In the Matter of Garrett Lear and Annette Lear

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0273, In the Matter of Garrett Lear and
Annette Lear, the court on February 27, 2015, issued the
following order:

Having considered the brief, memorandum of law, and the record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). The husband, Garrett Lear, appeals entry by the
Circuit Court (Patten, J.) of the final decree in his divorce from the wife,
Annette Lear. We affirm.

We afford trial courts broad discretion in determining matters of property
distribution and alimony when fashioning a final divorce decree. In the Matter
of Crowe & Crowe, 148 N.H. 218, 221 (2002). We will not overturn the trial
court’s decision absent an unsustainable exercise of discretion. Id. “If the
court’s findings can reasonably be made on the evidence presented, they will
stand.” In the Matter of Letendre & Letendre, 149 N.H. 31, 36 (2002).

The husband first argues that the trial court erred because its narrative
order “was silent as to the issue of condonation.” “The affirmative defense of
condonation is the forgiveness of an antecedent matrimonial offense on
condition that it shall not be repeated.” In the Matter of Dube & Dube, 163
N.H. 575, 579 (2012) (quotation omitted). “Under the doctrine, if either party to
a marriage thinks proper to forgive the [misconduct] of the other, it cannot
afterwards be set up as a ground of divorce, without evidence of a further
injury.” Id. (quotation and brackets omitted). Although the trial court did not
make an explicit finding with regard to the husband’s affirmative defense of
condonation, we assume that it made “all subsidiary findings necessary to
support its decision.” Smith v. Lillian V. Donahue Trust, 157 N.H. 502, 508
(2008).

The husband next asserts that the trial court erred because his
condonation defense, as a matter of law, precluded the court from granting the
wife’s petition for divorce on the ground of extreme cruelty. “We cannot hold on
the record before us that the [court’s] implied finding that there was no
condonation . . . was not warranted and proper.” Tibbetts v. Tibbetts, 109 N.H.
239, 241 (1968).

The husband next contends that the trial court applied an incorrect legal
standard to evaluate the wife’s claim that his conduct constituted extreme
cruelty. See RSA 458:7, III (2004). The husband argues that to grant a divorce
to the wife on the ground of extreme cruelty, the trial court had to find evidence
of bodily injury. He is incorrect. Divorce upon the ground of extreme cruelty
may also be granted upon proof of threatened bodily injury. In the Matter of
Guy & Guy, 158 N.H. 411, 412 (2009). Thus, we disagree with the husband
that the trial court applied the wrong legal standard in this case.

The husband next argues that the trial court erred when it granted the
wife’s cross-petition for divorce because, he asserts, he presented evidence
“which overwhelmingly rebutted the [wife’s] assertion that extreme cruelty
caused the breakdown of the marriage.” He further contends that the trial
court, in this case, improperly weighed the evidence. However, we defer 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 Sawyer & Sawyer, 161 N.H. 11, 18 (2010). Based upon the
evidence at trial, we conclude that the trial court reasonably could have found
that extreme cruelty caused the breakdown of the marriage. See Letendre, 149
N.H. at 36.

The husband next challenges the trial court’s property division. RSA
458:16–a, II (2004) creates a presumption that equal distribution of marital
property is equitable. In the Matter of Salesky & Salesky, 157 N.H. 698, 708
(2008). Absent special circumstances, the court must make the distribution as
equal as possible. Id. The statute enumerates various factors for the court to
consider, such as the length of the marriage, the ability of the parties to
provide for their own needs, the needs of the custodial parent, the contribution
of each party during the marriage and the value of property contributed by
each party. Id. Additionally, the court may consider “[a]ny other factor [it]
deems relevant” in equitably distributing the parties’ assets. RSA 458:16–a,
II(o). A trial court is not precluded, however, from awarding a particular asset
in its entirety to one party. In the Matter of Salesky & Salesky, 157 N.H. at
708.

The trial court’s narrative order indicates that the court found it
equitable to divide the parties’ real estate interests unequally, awarding 55% of
those interests to the wife and 45% of them to the husband, and to divide their
other property approximately equally. The trial court divided the parties’ real
estate interests unequally after considering several of the enumerated factors.
See RSA 458:16-a, II(a)-(c), (f)-(h), (m)-(n). As the record supports the trial
court’s consideration of those factors, we uphold its property division.

Finally, the husband challenges the trial court’s alimony award. RSA
458:19, I (Supp. 2014) authorizes the trial court to 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

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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, a
trial court must consider various factors enumerated in RSA 458:19, IV (2004).
Nevertheless, trial courts have broad discretion in awarding alimony. In the
Matter of Dube & Dube, 163 N.H. at 580. We review the trial court’s decision
under our unsustainable exercise of discretion standard. Id.

In this case, after considering the factors enumerated in RSA 458:19, IV,
the trial court awarded the wife $400 in monthly alimony until the parties’ real
estate interests are sold. The husband argues that the alimony award
constitutes an unsustainable exercise of discretion, in part, because the wife
failed to present sufficient evidence of her monthly expenses. The trial court
found that the wife had monthly expenses of $1,615, not including housing
expenses. At the hearing, the wife’s counsel represented that the wife had
submitted a financial affidavit “with attached monthly expenses.” However, the
husband has not provided a copy of this affidavit with its attachments as part
of the record on appeal. Absent a complete record, we must assume that the
evidence supported the trial court’s findings with regard to the wife’s monthly
expenses. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).

The husband also argues that the record does not support the trial
court’s finding that he had an ability to pay the wife $400 in monthly alimony
given that he reported monthly income of only $1,600. The trial court observed
that the husband “does not file any income tax returns” and has “opted out of
social security early on in his ministry career,” such that “there are no tax
records or social security report of earnings to confirm his contention that he
receives approximately $1,600 per month in income. The court found that the
husband receives annual disbursements “from the voluntary donations by the
. . . participants” in his ministry “from a high of $6,600 per year to a low of
$3,100 per year.” The court also found that “the ministry itself received
considerably more” donations, “ranging from $92,000 to $27,000.” The court
found that “apparently some of the [ministry’s] money is . . . given to the
[husband] as a housing allowance for a home that is also used by the ministry,
as well as a travel allowance.” The court further found that, although the
husband reported only $1,600 per month in income, he “shows a total of
$2,307.00 in monthly expenses.” In light of these findings, which are
supported by the record, we conclude that the record supports the trial court’s
determination that the husband has the ability to pay the wife $400 in monthly
alimony until the parties’ real estate interests are sold.

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 Finally, the husband contends that because the real estate market is
“unpredictable,” in effect, the alimony award “can only be classified as
indefinite.” We disagree. The trial court specifically stated that the wife’s
alimony award ceased upon the sale of the marital real estate. Accordingly, the
alimony award is an award of a definite duration.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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