’s wife is at least anomalous.... [The wife] ought not to have two supports at the same time.” Id. We further explained that the wife’s “new marriage is her voluntary entrance into [PDF page 7] 7 a new status changing her former one, and the incidents of it follow. Fairly, she has elected to give up the benefits of her unmarried state for those of her new marriage.” Id. at 7-8. We note that Eaton was decided under a different statutory scheme, one predicated upon “anachronistic assumptions about marital relations and female dependence.” Cheshire Medical Center v. Holbrook, 140 N.H. 187, 190 (1995) (discussing common law doctrine of necessaries). The respondent construes Eaton to mean that an alimony recipient’s remarriage is a substantial change in circumstances as a matter of law, entitling the obligor to terminate alimony unless the recipient proves “extraordinary circumstances or a special situation” rendering the termination of alimony inequitable. Eaton, 90 N.H. at 7. Thus, he contends that upon remarriage, the burden shifts to the alimony recipient to prove that it would be inequitable to terminate alimony, and that, because the petitioner here remarried, and because she did not testify, the trial court erred by not terminating alimony. We disagree. Assuming, without deciding, that the language in Eaton suggesting that a former wife without custody of minor children must show “extraordinary circumstances or a special situation” to prevail on the husband’s motion to terminate her alimony based on her remarriage is consistent with the current statutory scheme, we further observed in Eaton: As has been said, exceptional circumstances may create an equity in special cases for continuance of the alimony or some part of it.... In some cases in which it appeared that the [obligor] was aware of the [recipient’s] purpose to marry again when the alimony was decreed, relief from paying alimony after the new marriage has not been granted. That feature is missing here. The case is barren of any evidence to show that the stipulation for the decree was made in any contemplation of the parties that the [wife] might marry again. Id. at 8 (emphasis added). Thus, nothing in Eaton is inconsistent with more recent cases holding that “[c]hanges to a party’s condition that are both anticipated and foreseeable at the time of the decree cannot rise to the level of a substantial change in circumstances sufficient to warrant modification of an alimony award.” Laflamme, 144 N.H. at 528-29. To the contrary, Eaton expressly recognized that when the alimony recipient’s remarriage during the alimony term was actually contemplated at the time the parties negotiated the stipulation, the recipient’s remarriage, alone, cannot justify modifying alimony. In this case, the petitioner’s remarriage during the alimony term was not merely contemplated by the parties when they negotiated the stipulated decree; they in fact expressly incorporated her remarriage into the terms of the decree. Under these circumstances, we conclude that the trial court did not err by ruling that the respondent failed to prove that the petitioner’s remarriage constituted an unforeseeable and substantial change in circumstances justifying the [PDF page 8] 8 modification of alimony. See id. (reversing trial court decision to modify alimony on grounds that the obligor had retired and was required to sell assets to satisfy alimony, ruling that, because those circumstances were actually anticipated at the time of the divorce, the change in circumstances was in fact foreseeable). To the extent the respondent argues that the trial court erred by finding that he “waived” the right to seek modification of alimony based upon remarriage, see Norberg, 135 N.H. at 624 (holding that, under RSA 458:14, trial court always has authority to modify alimony, even if the parties, in their stipulation, expressly waive the right to seek modification), we do not construe the trial court’s order as basing its decision strictly upon waiver. Nor did the trial court base its decision solely upon the terms of the stipulated decree, fail to consider the parties’ circumstances at the time of the divorce, or fail to consider the petitioner’s current financial circumstances. To the contrary, when the order is read in context, it is clear that the trial court considered: (1) the language of the decree to find that the petitioner’s remarriage was actually anticipated and, thus, was not an unforeseeable substantial change in circumstances; and (2) both parties’ finances at the time of the decree and at the present time to find that there was no “unforeseeable and substantial change in the financial circumstances of either party” that would justify modifying alimony. See Doherty, 168 N.H. at 701 (in considering motion to modify alimony, trial court must consider changed circumstances of both parties, and take into account all circumstances, including the terms of the stipulation). We conclude that the evidence supports the trial court’s decision. Although the record shows that the respondent’s monthly base salary is approximately $583 less than it was at the time of the decree, his alimony obligation is also $584 less than it was in 2009. Moreover, as the petitioner observes, although her monthly income has increased by $929, it has done so foreseeably pursuant to a federal regulatory scheme. See 5 U.S.C. § 5335 (2012); 5 C.F.R. § 531 subpt. D (2017). We conclude that the trial court sustainably exercised its discretion by denying the respondent’s motion to modify alimony. To the extent the respondent argues that the trial court erred by not compelling discovery “concerning the impact of [the petitioner’s] marriage upon her present need for alimony,” because the trial court properly ruled that her remarriage was a foreseeable and anticipated circumstance, we conclude that it sustainably determined that such discovery was not relevant. To the extent he argues that the trial court erred by not allowing him to call the petitioner or his son as witnesses, we note that he did not advise the court, either at the hearing or in his motion for reconsideration, that he intended to call the petitioner, and that his offer of proof established only that his son would have provided cumulative testimony regarding his financial circumstances. Moreover, even if the respondent had intended to call the petitioner, he did not articulate in his motion for reconsideration what the financial records that she produced revealed, and what specific relevant evidence he anticipated introducing through her [PDF page 9] 9 testimony. Under these circumstances, we cannot say that the trial court’s decision not to hold a further hearing was clearly untenable or unreasonable to the prejudice of the respondent’s case. Hampers, 154 N.H. at 280. Finally, we reject the respondent’s argument that the trial court erred by finding him in contempt for suspending his payment of alimony. We note that the trial court expressly found the respondent in contempt because he “knowingly and willfully failed and refused to pay [the petitioner] her share of his bonus income,” a finding he does not now challenge. (Emphasis added.) Nowhere in the order does the trial court expressly base the contempt finding upon the suspension of bi-weekly alimony. Even if the order were construed to base the contempt finding upon the nonpayment of alimony, however, because the evidence establishes that the respondent unilaterally suspended his payment of alimony without court approval, we could not say that the contempt finding constituted an unsustainable exercise of discretion. Williams v. Williams, 129 N.H. 710, 713 (1987) (observing that, because the husband ceased paying alimony, without court approval, “under the mistaken assumption that his ex-wife’s remarriage automatically terminated his duty to” pay alimony, he risked “being held in contempt if the trial court had determined that he was obligated to make such payments”); Eaton, 90 N.H. at 8 (stating that, unless the decree expressly provides for termination of alimony upon remarriage, the obligor’s duty to pay alimony continues until modified by the trial court). Affirmed. DALIANIS, C.J., and HANTZ MARCONI, J., and SMUKLER, J., retired superior court justice, specially assigned under RSA 490:3, concurred. Eileen Fox, Clerk