In The Matter of Michelle Nadeau and Justin Nadeau

Husband deems unnecessary a response to many of the points in Wife’s brief and rests on the arguments made in his opening brief. However, he does address the following issues:

Wife admits that the trial court made a mathematical error in its calculation of the equity of 1151 Sagamore Avenue. However, she argues that the trial court’s award should be upheld because Husband “created” what she characterizes as a “de minimis” error. This, however, would not excuse the trial court’s error. This Court has permitted appellate review of a trial court error even when it is an “error into which [the appellant] has led the trial court, intentionally or unintentionally.” State v. Cassavaugh, 161 N.H. 90, 99 (2010). The Court should therefore correct the trial court’s error.

More significantly, the trial court’s award to Wife of the Sagamore Avenue property was an unsustainable exercise of discretion. The Sagamore Avenue property was acquired by Husband’s parents in the early 1980s. TR. at 1082. It was sold to the parties to be a business office for Husband. TR. at 1083. The property underwent extensive renovations for that purpose. TR. at 1095. These renovations were paid for by Husband using more than $128, 000 received from his parents. TR. at 1088-89.

At the time of the divorce proceedings, Husband was in the process of converting 1151 Sagamore Avenue into his personal residence and business office. TR. at 1107. It was an unsustainable exercise of discretion for the trial court to deprive Husband of his business office, place of employment, and his ability to have his own residence for he and his children. This injustice is amplified by the fact that Husband was the party responsible for acquiring, improving, and utilizing the property during the marriage. See Hanson v. Hanson, 121 N.H. 719, 720- 21 (1981) (abuse of discretion to award property entirely to wife when value of house primarily attributable to husband). It was an unsustainable exercise of discretion for the trial court to have awarded this property to Wife rather than Husband. The award of 1151 Sagamore Avenue should be vacated along with the rest of the property distribution and awarded to Husband on remand.

In her brief, Wife makes several notable concessions relative to the 507 State Street and 655 Long John Road properties.

Wife agrees that both properties were titled in the name of third parties at the time of divorce. O PP. BR. at 13. She concedes that the properties were both transferred “from husband’s ownership to a trust controlled by his father” in June 2009. OPP. BR. at 10. Wife also admits that she at least learned of the transfers from Husband to his father’s trust in 2012. OPP. BR. at 10, 16.

As discussed below, the trial court correctly found that the properties were transferred prior to the commencement of the marriage. If the transfers did happen during the marriage, it would still be error for the trial court to consider the properties in its property distribution. a. The trial court’s order should be vacated because, as Wife concedes, the properties were not marital assets at the time of divorce In her brief, Wife concedes that the State Street and Long John Road properties were not owned by either Husband or Wife at the time of divorce. OPP. BR. at 19; see also OPEN. BR. at 22-33. Rather, they were owned by a “trust controlled by [Husband’s] father.” OPP. BR. at 10. As such, Wife agrees that the two properties were not marital assets at the time of divorce and acknowledges that the trial court could therefore “not distribute the two properties among husband and wife.”1See OPP. BR. at 19. This is a significant admission. The trial court purported to do exactly that: “distribute” the two properties to Husband. In its narrative order, the trial court stated that “[Husband] is awarded the sales proceeds from the sale of Unit 2.” APPX. at 43. Similarly, with regard to 655 Long John Road, the trial court wrote: “This property, or any remaining beneficial interest, is awarded to [Husband].” APPX. at 61. Indeed, the trial court found that it “considers the sale of [507 State Street in January 2022, during the pendency of the divorce proceedings] to have been a violation of the non-hypothecation orders in place at the time of the sale.” APPX. at 13.

The above statements of the trial court indicate that it did in fact consider the two properties to be “marital assets” subject to distribution at the time of divorce. The sale of 507 State Street could not have been considered a “violation of the non- hypothecation orders” unless the court found that 507 State Street was the property of Husband. See RSA 458:16-b; Elter- Nodvin v. Nodvin, 163 N.H. 678, 680 (2012).

In short, the trial court treated the State Street and Long John Road properties as marital property and purported to “award” them to Husband. Wife herself admits that the properties were not marital assets at any time during the divorce

Husband’s purported discovery violations have no bearing on the question of law of whether the two properties were marital assets subject to distribution: as Wife agrees, they were not. and therefore not subject to distribution. The trial court’s decision was therefore erroneous and the property division should be vacated. b. To the extent the trial court relied on some other legal theory to assign the value of State Street and Long John Road properties to Husband in the divorce, this was error Wife attempts to justify the trial court’s treatment of the State Street and Long John Road properties by arguing that the trial court “ha[d] the right to consider the value of marital assets that have been diminished by the parties at any point during the marriage....” OPP. BR. at 19.

