In re Hampers
| Decision Date | 01 November 2006 |
| Docket Number | No. 2005–128.,2005–128. |
| Citation | 911 A.2d 14,154 N.H. 275 |
| Court | New Hampshire Supreme Court |
| Parties | In the Matter of Marcus J. HAMPERS and Kristin C. Hampers. |
Orr & Reno, P.A., of Concord (James P. Bassett and Judith A. Fairclough on the brief, and Mr. Bassett orally), for the petitioner.
Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the respondent.
The petitioner, Marcus J. Hampers, appeals from a final divorce decree approved by the Superior Court (Brennan, J.). We affirm in part, vacate in part and remand.
The record supports the following. The petitioner and the respondent, Kristin C. Hampers, married in September 1998 and had one child in August 2000. The petitioner sought a legal separation in May 2002. In June 2002, he amended his petition to seek a divorce, alleging that irreconcilable differences caused "the irremediable breakdown of the marriage." Thereafter, the respondent filed a cross-petition for divorce, alleging the fault ground of conduct "to injure health or endanger reason." RSA 458:7, V (2004). In November 2002, the parties entered into a temporary stipulation that awarded them shared physical custody of their child.
The trial occurred over seventeen days in May, June and September 2004. On December 1, 2004, the trial court dismissed the petitioner's petition and granted the respondent's cross-petition, finding that the petitioner's conduct "injured [the respondent's] health and endangered her reason and was the substantial cause of the breakdown of the marriage." Specifically, the court found that the petitioner made threats to the respondent on July 24, 2002, which "were a substantial cause of [the respondent's] emotional and psychological problems[,] which resulted in her temporary loss of custody of [the parties' child] later in August 2002[and] ... marked the irremediable breakdown of the marriage."
The final decree ordered an unequal division of assets with the petitioner receiving substantially more assets than the respondent. In addition to other assets, the decree awarded to the petitioner the marital home (worth approximately $1 million) and the approximately $15 million in assets in his revocable trust; it awarded the respondent over $2 million in assets.
The decree awarded the parties joint legal custody and the respondent primary physical custody of the child. It required the petitioner to pay the respondent $6,599 in monthly child support.
Additionally, the decree awarded the respondent $2,500 in monthly alimony. The court ordered the petitioner to pay alimony from December 1, 2004, until August 1, 2018, at which time the court would review "the question of alimony." The decree also required the petitioner to pay the respondent's past, present and future attorney's fees and costs, guardian ad litem fees, and court-ordered mediator/arbitrator fees.
On appeal, the petitioner argues that the trial court erred when it: (1) granted a fault divorce pursuant to RSA 458:7, V; (2) reduced his custodial time from that provided in the parties' temporary stipulation; (3) calculated his income for child support purposes; (4) awarded the respondent alimony of $2,500 per month for approximately thirteen years; (5) awarded the respondent over $2 million in property distribution and considered "economic parity" as a factor in that property distribution; (6) ordered him to pay the respondent $500,000 of the property distribution in the event of an appeal; and (7) required him to pay the respondent's attorney's fees. We address these arguments in turn.
The petitioner first argues that the trial court erred by granting the respondent's cross-petition for a fault-based divorce because "[t]he overwhelming weight of the evidence compels a finding that the primary cause of the breakdown of the marriage was long-time incompatibility, and that the irremediable breakdown occurred before July[ ] 2002." Whether the irremediable breakdown of the marriage was caused by irreconcilable differences or the petitioner's misconduct was a factual question for the trial court. See Yergeau v. Yergeau, 132 N.H. 659, 661, 569 A.2d 237 (1990). 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 Preston and Preston, 147 N.H. 48, 49, 780 A.2d 1285 (2001).
Although the record supports a finding that "the primary cause of the breakdown was incompatibility," it also supports a finding that the breakdown caused by the parties' incompatibility was not irremediable. Yergeau, 132 N.H. at 662, 569 A.2d 237. There was evidence that the respondent desired to continue the marriage and that, therefore, there was a reasonable possibility of reconciliation. Id. Under such circumstances, it was fitting "for the court to find the subsequent fault [of the petitioner] to be the primary cause of the ultimate marital breakdown and to decree a divorce accordingly." Id.
The testimony of both parties supported a finding that, although they were incompatible, reconciliation was possible up until their July 24, 2002 argument. The petitioner testified that in May and June 2002, he told the respondent that, although he believed that there was a "70 percent chance that we were going to end in divorce," there was "a slim chance of reconciliation." The respondent testified that she did not conclude that the marriage was unsalvageable until the petitioner began threatening her and she became afraid for her physical safety. Even after the petitioner sought a legal separation, the respondent "didn't know what was going on" with the parties' marriage. The respondent testified that, as of June 2002, although she felt emotionally isolated in her marriage, she was willing to remain married for the sake of her son. As she testified: "I was trying everything I could so that when I talked to my son some day, that I could tell him that I did everything possible to prevent what has happened." It was not until the respondent realized that her life and her son's life were "compromised in terms of our safety" that her view changed.
From this evidence, the trial court was entitled to conclude that "the [respondent's] determination was enough to preserve the possibility of reconciliation" even after the petition for a legal separation was filed in May 2002, and that it was only the petitioner's subsequent threats to the respondent "that defeated that possibility, and, with it, finally destroyed the marriage itself." Id. at 662–63, 569 A.2d 237.
Alternatively, the petitioner contends that he was unable to prove that the marriage had irremediably broken down before July 24, 2002, because the respondent failed to disclose many medical and counseling records and expert reports, and produced others late. We review a trial court's decision on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 626, 866 A.2d 962 (2005). To meet this standard, the petitioner must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.
The record does not support the petitioner's contentions. Indeed, the record shows that, consistent with its obligation to protect the privileged nature of the records the petitioner sought, the court reviewed them in camera and, following its review, released those records it deemed relevant. See Desclos v. S. N.H. Med. Ctr., 153 N.H. 607, 903 A.2d 952 (2006). The record further demonstrates that the court found that the records that were produced late "consist of two or three sentences, or observations by the therapist made subsequent to the meeting." The court observed that the records were not "all that complicated" and were not "substantially different from other records" the court had reviewed. The court ultimately found that the petitioner was not prejudiced by the late release of the records. Nevertheless, the court permitted the petitioner's expert to provide rebuttal testimony and a rebuttal report in September 2004 to challenge the testimony provided by the respondent's experts. "[O]n the record before us and given the broad discretion afforded the trial court in managing and supervising discovery and ruling on the conduct of the trial, we find no error." Murray v. Developmental Servs. of Sullivan County, 149 N.H. 264, 268, 818 A.2d 302 (2003).
We next address whether the trial court erred by reducing the petitioner's custodial time from that set forth in the parties' temporary stipulation. The temporary stipulation provided that the parties' child would "be with each party on an equal basis." Under the stipulation, the parties alternated having three and four days per week with the child.
The final decree awarded the parties shared physical custody of their child and designated the respondent as the child's "primary physical custodian." According to the petitioner, the final decree awarded him physical custody of the child thirteen days in a thirty-one-day month, while the temporary stipulation awarded him physical custody of the child fifteen days in a thirty-one-day month. The final decree further provided for a change in the custody schedule when the parties' child attends school full-time. According to the petitioner, pursuant to this changed schedule, he will have physical custody of the child ten days in a thirty-one-day month.
The petitioner argues that changing the custodial schedule from that set forth in the temporary stipulation constituted an unsustainable exercise of discretion because doing so was contrary to the recommendations of the experts retained by the guardian ad litem (GAL). Although he concedes that "the trial court is not required to give presumptive weight to the GAL's recommendation," he...
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