Ebbert v. Ebbert, 81-453
| Decision Date | 04 April 1983 |
| Docket Number | No. 81-453,81-453 |
| Citation | 459 A.2d 282,123 N.H. 252 |
| Parties | Thomas G. EBBERT v. Linda K. EBBERT. |
| Court | New Hampshire Supreme Court |
Holland & Aivalikles, Nashua (Francis G. Holland, Nashua, on brief and orally), for plaintiff Thomas G. Ebbert.
Law Offices of Robert J. Moses, Amherst (Robert J. Moses, Amherst, orally, and J. Alexander MacMartin, Jr., Wilton, on brief), for defendant Linda K. Ebbert.
This appeal involves cross-libels for divorce brought by Thomas Ebbert against Linda Ebbert for adultery, RSA 458:7, II, and by Linda Ebbert against Thomas Ebbert for irreconcilable differences, RSA 458:7-a (Supp.1979). The matter was tried before a Master (Peter J. Bourque, Esq.), who recommended that each party's libel be granted and that each be awarded a decree of divorce on the grounds each alleged. The master also made recommendations concerning the final distribution of the parties' real and personal property and recommended temporary orders relating to child custody and support. The master's recommendations were approved by the Superior Court (Bean, J.), and Thomas Ebbert appealed. For the reasons which follow, we reverse and remand the case for reconsideration in light of this opinion.
The parties, married for approximately thirteen years, have two children and reside in Amherst. At the time of their marriage, it was agreed that Mrs. Ebbert would terminate her employment as a stewardess and devote her time to homemaking and the family. Mr. Ebbert is an airline pilot and his substantial income has been the family's sole source of support throughout the marriage.
It is not disputed that Mrs. Ebbert committed an act of adultery in May 1981. Shortly thereafter, both parties filed their libels for divorce. Mrs. Ebbert essentially alleged that irreconcilable differences between the parties had caused the breakdown of the marriage, long before her act of adultery occurred. Mr. Ebbert, on the other hand, claimed that his wife's adulterous conduct caused the breakdown of the marriage.
In addition to recommending the award of a divorce decree to each party, the master recommended that Mrs. Ebbert be awarded: fifty percent of the net proceeds from the sale of their Amherst home; fifty percent of the proceeds, after certain repayments to accounts in the names of the children, from a sale of land owned by the couple in California; two automobiles and substantial amounts of the couple's personal property in the Amherst residence. Under the decree, Mr. Ebbert was to pay $5,200 of Mrs. Ebbert's current debts, an additional $5,000 in cash, and $2,500 per month for what the master termed "the support of the defendant [Mrs. Ebbert] and the minor children." Mr. Ebbert was awarded the remaining net proceeds from the sale of the couple's real property, certain personal property, household furnishings and tools, two automobiles, the balance of his liquid assets, and certain stocks. He was also ordered to maintain his life insurance policy as well as accident and health insurance for the benefit of his children.
Mr. Ebbert advances two basic claims on appeal: (1) that the master erred in granting both libels for divorce; and (2) that the master's division of property and award of support unfairly favored Mrs. Ebbert and improperly failed to take into account her fault.
We agree that the master erred as a matter of law when he recommended that two decrees of divorce, on both a fault ground (adultery) and the no fault ground of irreconcilable differences, be granted. It is well settled that when the legislature established irreconcilable differences as a no-fault ground for divorce, RSA 458:7-a (Supp.1979), the original thirteen grounds for divorce based on fault were not repealed and thus remain as valid grounds for divorce. Baker v. Baker, 120 N.H. 645, 651, 421 A.2d 998, 1002 (1980); see Dunn v. Dunn, 120 N.H. 662, 663, 421 A.2d 1003, 1003-04 (1980); Douglas, 3 New Hampshire Practice: Family Law § 181 (1982). Thus a party who seeks a divorce on a fault ground cannot be denied the opportunity to litigate on that basis merely because the other party has advanced...
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