Wife’s brief acknowledges, but does not dwell on, the fact that the trial court appeared to justify its disposition of the two properties by relying on a heretofore unseen equitable power of a divorce court to penalize a spouse for actions taken before the marriage even began. O PP. BR. at 19; but see In the Matter of Muller & Muller, 164 N.H. 512, 518 (2013) (recognizing that family division’s authority extends only to “property belongs to the divorcing parties”). Unsurprisingly, Wife does not seriously attempt to support the trial court’s nebulous rationale. Instead, she proposes that this Court “may affirm the decision on alternative grounds, by recognizing the enforceability of the parties’ June 6, 2009 wedding [ceremony]....” O PP. BR. at 19.

Wife submits that if the properties were conveyed after the parties legally married, the conveyances constituted impermissible “diminishment” of the marital estate. Wife’s “alternative” justification of the trial court’s decision fails for two reasons. First, as the trial court found, the parties were not married at the time the State Street and Long John Road properties were transferred out of Husband’s ownership. Second, even if Husband did own the properties at some point during the marriage, the doctrine of diminution would not apply. c. The trial court’s finding that the June 6, 2009 ceremony was not lawful is supported by the evidence The trial court heard testimony and legal argument regarding the legal date of the parties’ marriage. See TR. at 349, 513; APPX. at 131 (Husband’s “Memorandum of Law Regarding Effective Date of Marriage”); OPP. ADD. at 14 (Wife’s “Reply Memorandum of Law Regarding Effective Date of Marriage”). It then made the following critical finding: “the June 6, 2009 ceremony was not legally binding.” APPX. at 7.

Before the trial court, Wife argued that the June 6 ceremony was legally binding because Wife supposedly “believed the marriage was valid at the time it was consummated after the June 6th ceremony.” OPP. ADD. at 16 (citing RSA 457:36). In other words, Wife made the same argument before the trial court that she now makes on appeal regarding the legal date of marriage. Compare OPP. ADD. at 16 with OPP. BR. at 16-18. Despite this argument, the trial court found that “the June 6, 2009 ceremony was not legally binding.” APPX. at 24. Wife has not appealed that finding.

In any event, there was no trial evidence supporting the assertions Wife now raises in her brief. Nothing in the trial transcript supports that Wife (or Husband) contemporaneously believed that the June 6 ceremony was legally binding. The only “evidence” Wife is able to marshal in support of her appellate argument is an unverified memorandum of law submitted to the trial court. OPP. ADD. at 46. There is no competent evidence in the record supporting the statement in Wife’s brief that “[i]t was not until after the parties’ June 6, 2009 ceremony, when the couple were on their honeymoon, [that] they learned Attorney Watson’s Maine license was no longer valid.” OPP. BR. at 17. Indeed, the names “Thomas Watson” and “Timothy Black” were not uttered during the six day trial.

Even if Wife had entered into evidence the assertions she now relies upon, the trial court made a contrary finding, and that finding is supported by the record. Wife herself testified at trial that June 6, 2009 was the date of her wedding but that the “date of [her] legal marriage” was not until “[l]ater on... in July.” TR. at 135. In fact, on her own financial affidavit, executed under oath, Wife listed her date of marriage as July 18, 2009. A PPX. at 236. The trial court’s finding that the “June 6, 2009 ceremony was not legally binding” is supported by the evidence and thus must stand. Hence, the first prong of Wife’s argument — that the properties were transferred during the parties’ marriage — fails. 2 d. There was no diminution of the marital estate The second part of Wife’s argument is that Husband’s transfer of properties constituted a “diminution” of the marital estate. OPP. BR. at 19. Even if Wife could establish that the properties were transferred during the marriage, her diminution argument would still be unavailing.

“RSA 458:16-a, II(f) provides that the court may consider, as a special circumstance justifying an unequal division of assets, ‘the actions of either party during the marriage which contributed to the growth or diminution in value of property owned by either or both of the parties.’” In the Matter of Martel & Martel, 157 N.H. 53, 57-58 (2008). In Martel, the Supreme Court distinguished “dissipation” from “diminution, ” and held that RSA 458:16-a, II(f) “does not require that the conduct occur in anticipation of divorce as it allows the trial court to consider ‘the actions of either party during the marriage.’” Id. at 58. Wife argues that “[H]usband diminished the marital estate when he transferred the 507 State Street and Long John Road propert[ies] to trusts controlled by his father without consideration.” OPP. BR. at 20.

