In the Matter of Harvey
| Decision Date | 26 April 2006 |
| Docket Number | No. 2005-168.,2005-168. |
| Citation | 899 A.2d 258 |
| Parties | In the Matter of Rebecca HARVEY and Paul E. Harvey, Jr. |
| Court | New Hampshire Supreme Court |
Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the petitioner.
Brennan, Caron, Lenehan & Iacopino, of Manchester (William E. Brennan and Jaye L. Rancourt on the brief, and Ms. Rancourt orally), for the respondent.
The petitioner, Rebecca Harvey, appeals from a final divorce decree recommended by a Marital Master (Bruce F. DalPra, Esq.) and approved by the Derry Family Division (Sadler, J.). The respondent, Paul E. Harvey, Jr., cross-appeals certain provisions of the decree. We affirm in part, vacate in part, and remand.
The following facts were found by the trial court or are supported by the record. The parties married in August 1989 and have four children, all under the age of eighteen. The parties began living apart in October 2002.
Prior to the marriage, the petitioner was employed in Virginia as a legislative assistant. When she and the respondent became engaged, they discussed her role in the marriage and decided that she would be the primary caretaker for their children. After the parties married, the petitioner earned a law degree. Although she had no intention of practicing law, she took and passed the New Hampshire bar examination. The petitioner remained at home during the marriage to care for the children and run the household. She planned all appointments, activities and events for the children. She also planned social events for family and friends, and volunteered with several organizations in the Portsmouth area. At the time of the divorce, she was employed as a part-time teacher's aide and cafeteria monitor, and occasional substitute teacher. She was also being treated for depression and anxiety as a result of the divorce proceedings.
The respondent is the sole shareholder of a dental practice. His father, Paul Harvey Sr., had established the practice and continues to work there. Harvey Sr. controls all financial aspects of the practice, including salaries. At the time of the divorce, the respondent was earning an annual salary of approximately $190,000, plus bonuses. The respondent received exceptionally large bonuses in 2000 and 2001 compared to previous years.
The parties owned numerous parcels of real estate. Prior to the marriage, the respondent and his mother, Caroline Harvey, purchased property at 48 Ball Street in Portsmouth. The respondent paid a deposit of $25,000 and his parents contributed an additional $50,000. The original understanding was that the respondent and his parents would build homes on the property. At the time of the purchase, a dilapidated cottage and a detached garage occupied the property. The respondent's parents paid $21,000 to renovate the cottage. After the parties married, they lived in the renovated cottage. The parents again expressed their intent to build a home on the property, but, upon the objection of the petitioner, the respondent asked his parents not to build there. His parents agreed and continued to assist the respondent in making mortgage payments on the property through December 1994 for a total contribution, including the $50,000 down payment, of $275,000.
In December 1997, the parties received a construction loan to build their home at 48 Ball Street. Caroline Harvey removed her name from the deed, a requirement of the bank in order to close the loan. Prior to and during the construction phase, the parties lived in a house on Newcastle Avenue in Portsmouth. The respondent had purchased the Newcastle Avenue property prior to the marriage. He used savings as a down payment and financed the balance. After the parties were married, the property was rented and the rental income was used to pay its mortgage and expenses.
The respondent and his brother also owned, as tenants-in-common, rental properties at 77 Middle Road and 815 Middle Street in Portsmouth. Prior to the parties' marriage, the respondent's parents and grandparents had provided the down payments for these properties. The mortgages were paid off during the course of the marriage. At times, the respondent's portion of the rental income was used to pay household expenses. The respondent was responsible for paying the bills on the properties and his brother was responsible for collecting and depositing the rental income. At some point, the respondent began to deposit the rental income into investment accounts established to defray the children's future college expenses.
Before the parties' marriage, the respondent also purchased a condominium and two timeshares near Attitash Mountain in Bartlett. He paid off all three mortgages either prior to or during the course of the marriage. Finally, in 1999 and 2000, the respondent acquired from Harvey Sr. an 8.2% interest in 610 Islington Street in Portsmouth, the real estate that houses the dental practice.
