In re Nassar

• Decision Date: 07 March 2008
• Docket Number: No. 2006–870.,2006–870.
• Citation: 156 N.H. 769,943 A.2d 740
• Court: New Hampshire Supreme Court
• Parties: In the Matter of George J. NASSAR and Maureen Nassar.

156 N.H. 769

943 A.2d 740

In the Matter of George J. NASSAR and Maureen Nassar.

No. 2006–870.

Supreme Court of New Hampshire.

Submitted: Nov. 13, 2007.

Opinion Issued: March 7, 2008.

Harvey & Mahoney, P.A., of Manchester (J. Campbell Harvey on the brief), for the petitioner.

McLaughlin Law Office, P.C., of Laconia (Philip T. McLaughlin on the brief), for the respondent.

DUGGAN, J.

The petitioner, George J. Nassar (husband), appeals the Plymouth Family Division's (Carbon, J. ) award of permanent monthly alimony to the respondent, Maureen Nassar (wife), in the amount of $1,100. We vacate and remand.

I. Facts

The record supports the following facts. The husband and wife are fifty-six and fifty-three years old, respectively. They were married on April 16, 1983, after residing together for approximately ten years. They have two children, both of whom are now emancipated adults.

Throughout the duration of the marriage, the husband's parents permitted the couple and their children to live rent free in a house they own on Squam Lake. Apart from this singular luxury, the parties lived a modest life. The couple could never afford to buy new furniture, and they consistently drove old cars that did not have heat. Indeed, the wife testified that one of her complaints had always been that the couple "did not have money."

Both parties worked to provide for their family. In addition to acting as the primary caretaker for the couple's children, the wife worked as a part-time substitute teacher early on in the marriage. For the last twenty years, she has worked as a waitress and a staff trainer at a restaurant. In that capacity, she is currently working twenty-four hours per week.

The husband held a variety of positions. For an unspecified period of time, he was a traveling salesman. From the late 1980s through the 1990s, he was the manager of a deli department at a grocery store. For the past several years, he has operated his parents' Squam Lake boat tour from May until October, and a ski check booth at Loon Mountain from approximately the middle of December until early April. The remainder of the year, he collects unemployment benefits. During the summer months, the husband works roughly seventy-five hours per week.

At some point between 1995 and 2000, the husband began to suspect that the parties' marriage would fail, but he did not verbalize his concerns to his wife. It was not until March 15, 2005, that he informed his wife that he was unhappy and wanted a divorce. Nevertheless, the record indicates that the relationship between the parties had been strained for some time. For example, the parties had been taking separate vacations for several years and had been filing individual tax returns since 2001. Moreover, they had not been intimate for quite some time and, since 2004, the husband had slept on a couch in a separate room. Finally, although the wife requested several times that the parties seek counseling, the husband consistently rebuffed her suggestion.

At some point in 2000, the husband pushed the wife, causing her to fall over a chair. Following this incident, the wife moved out and the parties were estranged for three weeks. She ultimately decided to return because, as she testified, "[her] children were still young," "[t]hey didn't know why their mother left," and the husband "explained to [the children] that he had done something wrong" and promised to never do so again. There were no other incidences of physical abuse.

After the parties filed for divorce, the wife was awarded temporary alimony of $800 per month. She also received temporary use and possession of the home the couple had occupied during the marriage. However, because they still had legal title to the property, the husband's parents subsequently commenced an eviction proceeding against the wife. As a result, she was forced to vacate the premises. After she left, the husband immediately moved back in and, for the first time, executed a formal rental agreement with his parents.

At the final divorce hearing, the parties submitted a partial stipulation resolving the grounds for divorce, health insurance, retirement, debt and division of property. The principal issue remaining for the court was alimony. The wife asked for $1,500 a month and the husband objected to paying any amount.

In its final order, the court awarded the wife "permanent alimony" of $1,100 per month, "subject to an annual cost of living increase based upon the Consumer Price Index published by the Wall Street Journal." In support of its ruling, the court acknowledged "that the lifestyle during the marriage was modest." However, it held that "each party's employment prospects could be enhanced."

More particularly, the court found that, while the husband "is clearly working many hours per week for his parents, ... his actualized hourly rate is diminimus [sic ]." The court determined that the husband could increase his reported income of $41,000 by "choos[ing] to work another job where his hourly rate would be substantially higher." The court believed such an opportunity was available to the husband because "[h]is previous history with the deli business supports a finding that he has been successful in other ventures."

Moreover, the court ruled that the rental agreement between the husband and his parents was "specious." As a result, it held that the husband's "effective income is higher than he reports, given that he receives the benefit of housing from his parents." The court concluded that the husband therefore had the ability to pay alimony because "the $900 which [the husband] claims he is paying as rent c[an] be applied towards alimony for [the wife]."

In addition, the court found that the wife "clearly has an ability to work more hours each week to become more self sufficient," despite her protestations that her current hourly schedule is "customary in the industry." It also held that the wife "had a reasonable expectation that support from [the husband's] parents would continue" and, thus, "there was less of a need [for her] to plan for future expenses than what might otherwise be the case." The court determined that the wife was accordingly in need of alimony. Finally, the court held that "the underlying circumstances giving rise to the divorce" supported an award of alimony.

II. Analysis

On appeal, the husband argues that we must reverse the alimony award because: (1) the court considered the husband's fault in the dissolution of the marriage; (2) the award was made subject to an automatic, annual cost-of-living increase; (3) the record does not support the court's decision to award alimony for life; (4) the court considered the free housing provided by the husband's parents in ascertaining the wife's needs and the husband's ability to pay alimony; and (5) the court was motivated by "animus."

In reviewing the husband's claims, we will "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 & Fowler, 145 N.H. 516, 519, 764 A.2d 916 (2000). "The trial court has broad discretion in determining and ordering ... the payment of alimony...." Id. Accordingly, absent an unsustainable exercise of discretion, we will not overturn its factual findings. In the Matter of Peirano & Larsen, 155 N.H. 738, 746, 930 A.2d 1165 (2007). However, we review its interpretation of the law de novo. See In re Juvenile 2004–789, 153 N.H. 332, 334, 897 A.2d 940 (2006).

A trial court is permitted to award alimony if it finds that:

(a) [t]he party in need lacks sufficient income, property, or both ... 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) [t]he 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) [t]he 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 (Supp.2007). In determining the amount of alimony, the court may consider the value of economic and non-economic contributions to the family unit, RSA 458:19, IV(d), and:

shall consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded ..., vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party as defined in RSA 458:16–a, II(l ); and the federal tax consequences of the order.

RSA 458:19, IV(a). We turn now to the husband's specific arguments.

A. Consideration of Fault

The husband argues first that the court mischaracterized the parties' reconciliation following the incident of abuse and impermissibly considered fault in determining that the wife is entitled to alimony. More particularly, he argues that there is no basis in the record for the court's determination that he "induced [the wife] to return to the marriage following [the] physical assault."

We agree that there is no evidence to support the court's finding that the husband "induced [the wife] to return to the marriage following [the] physical assault." At trial, the wife testified that she returned to the home following the assault because "[her] children were still young," "[t]hey didn't know why their mother left," and the husband "explained to [the children] that he had done something wrong." We have not found, and the wife has failed to provide, any evidence that supports the court's deduction from this testimony that there was "inducement." Because this finding was clearly erroneous and was central to the court's decision regarding alimony, we vacate the award and remand.

The husband also contends that the...