Pizani v. Jacobs
| Jurisdiction | New Hampshire,United States |
| Parties | In the Matter of Robert Pizani, Jr. a. v. Robert Jacobs, |
| Decision Date | 21 February 2024 |
| Court | New Hampshire Supreme Court |
| Docket Number | 2023-0033 |
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The respondent Dayana Pizani (Wife), appeals a final divorce decree and alimony order entered by the Circuit Court (Lemire J.) dividing the marital property and awarding her alimony in her divorce from the petitioner, Robert Pizani, Jr. (Husband). See RSA 458:16-a (2018 &Supp. 2023); RSA 458:19-a (2018 &Supp. 2023). Wife argues that the trial court erred by: (1) improperly allowing Husband to offset his alimony obligation against the property division award; (2) allowing Husband's appraisal reports to be admitted at trial under New Hampshire Rule of Evidence 804(b)(6); (3) choosing a value for certain property in Panama that was the average of the appraisals offered by the parties when there was no evidence to support the value; (4) ignoring the children's interest in the Panama property and assigning one hundred percent of the property's value to Wife; and (5) finding that Wife intentionally dissipated or diminished the marital estate when she transferred her ownership in the Panama property to a business entity. We affirm.
I. Background
The following facts were found by the trial court or are supported by the record. The parties were married in 1995 and have two adult children. Wife is from Panama. The parties purchased a home in Londonderry and lived there for more than seventeen years. In 2006, Wife's mother deeded three parcels of land in Panama to her. In 2015, Wife's father deeded three additional parcels of land in Panama to her.
In January 2019, Husband began an affair. In July 2019, Husband announced he was leaving the marriage and moved out of the marital home. In August 2019, Wife created En Dios Confio S.A. (EDC), a business entity in Panama. In January 2020 Wife owned a fifty-two percent interest in the company, while the parties' children each owned a twenty-four percent interest. In January 2020, Wife deeded the Panama land held in her name to EDC.
Husband filed for divorce on February 24, 2020, alleging irreconcilable differences. On February 28, Wife transferred her EDC shares equally to her children. On May 28, Wife filed a cross-petition for divorce alleging the fault ground of adultery. In September, the children transferred shares back to Wife such that she regained her prior fifty-two percent interest in the company.
Following a final divorce hearing, the trial court issued a narrative order. The court dismissed Husband's ground for divorce and granted Wife the divorce on the ground of adultery. Citing RSA 458:16-a, II(1) and RSA 458:19-a, IV(g), the court considered Husband's adultery, among other things, in determining the division of marital assets and alimony.
The court awarded alimony to Wife in the amount of $5,000 per month for a period of 148.5 months. In determining the property division, the court identified and valued a variety of marital assets. Relevant to this appeal, the court constructively awarded the full value of the Panama land $2,428,047, to Wife in the parties' overall property division. The court awarded Wife approximately sixty-five percent of the marital estate and Husband approximately thirty-five percent.
Because the Panama land was the largest asset, and was awarded entirely to Wife, the court found that a cash payment was required to make the division equitable. The court ordered Wife to pay Husband $719,632 at a rate of $5,000 per month. Further, the court ordered that so long as Husband had an alimony obligation to Wife, instead of making the alimony payment, "he shall retain the $5,000 per month and it shall be credited against the property settlement payment she owes him." The court stated that in the event Wife paid the balance of the settlement payment in full, Husband "shall thereafter immediately begin paying her alimony of $5,000 per month until the end of 148.5 months, or [Wife's] remarriage, whichever sooner occurs." This appeal followed.
II. Analysis
A trial court has broad discretion in fashioning a final decree of divorce, and in managing the proceedings before it. In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014). Its discretion necessarily encompasses decisions concerning child support, alimony, and property distribution. Id. We will not overturn a trial court's rulings absent an unsustainable exercise of discretion. Id. This standard of review requires that we review the record only to determine whether it contains an objective basis to sustain the trial court's discretionary judgments. Id. If the court's findings can reasonably be made on the evidence presented, they will stand. Id.
We first address Wife's argument that the trial court erred in allowing Husband's appraisal reports to be admitted at trial under New Hampshire Rule of Evidence 804(b)(6).[1] In February 2021, Husband's appraisal company issued appraisal reports regarding the Panama land. In May, Husband provided copies of the appraisals to Wife. On June 10, Wife moved to strike the appraisals. On June 14, the trial court denied the motion. On June 18, Wife granted power of attorney to her cousin, a Panamanian attorney. On August 9, the attorney filed a criminal complaint and civil action on Wife's behalf against the appraisal company alleging that the company completed the appraisals without authorization or permission and established "false values . . . with the sole purpose of benefitting [Husband] in the . . . divorce proceedings." The civil action alleged economic damages equivalent to $1,000,000.
On December 17, Husband's appraisal company informed him that, in light of the lawsuit, it would not act as an expert witness in his divorce hearing. On January 10, 2022, Husband moved to admit the appraisal reports without expert testimony, arguing that they were admissible, in part, under Rule 804(b)(6) because Wife "wrongfully and intentionally" caused the appraisal company to be unavailable "by filing a frivolous lawsuit to intimidate" the company from testifying at the divorce hearing. See N.H. R. Ev. 804(b)(6). The trial court granted the motion. In its order, the court observed that "[t]he Rules of Evidence do not apply to divorce proceedings in the Family Division." Nevertheless, the court found that the appraisal reports were admissible under Rule 804(b)(6).
The trial court has broad discretion over the admission of evidence in divorce cases and is not bound by the rules of evidence. Gosselin v. Gosselin, 136 N.H. 350, 353 (1992); N.H. R. Ev. 1101(d)(3). We review a trial court's decision on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard. In the Matter of Hampers &Hampers, 154 N.H. 275, 280 (2006). To meet this standard, Wife must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of her case. Id.
Although the trial court conducted an analysis under Rule 804(b)(6) in finding the appraisal reports admissible, we need not review the court's analysis under that rule because we conclude that the court's decision to admit the evidence was a sustainable exercise of discretion. The court inferred from the timing of the Panamanian lawsuit that it "was intended to accomplish what [Wife] was unable to do in this Court, namely preclude the admission of [Husband's] appraisals." On this record, we determine that it was reasonable for the trial court to admit Husband's appraisal reports and Wife has failed to demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of her case.
We next address Wife's argument that the trial court erred when it chose a value for the Panama land that was exactly one half the value between the competing appraisals when there was no evidence to support that value. The trial court found that Husband's appraisals valued the Panama land at a combined $4,027,073 and that Wife's appraisals valued the land at a combined $757,020. The trial court found "that the fair market value of the five lots appraised for this trial likely lies between the figures provided by the two appraisers" and assessed a value of $2,392,047 to the lots in question. This value is the average of the two appraisals rounded to the nearest dollar.
"Fair market value is the price a willing buyer and a willing seller would probably arrive at through fair negotiations, taking into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining." Rattee v. Rattee, 146 N.H. 44, 50 (2001) (quotation omitted). The determination of fair market value is a question of fact. Ventas Realty Ltd. P'ship v. City of Dover, 172 N.H. 752, 755 (2020). Appeal of Pennichuck Water Works, 160 N.H. 18, 38 (2010) ().
We will uphold the trial court's findings of fact unless they lack evidentiary support or are legally erroneous. Ventas Realty Ltd. P'ship, 172 N.H. at 755. We do not decide whether we would have ruled differently than the trial court, but rather, whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Id. Thus, we defer to the trial court's judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the...
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