In re Dube

• Decision Date: 11 May 2012
• Docket Number: No. 2011–075.,2011–075.
• Citation: 44 A.3d 556,163 N.H. 575
• Parties: In the Matter of Eric J. DUBE and Jeannie Dube.
• Court: New Hampshire Supreme Court

163 N.H. 575

44 A.3d 556

In the Matter of Eric J. DUBE and Jeannie Dube.

No. 2011–075.

Supreme Court of New Hampshire.

Argued: Feb. 15, 2012.

Opinion Issued: May 11, 2012.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the petitioner.

Puckhaber Law Offices, PLLC, of Concord (Diane M. Puckhaber on the brief and orally), for the respondent.

CONBOY, J.

The respondent, Jeannie Dube, appeals the final decree in the divorce action initiated by the petitioner, Eric Dube. She argues that the Derry Family Division ( Moore, J.) erred when it granted Eric a fault-based divorce. In addition, she challenges the trial court's division of the parties' property and its denial of her alimony request. Further, she contests the validity of the stipulated parenting plan. We affirm in part and reverse in part.

The trial court found the following facts. The parties were married in 1997. During their marriage, they purchased a home in Candia, where they lived with their son and one of Eric's children from a previous marriage. In addition, Eric's parents lived in an in-law apartment over the garage of the marital home.

In the later years of their marriage, the parties began to experience marital difficulties. They demonstrated little to no affection toward one another, and Jeannie refused to be intimate with Eric. On November30, 2008, Jeannie learned that Eric had engaged in a single instance of adultery.

Three days later, on December 3, 2008, while the pair discussed their marriage during a telephone conversation, Jeannie told Eric that she was going to kill the parties' minor child, Eric's child from a previous relationship, and Eric's parents. She also told him that she was going to burn down the marital residence. Following their conversation, Jeannie “doused the marital residence and garage with gasoline and attempted to ignite it with a lighter.” In addition, she “destroyed a portion of the marital residence and property with an ax[ ],” and then chased Eric's father around the house with the ax, as he tried to prevent her from lighting the gasoline. Consequently, the next day, Eric obtained a restraining order against Jeannie. As a result of her actions, Jeannie was charged with two counts of attempted murder, one count of attempted arson, and one count of criminal mischief.

On December 9, 2008, Eric filed for divorce, claiming irreconcilable differences caused the breakdown of the parties' marriage. SeeRSA 458:7–a (Supp.2011). Thereafter, he amended his divorce petition and added an alternate ground for divorce, claiming Jeannie “ha[d] so treated [him] as seriously to injure health or endanger reason.” RSA 458:7, V (2004). After he amended his petition, but prior to the final hearing, Jeannie was convicted of one count of attempted arson and one count of criminal mischief and was subsequently sentenced to two to four years at the New Hampshire State Prison for Women. As a result, during the final divorce hearing, Eric asked the court to consider that Jeannie's “conviction of a crime punishable by prison for more than one year constitute[d] fault grounds that caused the breakdown of the marriage.' ” SeeRSA 458:7, IV (2004).

Following the final hearing, the trial court granted Eric a decree of divorce “on the grounds of [Jeannie's] conviction of a crime and imprisonment for more than one year.” In addition, after consideration of the parties' debt and marital assets, as well as Jeannie's incarceration, the court concluded that an unequal division of the marital property in Eric's favor was warranted. Further, the court adopted the parties' stipulated parenting plan, which awarded Eric decision-making and residential responsibility for their minor son, and detailed a plan to facilitate progressively increased contact between Jeannie and the boy. Finally, the court denied Jeannie's request for alimony, finding it “unwarranted.” This appeal followed.

I. Fault–Based Divorce

We first address Jeannie's contention that the trial court erred in granting Eric a fault-based divorce on the grounds of her conviction and subsequent imprisonment. She asserts that Eric is not an “innocent party” because he committed adultery, and, therefore, he is precluded from obtaining a fault-based divorce.

RSA 458:7 (2004) provides in pertinent part:

A divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of the following causes: ...

II. Adultery of either party.

....

IV. Conviction of either party, in any state or federal district, of a crime punishable with imprisonment for more than one year and actual imprisonment under such conviction.

