Parker v. Parker, 81-086

• Decision Date: 14 July 1982
• Docket Number: No. 81-086,81-086
• Parties: Charles D. PARKER v. Nancy M. PARKER.
• Court: New Hampshire Supreme Court

Page 414

448 A.2d 414

122 N.H. 658

Charles D. PARKER v. Nancy M. PARKER.

No. 81-086.

Supreme Court of New Hampshire.

July 14, 1982.

McSwiney, Jones & Semple, Concord (Ronna F. Wise, Concord, on brief and orally), for plaintiff.

Shaw & Woods, P.A., Exeter (Robert Shaw, Exeter, on brief and orally), for defendant.

PER CURIAM.

The issue in this divorce case is whether the trial court abused its discretion in making its alimony and child support award, division of the parties' property, and in denying the defendant's motion for temporary support. We affirm.

The parties were married in 1966. They have two children, who were ten and twelve years old at the time of the divorce decree. The plaintiff, an electrician, had been the parties' main source of support during the fourteen years of their marriage. At the time of the divorce hearing, his monthly net income was approximately $1,780, barring decreases due to sickness, unemployment between jobs, and vacation time.

The defendant has a college degree and is certified as an elementary school teacher. Prior to the birth of their children, she taught in an elementary school. While the children were young she worked part-time as a kindergarten aide. After the parties separated, she attempted to obtain a full-time position as a teacher, but was unsuccessful. She then accepted a position as a teacher's aide at an hourly rate of $3.65.

The joint assets of the parties consisted principally of their home in North Hampton, New Hampshire, its furnishings, and two automobiles. The fair market value of the house was approximately $60,000 at the time of the divorce decree, subject to a mortgage of $9,500. The furnishings were valued at $4,000. Some evidence was elicited on cross-examination of the husband that he held a bank account jointly with his grandmother, and that the parties paid taxes on the income during their marriage. The husband, however, testified that all the money in the account belonged to his grandmother and that he had no present rights in the account.

The parties were separated for a year before their divorce. During that time, the plaintiff voluntarily paid all of his wife's expenses. After the divorce decree was entered, and pending this appeal, the plaintiff started paying alimony and child support in accordance with the decree.

In September 1979, the plaintiff filed a libel for divorce, alleging irreconcilable differences. RSA 458:7-a (Supp.1979). The defendant filed a cross-libel. After a hearing, the Master (Roger R. Burlingame, Esq.) recommended: that a divorce be granted to the plaintiff; that custody of the children be awarded to the defendant; that the plaintiff pay $40 per week child support and $100 per week alimony to the defendant; that the defendant be awarded sole title to the family home, all the appliances and furniture remaining in the house, and one of the parties' automobiles, subject to existing financing. The plaintiff was awarded the second automobile, his tools and a $25,000 note to be given by the defendant, with interest at the rate of ten per cent per year secured by a second mortgage on the house. The note provided that no payments would be due for five years, at which time all unpaid sums would be due and payable. In addition to his support obligations, the plaintiff was ordered to keep the children on his union medical plan. The Superior Court (Souter, J.) approved the master's recommendations.

The defendant excepted and appealed to this court, alleging that the master abused his discretion in (1) failing to consider all the plaintiff's assets when he calculated the alimony, support, and property division awards; (2) awarding less alimony and child support than the plaintiff voluntarily paid before the divorce; (3) failing to award sufficient alimony and support to cover the defendant's necessary expenses; (4) failing to consider the tax consequences of the award; (5) not conveying the parties' house free and clear to the defendant, thus depriving her and the children of a home; and finally, (6) denying the defendant a temporary order of support pending review of the superior court's order.

It is well settled that we will not set aside a master's determinations absent a showing of abuse of discretion. Hanson v. Hanson, 121 N.H. 719, 720, 433 A.2d 1310, 1311 (1980); Goudreault v. Goudreault, 120 N.H. 140, 140, 412 A.2d 736, 736 (1981).

The master's findings of fact, if supported by the evidence, will be upheld by this court, and "such conflicts as might be found in the testimony, questions about the credibility of witnesses, and the weight to be given to testimony are for the master to resolve." Ballou v. Ballou, 118 N.H. 463, 465-66, 387 A.2d 1169, 1170 (1978).

The record reveals that both parties presented evidence on every aspect of their assets, needs, and abilities and submitted support affidavits for the master's consideration. While the defendant disputed the plaintiff's testimony concerning his earning capacity and assets, the master apparently found the plaintiff's testimony more credible. Because the master's allocation and disposition of the parties' assets depended upon the credibility of witnesses and the weight he gave to the testimony before him, we will defer to his judgment. See 93 Clearing House, Inc. v. Khoury, 120 N.H. 346, 350, 415 A.2d 671, 674 (1980); Ballou v. Ballou, 118 N.H. at 466, 387 A.2d at 1170.

The defendant contends that the master abused his discretion in awarding less alimony and child support than the plaintiff had paid voluntarily before the trial. This argument has no legal foundation. The present situation is analogous to the situation where a spouse offers to compromise before the divorce decree is entered. "The fact that the master's recommendation did not conform in all respects to an offer made by one of the...