In re Spenard

• Decision Date: 17 October 2014
• Docket Number: No. 2013–343,2013–343
• Parties: In the MATTER OF Susan SPENARD and David Spenard
• Court: New Hampshire Supreme Court

167 N.H. 1

104 A.3d 192

In the MATTER OF Susan SPENARD and David Spenard

No. 2013–343

Supreme Court of New Hampshire.

Submitted: May 15, 2014

Opinion Issued: October 17, 2014

Bossie & Wilson, PLLC, of Manchester (Jon N. Strasburger, on the brief), for the petitioner.

David Spenard, self-represented party, by brief.

HICKS, J.

The petitioner, Susan Spenard, appeals final orders of the Circuit Court (Sadler, J.) in her divorce from the respondent, David Spenard. She argues that the trial court erred by: (1) imputing income to her of $4,000 per month for purposes of child support and alimony; (2) denying her request to reopen the case based upon newly-discovered medical evidence; (3) not accounting for two promissory notes, one of which the respondent sold prior to the final hearing, in dividing the marital estate; and (4) misidentifying two investment accounts, and awarding the respondent an interest in one of the accounts. We affirm in part, vacate in part, and remand.

The trial court found the following facts. The parties were married in June 1998. One child was born during the marriage. Both of the parties worked during the marriage. The respondent has been involved in many businesses over the years but has mainly done real estate title work and closings. His work is cyclical with the real estate market and his business has declined recently. The respondent sold a real estate business in 2007, for which he received approximately $450,000. He invested some of the money and used some to start his title company. After the title business began to decline, the respondent used the remaining money from the sale of his real estate business to pay taxes and monthly bills. He found steady employment with the State of New Hampshire in October 2012, earning about $1,600 bi-weekly.

The petitioner worked as an entertainer throughout the parties' relationship. She worked long hours and four to five days per week until the couple's child was born. After that, she worked one to two days per week. The petitioner claims that she has not been working due to ongoing health issues since about June 2012.

The parties filed a joint petition for divorce in January 2010. In December 2012, the court held a final hearing. At the hearing, the petitioner presented no expert medical testimony to support her position that she is unable to work. Following the court's notice of decision on January 23, 2013, the petitioner filed a motion for reconsideration, asking the court to reconsider various issues and reopen the case to consider new medical evidence that supported her claim that she is unable to work. The trial court denied the petitioner's motion. This appeal followed.

A trial court has broad discretion in fashioning a final decree of divorce, In the Matter of Brownell & Brownell, 163 N.H. 593, 596, 44 A.3d 534 (2012), and in managing the proceedings before it, In the Matter of Sawyer & Sawyer, 161 N.H. 11, 18, 8 A.3d 80 (2010). Its discretion necessarily encompasses decisions concerning child support, alimony, and property distribution. Brownell, 163 N.H. at 596, 44 A.3d 534. Its discretion likewise includes whether to reopen a matter based upon newly-discovered evidence. See Town of Weare v. Paquette's Estate, 121 N.H. 653, 660, 434 A.2d 591 (1981) ; Bricker v. Sceva Speare Mem'l Hosp., 114 N.H. 229, 231, 317 A.2d 563 (1974).

We will not overturn a trial court's rulings absent an unsustainable exercise of discretion. See Brownell, 163 N.H. at 596, 44 A.3d 534 ; Sawyer, 161 N.H. at 18, 8 A.3d 80 (deferring to the trial court on matters such as "resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence"); In the Matter of Aube & Aube, 158 N.H. 459, 465, 969 A.2d 338 (2009). "This means that we review the record only to determine whether it contains an objective basis to sustain the trial court's discretionary judgment[s]." In the Matter of Hampers & Hampers, 154 N.H. 275, 281, 911 A.2d 14 (2006). "If the court's findings can reasonably be made on the evidence presented, they will stand." Brownell, 163 N.H. at 596, 44 A.3d 534 (quotation omitted).

