Azzi v. Azzi
| Decision Date | 27 September 1978 |
| Docket Number | No. 78-084,78-084 |
| Citation | 118 N.H. 653,392 A.2d 148 |
| Parties | Constance AZZI v. Victor AZZI. |
| Court | New Hampshire Supreme Court |
Burns, Bryant, Hinchey, Cox & Shea, Dover (James H. Schulte, Dover, orally), for plaintiff.
James J. Kalled, Wolfeboro, by brief and orally for defendant.
The question in this divorce case is whether the trial court abused its discretion in dividing the parties' property, ordering child-support and awarding custody. We hold there was no abuse of discretion, and dismiss the defendant's exceptions.
The parties married in 1960. They have two children, a son born in 1961 and a daughter born in 1963. The plaintiff filed a libel for no-fault divorce in 1976; the defendant filed a cross-libel. Although they agreed that their assets should be evenly divided, the parties were unable to agree on the value of some assets and on whether certain assets should be excluded from the division. They submitted the dispute to a Master (Robert A. Carignan, Esq.), who held hearings on May 3 and May 26, 1977. On June 10, 1977, the master issued a report recommending that a divorce be decreed and that the plaintiff be awarded custody of both children. The defendant was to pay $225 per week in child support to the plaintiff who waived alimony. The master suggested that each party be entitled to claim one child for federal income tax purposes. The parties were to contribute to the total costs of educating the children even after the children reached the age of majority. The master's report also set forth a scheme for dividing the parties' real and personal property. These and supplementary recommendations issued by the master were approved by the Court (Mullavey, J.) who reserved and transferred the defendant's exceptions.
We have held that in reaching determinations in divorce/child support cases, "it is fundamental . . . that the Court has broad discretion (citation omitted) and that its decision will not be set aside unless 'the evidence demonstrates clearly an abuse' of such discretion." Mangin v. Mangin, 115 N.H. 489, 490, 343 A.2d 636, 637 (1975). We have further held that the "(d) efendant has the burden of showing that the orders were 'improper and unfair.' " Adams v. Adams, 117 N.H. 43, 44, 369 A.2d 196, 197 (1977).
We group defendant's exceptions under three headings:
I. Property division
The defendant first argues that the master erred in failing to make specific findings of the value of certain real and personal property, to wit: the homestead in Durham, New Hampshire; the so-called "Stevens lot" adjacent to the homestead; the household furnishings; and a tract of land in Farmington, New Hampshire. It is true that the master's findings were not as specific as they might have been and that our review would have been facilitated by particularized appraisals of the value of the parties' possessions. See Economides v. Economides, 116 N.H. 191, 357 A.2d 871 (1976). The master's failure to evaluate the parties' property item by item, however, does not constitute error. The record contains sufficient evidence of the value of the parties' assets to enable us to determine whether the property settlement is unjust.
The defendant next argues that the master erred in not granting him the so-called "Stevens lot," a tract of land near the parties' home. According to the defendant, the master's failure to give this land to him violated the master's obligation to divide the real estate equally. We do not agree that the master bore any duty to divide the real estate equally. His task was to view the parties' real and personal property as a whole and propose an equitable distribution. Considering the property settlement in its entirety, we do not think that the master erred in dividing the real estate as he did. See Murphy v. Murphy, 116 N.H. 672, 675, 366 A.2d 479, 482 (1976).
A further objection the defendant makes to the division of real estate is that: "The IRS will deem this a capital gain payable by the husband and taxed to the husband." Yet, the defendant did not raise this point below, he has not demonstrated to this court what, if anything, the alleged tax burden will amount to, and he has not shown that he will bear more of the tax burden than the plaintiff will. Tax consequences should be considered by attorneys and masters in their negotiations or rulings. On the record, we cannot say that the award of the homestead to the plaintiff was erroneous.
Neither did the master err in not crediting the defendant with one-half of the plaintiff's inheritance from her father. At the May 31, 1978 hearing the defendant specifically disclaimed any interest in the inheritance, agreeing that it should not be placed on the scales when the marital property was divided.
More problematic is the master's refusal to take into account a $12,100 debt said to be owed by the defendant to the University of New Hampshire. This sum represents the amount of money paid to the defendant while he was on sabbatical from his teaching position at the university. When his sabbatical ended, the defendant did not resume teaching full time at the university. The university claimed that the duty to teach full time for a year after the sabbatical was a condition subsequent to the defendant's retention of the sabbatical pay, and that therefore the defendant must repay the money.
Defendant's testimony was that he had deposited the $12,100 in various accounts owned by the parties; hence the money appears in the parties' inventories as part of their accumulated assets. Thus, defendant argues that because he must eventually repay the $12,100, he should be credited with one-half of that amount in the property settlement.
The master apparently rejected this argument. We affirm. The defendant alleged that he had originally resisted the repayment demand, believing the university's claim unsupportable, but that he decided to accede to it rather than jeopardize his continuing relationship with the school. The master thus could have determined that the defendant's eventual repayment of the $12,100, if it occurs, will not represent the...
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LeClair v. LeClair
...of discretion when court declined to order divorced parent to contribute toward college costs of adult child); Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 151 (1978) (within court's discretion to order parties to jointly contribute toward reasonable college expenses of their children). R......
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In re Harvey
...that a "moral" obligation for repayment cannot properly be characterized as a debt chargeable to the marital estate. Azzi v. Azzi, 118 N.H. 653, 656–57, 392 A.2d 148 (1978). In Azzi, the University of New Hampshire paid the husband a sum of approximately $12,000 while he was on sabbatical f......
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Gnirk v. Gnirk
...discretion of trial courts to include allowances for college expenses in initial child support orders, see, e.g., Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 151 (1978); Payette v. Payette, 85 N.H. 297, 298, 157 A. 531, 531-32 (1931), or to modify initial support orders to include the pa......
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In the Matter of Harvey
...that a "moral" obligation for repayment cannot properly be characterized as a debt chargeable to the marital estate. Azzi v. Azzi, 118 N.H. 653, 656-57, 392 A.2d 148 (1978). In Azzi, the University of New Hampshire paid the husband a sum of approximately $12,000 while he was on sabbatical f......