In The Matter of Gregory Husband and Ellen Husband

In Case No. 2016-0621, In the Matter of Gregory Husband and Ellen Husband, the court on November 30, 2017, issued the following order:

The petitioner, Gregory Husband (husband), appeals an order of the Circuit Court (Garner, J.; Cooper, Marital Master) denying his motion to reopen his divorce from the respondent, Ellen Hurst f/k/a Ellen Husband (wife), to modify the property division. He contends that the trial court erred by: (1) not reopening the divorce; (2) making inconsistent findings of fact that were against the weight of the evidence; and (3) awarding the wife attorney’s fees. We affirm.

We first address whether the trial court erred in declining to reopen the divorce to modify the property division. Property distributions or stipulations decreed by a court are not retained under the continuing jurisdiction of the court and will not be modified unless the complaining party shows that the distribution is invalid due to fraud, undue influence, deceit, misrepresentation, or mutual mistake. Shafmaster v. Shafmaster, 138 N.H. 460, 464 (1994).

We review the trial court’s decision regarding modification of a property division under our unsustainable exercise of discretion standard. In the Matter of Aube & Aube, 158 N.H. 459, 466 (2009); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). We will uphold the trial court’s decision unless the record does not support it or it is tainted by error of law. Aube, 158 N.H. at 466.

In this case, the husband argues that he presented evidence of “multiple misrepresentations” sufficient to reopen the divorce settlement. To be actionable there must be misrepresentation of a material fact and justifiable reliance. See Hair Excitement v. L’Oreal U.S.A., 158 N.H. 363, 369 (2009).

Although the trial court granted the husband’s request for findings that the wife: (1) “had undisclosed e-Bay income” that she did not include on her 2012 financial affidavit; and (2) failed to list her PayPal account on her 2012 and 2013 financial affidavits, the husband cannot show that he reasonably relied upon these errors because the record supports that he knew about the assets and receipts of which he now complains at the time of the divorce, two years before his motion to reopen. See DePalantino v. DePalantino, 139 N.H. 522, 525 (1995) (stating that husband’s failure to provide details on financial affidavit regarding his pension about which wife knew was not misrepresentation because he complied to best of his ability and believed pension had no value); Labbe v. Labbe, 137 N.H. 53, 56 (1993) (stating that property settlement could not be reopened on basis that, at time of divorce, wife did not know value of husband’s pension when husband provided all required information and wife knew pension existed and did not seek information as to its value).

At the 2012 temporary hearing, the husband’s attorney stated that “there is additional income earned by [the wife] that is not listed on her financial affidavit... she has an eBay hobby where she goes to yard sales, she goes to auctions, she goes to church fairs, things like that, purchases items and sells them generally for more money on eBay.” At the hearing on the motion to reopen the divorce, the husband testified that, at the time of the divorce, he knew about the wife’s eBay transactions and that she had boxes of items from yard sales and auctions throughout the house. At the same hearing, the wife testified that, during the marriage, all the money from her eBay transactions was transferred from her PayPal account into the parties’ joint account, to which the husband had access.

The husband argues that, although he knew about the wife’s eBay transactions and the boxes of items associated with them, he had no obligation to discover their amount or value because she was obliged to disclose them on her financial affidavits. But see DePalantino, 139 N.H. at 525; Labbe, 137 N.H. at 56. However, regardless of the husband’s duty to conduct discovery, he failed to establish that the undisclosed receipts or the value of the items in the boxes were material.

Although the wife had at times during the marriage received more money from eBay transactions, which she placed into the parties’ joint account, the trial court found that, “at the time of the Parties’ separation and for the balance of [2012], [her] total trading activities were approximately $700.00, less than $2.00 per day.” At the hearing on the motion to reopen, the wife testified that, as of the temporary hearing, her PayPal account contained $92.38. Also at the hearing on the motion to reopen, the husband testified that his discovery had revealed that, when the parties entered into the final stipulation, the PayPal account had a zero balance.

Similarly, the wife testified that the boxes contained items of no value, which she gave away or donated. She testified that her last eBay transaction prior to the January 2013 final divorce order occurred in October because she had nothing left worth selling. The husband agreed in the final stipulation that the wife would receive all the contents of the boxes, which she testified she included in the valuation of her personal property on her 2012 financial affidavit. The wife testified that she doubted whether overall her eBay transactions netted more than she had paid for the items she purchased.