We first address whether the trial court erred by imputing a monthly income of $4,000 to the petitioner. In calculating gross income for purposes of child support, the trial court has discretion to consider "the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated." RSA 458–C:2, IV(a) (Supp. 2013). Whether a party is voluntarily unemployed or underemployed is a question of fact for the fact finder, whose decision we will not disturb if it is supported by the evidence. In re Muller, 164 N.H. 512, 521, 62 A.3d 770 (2013).

In this case, the record establishes that the petitioner worked as an entertainer throughout the parties' marriage. At trial, however, she testified that she had not worked for six months due to health issues.

The respondent testified that, during the marriage, the petitioner would earn at least $1,000 per night when she worked. A private investigator testified that he had anonymously interviewed the petitioner. During the interview, the petitioner claimed that she could make $1,200 to $1,600 per night. The petitioner did not dispute the testimony of either the respondent or the investigator.

The record also reflects that the petitioner spent large sums of money on discretionary expenses during the six months in which she claimed she was unable to work. Specifically, the trial court found that the petitioner made discretionary expenditures of more than $1,500 between June and August 2012, more than $1,600 between August and October 2012, and more than $1,400 between October and December 2012.

Finally, the trial court noted that the petitioner has an associate's degree, and that "there is no medical reason to show she can't work some job even part-time." With respect to the petitioner's assertion that she had not been working because of health issues, the trial court observed that "there was no expert medical testimony to support [her] position that she is unable to work."

Based upon all of the evidence, the trial court imputed income to the petitioner of at least $1,000 per night for a minimum of one night per week, or approximately $4,000 per month. On appeal, the petitioner argues that the trial court erred by imputing income to her because it did not expressly find that she is voluntarily unemployed. She further argues that, in finding that she could continue to work as an entertainer, the trial court failed to consider that she was forty-five years old at the time of the final hearing, and that she had a medical disability preventing her "from not only returning to her former work ... but also from any gainful employment." Finally, she argues that the private investigator's testimony was unreliable because the investigator had interviewed her more than two years prior to trial.

We agree with the respondent that RSA 458–C:2, IV(a) does not require an express finding of voluntary unemployment. In the Matter of Donovan & Donovan, 152 N.H. 55, 58, 871 A.2d 30 (2005). In this case, the trial court's finding that the petitioner is voluntarily unemployed is implied in its order. With respect to the petitioner's age, her claim that she is medically unable to work, and the amount of time that had passed since the investigator had interviewed her, we conclude that these matters were for the trial court to evaluate in weighing the evidence and determining the credibility of the witnesses. Aube, 158 N.H. at 465, 969 A.2d 338. Upon this record, we conclude that there was more than ample support for the trial court's implied finding that the petitioner is voluntarily unemployed, and its express finding that she has the ability to earn $4000 per month.

We next address whether the trial court erred by denying the petitioner's request to reopen the case. After the trial court issued its final decree, the petitioner moved for reconsideration, arguing, in part, that prior to the final hearing she had been unable to obtain medical evidence substantiating her claim of disability because the respondent had failed to provide health insurance in accordance with the temporary orders. She further alleged that the respondent had encouraged her not to seek medical attention until after his new health plan went into effect, that his new health plan went into effect after the final hearing, that she had since consulted with a neurologist, and that the neurologist had diagnosed her with a chronic illness impairing her ability to work. She requested a new hearing to "present additional evidence which was not in her possession at the time of the final hearing due to no fault of her own."

Any party seeking to reopen a case in order to submit new evidence must establish that the party was not at fault in failing to discover the evidence prior to the earlier trial. Paquette, 121 N.H. at 660, 434 A.2d 591 ; Bricker, 114 N.H. at 231, 317 A.2d 563. The petitioner argues that she was not at fault for failing to discover her medical diagnosis by the time of the final hearing because the failure was attributable to the respondent's failure to comply with temporary orders.

The record establishes that the respondent was found in contempt of his obligations to provide health insurance, and to pay child support, alimony, and the mortgage on the marital home. The record also reflects, however, that by May 11, 2012, more than seven months prior to trial, he had brought his child support and alimony obligations current, he had brought the marital residence out of foreclosure, and he had obtained health coverage for the petitioner. Although the health insurance policy had a high deductible, the trial court made the respondent solely responsible for any amount of the deductible that exceeded the...