V. When either party has so treated the other as seriously to injure health or endanger reason.

RSA 458:7, II, IV–V (emphasis added). Although the trial court did not make a specific finding that Eric was an “innocent party,” because it granted a divorce on fault grounds, we assume it made such a finding. See Dombrowski v. Dombrowski, 131 N.H. 654, 663, 559 A.2d 828 (1989). We will affirm the trial court's factual findings unless the evidence does not support them or they are legally erroneous. In the Matter of Hampers & Hampers, 154 N.H. 275, 279, 911 A.2d 14 (2006).

In Rockwood v. Rockwood, 105 N.H. 129, 129, 194 A.2d 771 (1963), we considered whether the husband, who was found guilty of adultery, was “the innocent party” and therefore entitled to a divorce. We determined that “innocent” meant “free from guilt.” Id. at 131, 194 A.2d 771 (quotations omitted). We then explained that a spouse cannot be “the innocent party” if he “is guilty of an offense against the other spouse, which would be grounds for divorce.” Id.; see Schwarz v. Schwarz, 427 S.W.2d 734, 739 (Mo.Ct.App.1968) (“[T]he conduct of one party will not prevent him from being adjudged an innocent party unless it be such as to entitle the other party, prima facie, to a divorce.” (quotation omitted)).

Here, the record does not support the trial court's implicit finding that Eric was “the innocent party.” Eric does not dispute his infidelity; yet, he contends that he is still an “innocent party” because Jeannie's conduct, and not his adultery, was the primary cause of the marital breakdown. Eric argues that the parties' agreement to “work through” the affair constituted Jeannie's condonation of his adultery, thus restoring his status as an “innocent party.” The affirmative defense of condonation “is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated.” Tibbetts v. Tibbetts, 109 N.H. 239, 241, 248 A.2d 75 (1968) (quotations omitted). Under the doctrine, “[i]f either party to a marriage thinks proper to forgive the infidelity of the other, it cannot afterwards be set up as a ground of divorce, without evidence of a [further] injury.” Quincy v. Quincy, 10 N.H. 272, 273 (1839).

The record, however, does not support Eric's assertion that Jeannie condoned his infidelity. While she may have agreed to work on their marriage, her conduct in the days immediately following his disclosure does not support a finding that Jeannie forgave Eric's adultery. Two days after his disclosure, Eric received numerous voicemail messages from Jeannie who was “ irate” and at times “just screaming and yelling.” On the third day after his disclosure, she threatened and attempted to kill his family and destroy the marital home. Moreover, during the divorce hearing, Jeannie stated, “I don't think forgiveness was the question at the time. It was what did I—what do I need to do to—if—what did I miss, what did I need to do was what we were—what we were trying to find out.” Thus, the doctrine of condonation is inapplicable here, and therefore, Eric cannot claim the status of an “innocent party.”

Because we conclude that Eric is not entitled to a fault-based divorce, we need not address Jeannie's alternative argument that the cause of the marital breakdown could not have been her conviction since she had not yet been convicted when the divorce petition was filed or amended prior to the final hearing. Nevertheless, we affirm the trial court's decision dissolving the parties' marriage. The record supports a dissolution based upon irreconcilable differences. SeeRSA 458:7–a. Accordingly, we reverse the trial court's decision to the extent that it granted Eric a fault-based divorce; otherwise, we affirm the trial court's decision to grant a divorce.

II. Alimony

Next, Jeannie contends that the trial court erred in denying her alimony. Pursuant to RSA 458:19 (Supp.2011), a trial court may award alimony if:

(a) The party in need lacks sufficient income, property, or both, including property apportioned in accordance with RSA 458:16–a, to provide for such party's reasonable needs, taking into account the style of living to which the parties have become accustomed during the marriage; and

(b) The party from whom alimony is sought is able to meet reasonable needs while meeting those of the party seeking alimony, taking into account the style of living to which the parties have become accustomed during the marriage; and

(c) The party in need is unable to be self-supporting through appropriate employment at a standard of living that meets reasonable needs....

RSA 458:19, (I)(a)-(c). Trial courts have broad discretion in awarding alimony. In the Matter of Peirano & Larsen, 155 N.H. 738, 746, 930 A.2d 1165 (2007). We review the trial court's decision under our unsustainable exercise of discretion standard. Id.

After consideration of the factors enumerated in RSA 458:19, the trial court denied Jeannie's alimony request, finding “that the [p]etitioner [did] not have the ability to pay and that the [r]espondent [did] not have a definitive need for alimony due to her incarceration.” In addition, the court noted that “the [p]etitioner has had to pay a majority of the marital debt since the [r]espondent's criminal conduct ... and will continue to pay during her period of...