On December 2, 2004, the trial court approved a final divorce decree. It awarded the parties joint legal custody of the children, with the petitioner to have primary physical custody. The trial court also ordered the respondent to pay monthly child support in the amount of $6,606, in accordance with the child support guidelines, as well as forty-five percent of his net annual bonus. It ordered the parties to use the value of the children's investment accounts for future college expenses. It also awarded the petitioner monthly alimony in the amount of $3,000 for a period of three years, as she would "require a reasonable period of time to refrain [sic], seek employment and enter the work force."
The trial court valued the marital estate at approximately $2.9 million and awarded fifty-five percent, or approximately $1.6 million, to the petitioner, due to the length of the marriage, her role as the primary caretaker of the family throughout the marriage, her role post-divorce as primary custodial parent, and her relatively modest earning capacity and ability to acquire capital assets.
The respondent was awarded, among other things, the rental properties on Middle Road and Middle Street, the condominium and the timeshares near Attitash Mountain, his interest in the dental practice and the building that houses the dental practice, certain stock interests, and an approximate one-half interest in the retirement accounts. The petitioner was awarded, among other things, $34,000 in proceeds from a joint checking account, and an approximate one-half interest in the retirement accounts.
In addition, under the decree, the respondent was permitted to pay to the petitioner her remaining portion of the property settlement in monthly installments over a fifteen-year period. Her remaining portion of the property settlement was approximately $300,000 or $800,000, depending upon whether the respondent exercised his option to acquire the petitioner's equity in the marital home on Ball Street and transfer to her the unencumbered interest in the property on Newcastle Avenue. The trial court granted the respondent thirty days to exercise this option. The trial court also ordered the parties to reimburse the respondent's parents $275,000 for their contributions. The trial court denied the petitioner's motion to reconsider.
On March 29, 2005, the trial court acknowledged a mathematical error in its computation of marital assets awarded to the petitioner. Instead of increasing the amount of the monthly property settlement payment, as requested by the petitioner, the trial court extended the payment schedule from fifteen years to twenty-three years. The trial court denied the petitioner's motion to reconsider the payment extension. This appeal and cross-appeal followed.
On appeal, the petitioner argues that the trial court erred by: (1) awarding her alimony that was inadequate in duration and amount; (2) permitting the respondent to pay her remaining portion of the property settlement over a twenty-three year period; and (3) ordering the parties to reimburse the respondent's parents for their financial contributions to the equity of the marital home. The respondent argues on cross-appeal that the trial court erred by: (1) including certain property in the marital estate; (2) failing to award an unequal property settlement in his favor; and (3) declining to discount his interest in certain real estate holdings.
The trial court is afforded broad discretion in determining matters of property distribution and alimony in fashioning a final divorce decree. In the Matter of Sutton & Sutton, 148 N.H. 676, 679, 813 A.2d 1193 (2002). We will not overturn a trial court's decision on these matters absent an unsustainable exercise of discretion. See id.
We first address whether the alimony award was inadequate in duration or amount. The trial court awarded the petitioner monthly alimony of $3,000 for a period of three years. RSA 458:19, I (Supp.2005) provides that the trial court shall award alimony if: (1) the party in need lacks sufficient income, property, or both to provide for his or her reasonable needs, considering the style of living to which the parties have become accustomed during the marriage; (2) the payor is able to continue to meet his or her own reasonable needs, considering the style of living to which the parties have become accustomed during the marriage; and (3) the party in need cannot be self-supporting through appropriate employment at a standard of living that meets reasonable needs, or is the custodian of the parties' child, whose condition or circumstances make it appropriate that the custodian not seek employment outside the home.
In determining the amount of alimony to be awarded, a trial court shall consider the length of the marriage; the age, health,...
To continue reading
Request your trial