There is no indication, however, that the trial court relied on RSA 458:16-a, II(f) in its decision. Pursuant to statute, the trial “court shall specify written reasons for the division of property which it orders.” RSA 458:16-a, IV. If the “parties make specific requests for findings and rulings... the court should state its reasons and make specific findings and rulings supporting its decision, regardless of whether it decides to make an equal or unequal distribution of the property.” Magrauth v. Magrauth, 136 N.H. 757, 763 (1993). Here, Husband submitted requests for findings of fact and rulings of law. APPX. at 117. Specific to paragraph II(f) of RSA 458:16-a, the Supreme Court provided in Martel that: “in applying RSA 458:16-a, II(f) to support an unequal distribution of assets due to a spouse’s conduct which resulted in a diminution in value of property, a trial court must consider factors such as: conduct which contributed to the growth in value of property; the nature of the conduct; the other spouse’s knowledge of the conduct; whether the conduct diminished the total marital assets to such an extent that the other spouse is unable to maintain a similar lifestyle following divorce; and any other factor the court deems relevant.” Martel, 157 N.H. at 59 (emphasis added).

Here, the record fails to show that the trial court intended to treat Husband’s actions as a diminution of marital assets under RSA 458:16-a, II(f). Certainly there was no explicit reliance on that particular statute by the trial court, and the trial court’s order does not show that it properly weighed the various factors discussed by the Supreme Court in Martel.

If the trial court had considered RSA 458:16-a, II(f), and the Martel factors, it would have been compelled to reject Wife’s diminution theory. Certainly, Husband did not “diminish the total marital assets to such an extent that the other spouse is unable to maintain a similar lifestyle following the divorce.” Martel, 157 N.H. at 59. On the contrary, Wife’s wealth increased as a result of her marriage to Husband. More importantly, the trial court found that Wife’s “knowledge of the conduct, ” id., arose in 2012. A PPX. at 29-30, 59. Despite learning of the 2009 transfers of 507 State Street and 655 Long John Road in 2012, Wife took no steps to address that fact. APPX. at 59. This is particularly striking because another property — 1151 Sagamore — was transferred to joint title during this timeframe. 3 APPX. at

29. Even under the Uniform Fraudulent Transfer Act (referenced by the trial court in its order) claimants must assert their claims “within four years after the transfer was made... or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant.” RSA 545-A:9. Wife’s failure to pursue the transferred properties for ten-plus years dooms her belated claim of dissipation. e. Conclusion: State Street and Long John Road In sum, the trial court lacked authority to make orders relative to the 507 State Street and 655 Long John Road properties because the properties were never owned by either spouse during the marriage. The trial court erred by treating the properties as marital assets despite the fact that legal title was held by third parties for the entirety of the marriage. Tacitly recognizing the trial court’s error, Wife attempts to justify the lower court’s decision on alternative grounds: that Husband “diminished” the marital estate. Her argument, however, is unavailing. First, her argument depends on establishing that the properties were actually transferred during the parties’ marriage, and the trial court’s finding to the contrary was supported by the evidence. Second, even if the real estate was conveyed during the marriage, the trial court did not and could not make a finding of impermissible diminution. It is uncontested that Wife learned of the properties’ transfers in 2012, and she failed to take any action thereafter. Thus, for the reasons stated in Husband’s opening brief and in this reply brief, the trial court’s property division should be vacated and this matter remanded for further proceedings.

Husband briefly adds the following in response to Wife’s brief:

Wife acknowledges that her personal injury settlement was a marital asset subject to distribution. However, she argues that a court has discretion to award an entire personal injury settlement to an injured spouse.

The problem in this case is that the trial court did not make any orders regarding the settlement. It appears to have overlooked it entirely. This was inexcusable error considering Husband specifically asked the trial court to award him half the asset in his proposed orders. A PPX. at 121. b. Third party order and alimony With regard to the trial court’s alimony order and its designation of Husband’s parents as third “parties for discovery only, ” Wife argues that this Court should ignore problematic parts of the trial court’s order and affirm.

In making these arguments, Wife engages in speculation. This Court cannot simply ignore certain portions of a trial court’s order during appellate review. Where a trial court references certain facts as part of its decision, the Court at a minimum must presume that these facts may have played in a role in the trial court’s order. The Court must therefore remand this case to the lower court for further consideration. See In the Matter of Nassar & Nassar, 156 N.H. 769, 780 (2008).

For the foregoing reasons, and to prevent manifest injustice, the respondent-appellant respectfully requests that this Court reverse the decision of the trial court, vacate the property distribution and alimony orders, and remand for further proceedings and/or a new trial.