Thayer v. Thayer

• Decision Date: 12 December 1979
• Docket Number: No. 79-139,79-139
• Citation: 119 N.H. 871,409 A.2d 1326
• Parties: Charles L. THAYER v. Elizabeth W. THAYER.
• Court: New Hampshire Supreme Court

Page 1326

409 A.2d 1326

119 N.H. 871

Charles L. THAYER v. Elizabeth W. THAYER.

No. 79-139.

Supreme Court of New Hampshire.

Dec. 12, 1979.

Cooper, Hall & Walker, Rochester (Peter A. Handy, Rochester, orally), for plaintiff.

Boynton, Waldron, Dill & Aeschliman, Portsmouth (Nicholas R. Aeschliman, Portsmouth, orally), for defendant.

BOIS, Justice.

The issue in this divorce case is whether the trial court may consider contributions to pension and profit-sharing plans, fringe benefits, and reimbursements of business expenses by a professional corporation in determining one's ability to pay alimony and child support. We hold that contributions to pension and profit-sharing plans and fringe benefits may be considered, but that reimbursable business expenses may not.

This action arises from cross petitions by plaintiff and defendant for divorce on grounds of irreconcilable differences. A hearing was held before a Master (Nicholas G. Copadis, Esq.) whose recommendations were approved by the Trial Court (Bean, J.). Plaintiff excepted to parts of the court's decree and moved for rehearing. Defendant moved to clarify the decree. Another hearing was held, and the master made further recommendations, most of which were approved by the Trial Court (Mullavey, J.). Plaintiff seasonably excepted to various findings and rulings by the court. We overrule plaintiff's exceptions.

Plaintiff and defendant were married in 1958 and have four children. Plaintiff is a surgeon and has been the sole source of financial support for the family. He has been practicing in Portsmouth since 1958, and operates his practice as a professional association in which he is the only doctor. Plaintiff receives various benefits as an employee of the professional association, including contributions to a pension and profit-sharing plan, payment of medical expenses, dental expenses, Blue Cross-Blue Shield, health insurance, life insurance, and business expenses.

The first issue is whether the $13,175 in professional association contributions to pension and profit-sharing plans was properly considered in determining plaintiff's ability to pay alimony and child support.

A relevant factor in determining the award of alimony and child support is the income of the parties. See Ames v. Ames, 117 N.H. 554, 555, 374 A.2d 1181 (1977); Calderwood v. Calderwood, 114 N.H. 651, 653, 327 A.2d 704, 706 (1974). Although the contributions at issue were not disposable income out of which plaintiff could pay alimony once they became part of the pension and profit-sharing plan, plaintiff controlled the professional association and had the option of electing to receive the contributions in the form of salary. Because he exercised control over the method of receipt and disbursement of these monies, we cannot say as a matter of law that the court abused its discretion in considering the contributions as part of plaintiff's net income. Matters of support and alimony are within the sound discretion of the trial court unrestricted by fixed formulas and guidelines, and the court's determinations will not be set aside absent a showing of a clear abuse of discretion. Symmes v. Symmes, 118 N.H. 488, 490, 387 A.2d 1181, 1182 (1978); Grandmaison v. Grandmaison, 119 N.H. ---, 401 A.2d 1057, 1058-59 (1979). Because neither party disputes the distribution of property by the master, we do not reach the issue of whether a retirement plan is a property interest subject to division upon divorce. See generally H. Foster and D. Freed, Spousal Rights in Retirement and Pension Benefits, 16 Jour.Fam.Law 187 (1977-78).

The next issue is whether certain expenses paid by the...