We conclude that the wife’s alleged omissions on her affidavits were not material. The cases from other jurisdictions upon which the husband relies involved material non-disclosures. See Billington v. Billington, 595 A.2d 1377, 1378-79 (Conn. 1991) (finding husband committed fraud by listing value of real estate on financial affidavit at $225,000 when he had received written offer for $380,000 for parcel); Zaino v. Zaino, 818 A.2d 630, 634 (R.I. 2003) (stating that husband’s actual assets were “far in excess” of his disclosures during divorce); Franke v. Franke, 674 N.W.2d 832, 847 (Wis. 2004) (stating husband failed to disclose “a material change in the value of the company”); cf. Pospisil v. Pospisil, 757 A.2d 655, 658 (Conn. App. Ct. 2000) (declining to reopen divorce based upon wife’s failure to disclose her intent to remarry because it was “a mere expectation and not a certainty”).

The husband argues that the trial court’s findings that the wife failed to disclose eBay income and her PayPal account show that she violated: (1) RSA 458:15-b, I (Supp. 2016), which was not enacted at the time of this divorce; (2) Family Division Rule 1.25-A, which requires parties in a divorce to provide each other with financial affidavits as part of mandatory disclosure, prior to the initial hearing; and (3) Family Division Rule 2.16, which requires parties to file financial affidavits prior to a hearing on support or property division.

However, this is not a situation in which a party failed to complete a financial affidavit. Cf. In the Matter of Rohdenburg & Rohdenburg, 149 N.H. 276, 279 (2003) (stating that trial court committed clear error by accepting incomplete financial affidavit). Rather, the husband contests the accuracy of the wife’s affidavits without showing the materiality of her omissions. The wife testified that she completed the financial affidavits to the best of her ability. See Rohdenburg, 149 N.H. at 278 (stating that parties have duty to complete all sections of financial affidavit to the best of their ability).

To the extent that the husband argues that any violation of the family division’s rules requires reopening a property settlement, he does not cite, nor are we aware of, any authority to this effect. See id.; Fam. Div. R. 1.25-A(D)(1) (providing that if party does not provide mandatory disclosure, trial court “may impose sanctions”); Fam. Div. R. 2.16(B) (stating that “[i]ntentional failure to disclose any asset” on financial affidavit is “subject to appropriate action by the Court”); Fam. Div. R. 1.2 (“As good cause appears and as justice may require, the family division may waive the application of any rule, except where prohibited by law.”).

To the extent that the husband argues that the trial court’s decision not to reopen the divorce violated his due process rights, he did not raise this issue in the trial court, see Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004), and he does not develop it in his brief, see State v. Chick, 141 N.H. 503, 504 (1996).

Accordingly, we conclude that the trial court’s finding that the husband “failed to demonstrate any basis for modifying the Property Settlement” was supported by the evidence and not legally erroneous. See Aube, 158 N.H. at 466. We next address whether the trial court’s findings of fact were inconsistent. The trial court rejected the husband’s requested findings that the wife’s eBay transactions were a business. This was supported by the wife’s testimony that her eBay transactions were a hobby, not a business. We note that, in the 2012 hearing, the husband’s attorney also characterized the wife’s eBay transactions as a hobby.

The husband argues that denying his requested findings that the wife operated an eBay business while granting his requested findings that she failed to list business income and assets on her financial affidavits was inconsistent. We disagree. Although the wording of the requested findings, which the trial court granted, was that the wife “failed to disclose any business assets” on her affidavit, we understand the trial court to mean that she had no business and, therefore, no business assets to disclose. See In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (stating that interpretation of trial court order is question of law, which we review de novo). For the same reason, the trial court reasonably denied all the husband’s requested findings that referred to the wife having a business. Granting the requested finding that the wife had not disclosed her PayPal account did not contradict the finding that she did not operate an eBay business. PayPal accounts are available to individuals.

Similarly, the finding that the wife had not disclosed her PayPal account, which contained less than $100, did not mandate granting the husband’s requested finding that the trial court “relied upon [the wife’s] incomplete, false, and misleading [2012] financial affidavit.” This requested finding contained inferences that the trial court was not required to make. We note that the trial court did grant the husband’s requested finding that it relied upon the wife’s 2012 financial affidavit in making its temporary order.

Granting the requested finding that the wife “had undisclosed e-Bay income which she did not reveal in her... 2012 Financial Affidavit” appears inconsistent with denying the requested finding that the wife “failed to fully and completely disclose all her income on her... 2012 sworn financial affidavit.” However, any inconsistency does not affect our analysis because we assume above that the trial court found that the wife did not fully disclose her eBay income on her 2012 financial affidavit.

To the extent that the husband argues that the trial court’s findings were against the weight of the evidence, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence. Aube, 158 N.H. at 465. We note that the trial court’s order stated that it relied upon the parties’ demeanor.

Finally, we address the award of attorney’s fees to the wife. We will not overturn the trial court’s decision concerning attorney’s fees absent an unsustainable exercise of discretion. Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 30 (2017). To warrant reversal, the discretion must have been exercised for reasons clearly untenable or to an extent clearly unreasonable to the prejudice of the objecting party. Id. We defer to the trial court’s decision regarding attorney’s fees. Id. If there is some support in the record for the trial court’s determination, we will uphold it. Id.

A trial court may award attorney’s fees to a party when litigation is instituted or unnecessarily prolonged through the other party’s oppressive, vexatious, arbitrary, capricious, or bad faith conduct or when the other party’s position is patently unreasonable. LaMontagne Builders v. Brooks, 154 N.H. 252, 259 (2006). When a party’s position is patently unreasonable, his unjustifiable belligerence or obstinacy is treated as a variety of bad faith and made just as amenable to redress through an award of counsel fees as would be the commencement of litigation for the sole and specific purpose of causing injury to an opponent. Keenan v. Fearon, 130 N.H. 494, 502 (1988).

In this case, the trial court found that the husband’s position was patently unreasonable and that he had commenced and prolonged the action “without any reasonable basis in fact provable by evidence or any reasonable claim in the law as it is or as it might be arguable to be.” See id. at 502; Pugliese v. Town of Northwood, 119 N.H. 743, 752 (1979) (requiring specific finding to support attorney’s fees award). It found that the husband was aware of the wife’s boxes of items and the PayPal account prior to the divorce. Yet, he did not challenge their alleged absence from her financial affidavits until two years after the divorce.

The husband argues that he had no duty to raise this issue because the wife had a duty to disclose her income and assets. But see DePalantino, 139 N.H. at 525; Labbe, 137 N.H. at 56. However, with this knowledge, he could not establish that he justifiably relied upon the wife’s financial affidavit. Cf. Kierstead v. State Farm Fire & Cas. Co., 160 N.H. 681, 689 (2010) (stating, in context of estoppel, that reliance is not reasonable if, at the time of representation, party claiming reliance knew or should have known that representation was materially incorrect or misleading).

The husband argues that the trial court’s grant of his requested findings that the wife had “e-Bay income” that she did not include on her 2012 financial affidavit and a PayPal account that she did not list on her 2012 or 2013 financial affidavit established that his action had merit. He further argues that the court necessarily found that he had “prove[n] a prima facie case that [the wife] failed to disclose all required financial information during the divorce.” However, the husband’s motion required him to show that the omissions were material. See Hair Excitement, 158 N.H. at 369. The trial court could have reasonably concluded that the husband’s pursuit of his action was patently unreasonable because he had produced no evidence of the value of the items in the boxes, the PayPal records showed that the amount in that account was small, and any reliance he placed upon the wife’s financial affidavits was not reasonable because he knew about the items and the PayPal account. Cf. Shafmaster, 138 N.H. at 463, 466 (stating wife, attorney, and financial advisor did not know about significant increase in value of husband’s assets). To the extent that he argues that his action was meritorious simply because he established that the wife had violated certain family division rules, we disagree. See Fam. Div. R. 1.2.

We conclude that the record supports the trial court’s determination that the husband’s action to reopen the divorce was patently unreasonable. See Fat Bullies, 170 N.H. at 30.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.