In the Matter of Suzanne Brule and Robert Brule

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0357, In the Matter of Suzanne Brule and
Robert Brule, the court on April 3, 2015, issued the following
order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The respondent, Robert Brule (husband), appeals a final decree of the
Circuit Court (Lawrence, J.), in his divorce from the petitioner, Suzanne Brule
(wife). He argues that the trial court erred in: (1) awarding the wife alimony
based upon his anticipated retirement benefits from a non-assignable pension;
(2) admitting, and relying upon, the wife’s present value appraisal of his
pension; (3) failing to divide the pension pursuant to the Hodgins formula;
(4) awarding lifetime alimony to the wife; and (5) failing to consider certain
factors in determining the amount of the alimony award.

The husband first argues that the trial court erred in awarding the wife
alimony of $1,800 per month based upon his anticipated pension benefits,
given the parties’ agreement that the pension is not assignable. The trial court
is afforded broad discretion in awarding alimony. In the Matter of Harvey &
Harvey, 153 N.H. 425, 430 (2006), overruled on other grounds by In the Matter
of Chamberlin & Chamberlin, 155 N.H. 13, 15-16 (2007). We will not overturn
its decision on such matters unless it is lacking in evidentiary support or
tainted by error of law. In the Matter of Fowler & Fowler, 145 N.H. 516, 519
(2000).

The record shows that the husband has a pension from the City of
Manchester. According to the member benefit statement the husband
submitted at the final hearing, if he retires at age sixty, his estimated monthly
pension will be $3,678.51 per month for life. At the time of the hearing, the
husband was fifty-two years old, and the wife was fifty-three years old. For
purposes of their divorce, the parties agreed that the husband’s pension is not
divisible marital property, and the trial court, for purposes of its decree,
accepted their agreement. The trial court reasoned, however, that if the
pension were divisible, the wife would be entitled to fifty percent of the benefits
that accrued during the marriage. Accordingly, the trial court determined that
it would be equitable to award the wife alimony of $1,800 per month,
approximately one-half of the husband’s expected monthly benefit if he retires
at age sixty, starting when the husband retires.
 The husband argues that the trial court erred in considering the pension
in determining the amount of alimony to award the wife because the pension is
not assignable. We disagree. RSA 458:19, IV(b) (2004) provides that “[i]n
determining the amount of alimony to be awarded, the court shall consider the
length of the marriage; the age, health, social or economic status, occupation,
amount and sources of income, the property awarded under RSA 458:16-a,
vocational skills, employability, estate, liabilities, and needs of each of the
parties; the opportunity of each for future acquisition of capital assets and
income . . . and the federal tax consequences of the order.” (Emphasis added.)
Included in this list of factors that the court must consider are the “amount
and sources of income” and the opportunity for future income. See RSA
458:19, IV(b). Accordingly, we conclude that the trial court did not err in
considering the husband’s anticipated pension benefits, a source of future
income, in determining the amount of alimony to be awarded to the wife.

The husband next argues that the trial court erred in admitting and
relying upon the wife’s appraisal of his pension because: (1) the wife failed to
disclose the appraisal in discovery; (2) the report was not properly
authenticated and lacked a proper foundation; and (3) it was inaccurate. The
trial court is not bound by the rules of evidence in divorce cases. 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, the
defendant must demonstrate that the trial court’s ruling was clearly untenable
or unreasonable to the prejudice of his case. Id. The wife submitted a report
from a pension appraiser for the purposes of determining an equitable
distribution of the pension. The report showed the present value of the
husband’s pension to be $515,531.24. However, as previously noted, the trial
court accepted the parties’ agreement that the pension is not divisible, and it
did not include the pension in its property division. