In re Letendre

• Decision Date: 31 December 2002
• Docket Number: No. 2001–536.,2001–536.
• Citation: 149 N.H. 31,815 A.2d 938
• Court: New Hampshire Supreme Court
• Parties: In the Matter of Peter LETENDRE and Linda Letendre.

149 N.H. 31

815 A.2d 938

In the Matter of Peter LETENDRE and Linda Letendre.

No. 2001–536.

Supreme Court of New Hampshire.

Argued Oct. 9, 2002.

Opinion Issued Dec. 31, 2002.

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

John A. Macoul, of Salem, by brief and orally, for the respondent.

BRODERICK, J.

The petitioner, Peter Letendre, appeals the divorce decree issued by the Salem Family Division (Reardon , J.) awarding the respondent, Linda Letendre, alimony, health insurance coverage and an unequal interest in the marital estate. We affirm.

The parties were married in 1982. The respondent did not graduate from high school, and although she worked periodically outside the home during the marriage, she devoted most of her time to maintaining the parties' household and caring for their two children. Throughout the marriage, the petitioner worked for Letendre Moore & O'Connell, Inc. (LMO), of which he is president and a one-third owner.

When LMO was formed in 1978, each of the three owners received fifty shares of stock in the corporation. In 1984, the LMO shareholders adopted a stock redemption agreement to provide a buyout mechanism in the event that a shareholder died or sought to sell his stock. The agreement contains no restrictions on selling shares to a third party. The shareholders set the initial stock redemption price at $4,000 per share, and, beginning in 1992, they met annually to determine current share valuation. In 2000, they set the stock redemption price at $6,785.40 per share.

LMO is debt-free and rents office space from LMO Trust, in which the petitioner is also a one-third owner. The LMO Trust distributes its earnings annually to the three LMO shareholders. In addition to his regular salary and the annual distribution from the LMO Trust, the petitioner receives corporate contributions towards a profit-sharing plan, an annual bonus, and health and life insurance benefits. In 1999, the petitioner realized $134,878 in compensation and earnings.

During the marriage, the respondent was a party to a gender discrimination lawsuit against a Massachusetts country club, to which the parties belonged. In October 1999, she was awarded a verdict of $278,600 against the club. To date, the respondent has not received any payment, and the verdict is on appeal in Massachusetts.

In November 1999, the parties separated and the petitioner filed for divorce on grounds of irreconcilable differences. The respondent filed a cross-petition alleging fault. She also served interrogatories upon the petitioner requesting information about his anticipated expert witnesses, to which the petitioner responded "Unknown at present." In March 2000, the trial court conducted a pre-trial conference and ordered all discovery to be completed by August 15. In June, the respondent served a "Further Request for the Production of Documents to the Petitioner," which contained a request for documents to be submitted by the petitioner's experts, including business appraisals and valuations. The petitioner failed to respond, and the respondent filed a motion in limine seeking to preclude the petitioner from introducing at trial any appraisals, reports or other expert testimony not properly disclosed pursuant to Superior Court Rule 35(f) or by the August 15 deadline. The court conducted a hearing and granted the motion. After a three-day final hearing in September 2000, the trial court granted a divorce on fault grounds, finding that the petitioner's verbal misconduct towards the respondent during their seventeen-year marriage caused her serious injury.

At the time of the hearing, the petitioner was fifty-four years of age and the respondent was forty-eight. They owned two houses unencumbered by any mortgage. Their primary residence had an appraised value between $220,000 and $280,000, and their rental property in Rhode Island was appraised between $125,000 and $135,000. In addition, they had various investment and retirement accounts, profit-sharing benefits, and educational accounts. The educational accounts, valued at approximately $310,000, were established for the educational expenses of their children. The respondent had one retirement account in her name, which was valued at approximately $10,000. The remaining accounts, valued at approximately $1,228,000, were either in the petitioner's name or held jointly by the parties. Additionally, the parties owned a one-third interest in the LMO Trust and its assets, including the real estate occupied by LMO.

The trial court ordered joint legal custody of the parties' minor child, with primary physical custody awarded to the respondent, and further ordered the petitioner to pay child support. It also required that the parties' educational accounts be maintained for both children.

In dividing the marital estate and awarding alimony, the trial court specifically noted that it took into consideration the fault of the petitioner, the length of the parties' marriage, the respondent's ability to acquire future assets, the respondent's needs and the petitioner's ability to pay. Accordingly, it awarded the respondent alimony of $3,000 per month until she either died or remarried and ordered the petitioner to maintain health insurance for her until she was able to obtain her own coverage through employment or remarriage. In addition, the court awarded her the retirement account that was in her name, credited to her half of any assets or sums removed by the petitioner since the commencement of the divorce proceedings, and awarded to her sixty-five percent of the parties' retirement, profit-sharing and other accounts after allowing the respondent to withdraw $56,000 from those accounts to reflect the parties' one-third interest in the LMO Trust. The court also awarded the respondent the marital home and the Rhode Island real estate, and the petitioner was awarded the parties' one-third interest in the assets of the LMO Trust. Finally, the court awarded the respondent the verdict from the Massachusetts action.

With regard to the value of the petitioner's LMO stock, the court heard testimony from the petitioner that the stock redemption price of $6,784.40 per share was not based upon a professional appraisal and did not reflect fair market value. Nonetheless, the court relied upon that price to assess the total value of the petitioner's fifty shares at $339,270, and it awarded the respondent fifty percent of this sum. Both parties moved for reconsideration, which the court granted in part and denied in part. In all, the court ruled upon a total of 200 requests for findings of fact and rulings of law submitted by both parties.

On appeal, the petitioner argues that the trial court erred in: (1) its distribution of the marital property; (2) excluding the Massachusetts verdict from the marital estate; (3) disallowing expert testimony about the value of his LMO stock; (4) relying upon the stock redemption agreement to value the stock; (5) awarding lifetime alimony; and (6) ordering him to maintain the respondent's health insurance.

We sustain the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law. In the Matter of Fowler and Fowler, 145 N.H. 516, 519, 764 A.2d 916 (2000). The trial court has broad discretion in determining matters of property distribution and alimony in fashioning a final divorce decree. Id. Absent an unsustainable exercise of discretion, we will not overturn its ruling or set aside its factual findings. In the Matter of Telgener & Telgener, 148 N.H. 190, 191, 803 A.2d 1051 (2002).

The petitioner first argues that the trial court erred in awarding the respondent such a substantial portion of the marital estate without making specific findings to justify doing so. He does not dispute the award of the marital home and the Rhode Island real estate to the respondent. Rather, he contends that the total distribution of the marital assets represents an eighty-two percent allocation in favor of the respondent. He further asserts that the court's rote recitation of the statutory factors to be considered for asset distribution is not sufficient to satisfy the legislative directive requiring written reasons to justify an unequal division of property. See RSA 458:16–a, III (1992). The respondent, on the other hand, disputes the petitioner's calculation of the property division and contends that it results, at most, in a sixty-eight/ thirty-two percent apportionment in her favor, which she asserts was equitable.

In a divorce proceeding, marital property is not to be divided by some mechanical formula but in a manner deemed "just" based upon the evidence presented and the equities of the case. Rahn v. Rahn, 123 N.H. 222, 225, 459 A.2d 268 (1983). Under RSA 458:16–a, II (1992), an equal division of property is presumed equitable unless the trial court decides otherwise after considering one or more of the factors designated in the statute. RSA 458:16–a, III requires the trial court to "[provide] written reasons for the division of property which it orders."

Although we need not determine the exact percentage breakdown in this case of the trial court's division of marital property, we believe that the respondent's figures more accurately reflect the actual division. In his calculation, the petitioner omitted from his award $169,635, representing his one half of the value of the LMO stock, and did not account for the fact that he was awarded the parties' interest in the assets of the LMO Trust. In addition, his calculations failed to properly account for the fact that the trial court allowed the respondent to withdraw $56,000 from the parties' investment accounts before dividing them. Finally, the petitioner's calculation includes more than $500,000 related to the Massachusetts verdict, including accrued interest. As the court found, "the ... verdict is currently under appeal, with any outcome uncertain."

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