Hodgins v. Hodgins

• Decision Date: 01 July 1985
• Docket Number: No. 84-445,84-445
• Citation: 126 N.H. 711,497 A.2d 1187
• Parties: Bernice C. HODGINS v. Elwin B. HODGINS, Jr.
• Court: New Hampshire Supreme Court

Page 1187

497 A.2d 1187

126 N.H. 711

Bernice C. HODGINS v. Elwin B. HODGINS, Jr.

No. 84-445.

Supreme Court of New Hampshire.

July 1, 1985.

Gregoire, Calivas, Morrison & Gray, Dover (Douglas C. Gray, orally, and Anthony S. Hartnett, Dover, on brief), for plaintiff.

Sanders & McDermott P.A., Hampton (Wilfred L. Sanders, Jr., orally, and Lawrence M. Edelman, Hampton, on brief), for defendant.

BROCK, Justice.

The plaintiff in this divorce action, Bernice Hodgins, appeals from a final order recommended by a Master (Stephanie T. Nute, Esq.) and approved by the Superior Court (Contas, J.), as modified after rehearing and approved by Gray, J. The principal issues before us are: (1) whether the award of alimony to the plaintiff was adequate, and (2) whether the master, in distributing the parties' property, took proper account of Mr. Hodgins's pension plan. We affirm on the first issue and remand for further findings of fact on the second.

The parties were married on March 7, 1959. Mr. Hodgins has been an airline pilot since 1962. In 1983, his income was approximately $130,000. Mrs. Hodgins worked as a secretary prior to her marriage, and as a part-time secretary for five years in the 1960's. In late 1980 she began working weekends as a clerk at Exeter Hospital. In 1983 she acquired a license to sell real estate, and since then has worked full-time selling real estate, in addition to her work at the hospital. Her income in 1983 was $8,206.08.

Mrs. Hodgins filed for divorce on September 16, 1982. The master found that a divorce should be granted her due to "treatment of the Plaintiff by the Defendant to seriously injure health or endanger reason." See RSA 458:7, V. The final decree, as modified after rehearing, awarded Mrs. Hodgins $250 per week in alimony. Mrs. Hodgins was also awarded real and personal property valued in excess of $125,000, and was ordered retained as principal beneficiary on two life insurance policies issued to Mr. Hodgins. Mr. Hodgins received property valued at less than $40,000. He retained, however, the rights to his airline retirement pension, subject to a proviso whereby, after Mr. Hodgins's retirement, any alimony due to Mrs. Hodgins would be paid out of the pension proceeds if other sources were inadequate.

Although Mr. Hodgins has not yet retired, his right to his pension is fully vested; i.e., he cannot lose it even if his employment with the airline terminates before retirement. The master found, despite some evidence to the contrary, that the pension had "cash surrender value, redemption value, lump sum value and value realizable after death." She did not assign a specific monetary amount to these values, but granted the plaintiff's request for a finding that the pension had a "present value" in excess of $150,000. The divorce became effective on June 12, 1984.

"Notwithstanding the numerous considerations involved, trial courts have broad discretion in matters involving alimony and property distribution, and we will uphold their decisions unless there was an abuse of that discretion." Marsh v. Marsh, 123 N.H. 448, 451, 462 A.2d 126, 128 (1983).

We find no abuse of discretion in the award of alimony here. There was evidence that, at the time of hearing, Mrs. Hodgins's income plus alimony was not sufficient to meet her needs, "in light of the relatively high standard of living enjoyed by the parties during the marriage and the defendant's ability to pay." Russman v. Russman, 124 N.H. 593, 596, 474 A.2d 1017, 1019 (1984). We note, however, that the plaintiff had only begun to work full time a few months before the hearing. On this record, the master could have found the plaintiff to be capable of earning enough additional income, through her recently acquired job as a seller of real estate, to make up any shortage. See Parker v. Parker, 122 N.H. 658, 662, 448 A.2d 414, 416 (1982).

We will not consider the plaintiff's argument that a higher alimony award was called for by the master's finding of fault in the defendant. That issue was not raised by objection, exception or motion in the trial court, and is thus not properly before us. Daboul v. Town of Hampton, 124 N.H. 307, 309, 471 A.2d 1148, 1149 (1983). We will also not consider the argument that the master improperly vacated an order attaching the defendant's wages due to an arrearage in alimony payments. The arrearage has been paid and the question is moot.

We now turn to the question of the property distribution. By statute, the trial court may make such a distribution of property "as may be deemed just...." RSA 458:19. We have construed this to mean that, while property must be distributed equitably, it need not always be distributed equally. See Grandmaison v. Grandmaison, 119 N.H. 268, 271, 401 A.2d 1057, 1059 (1979).

A variety of circumstances may justify an unequal distribution; e.g., the fact that the marriage was of short duration, see Rahn v. Rahn, 123 N.H. 222, 225, 459 A.2d 268, 269-70 (1983); the association of a particular asset exclusively with one party since before the marriage, Grandmaison supra, or its recent acquisition through one party's family relationship, Henderson v. Henderson, 121 N.H. 807, 810, 435 A.2d 133, 135 (1981); the parties' relative ability to support themselves, Buckner v. Buckner, 120 N.H. 402, 404-05, 415 A.2d 871, 873 (1980); the need of one party to provide a home for minor children, Comer v. Comer, 110 N.H. 505, 508, 272 A.2d 586, 587-88 (1970); the need to assure both parties' security for the future, MacDonald v. MacDonald, 122 N.H. 339, 342, 443 A.2d 1017, 1018 (1982); and the existence of fault, Ebbert v. Ebbert, 123 N.H. 252, 255, 459 A.2d 282, 284-85 (1983). It follows, however, that in the absence of any such special circumstances the distribution should be as equal as the court can make it. See generally Rahn, supra, 123 N.H. at 225-26, 459 A.2d at 269-70. If, in a particular case, the court concludes that an unequal distribution of property is warranted, it should state its reasons and make specific findings and rulings supporting its decision.

We must therefore address the question of what consideration Mr. Hodgins's pension can be given in the distribution of property here. Our prior holdings have recognized that an unmatured pension, particularly when it is fully vested, is an asset that should be considered in any equitable property distribution. MacDonald, supra 122 N.H. at 341-42, 443 A.2d at 1018; see also Baker v. Baker, 120 N.H. 645, 648-49, 421 A.2d 998, 1001 (1980); Azzi v. Azzi, 118 N.H. 653, 657, 392 A.2d 148, 150 (1978).

We have also recognized, however, that when "retirement benefits do not have value realizable after the husband's death, the ability of the trial court to allocate them in an equitable division of property is most difficult." Baker, supra 118 N.H. at 648, 421 A.2d at 1000 (citation omitted). We have further held that:

"When pensions are in issue, the parties must provide the master or trial court with more specific...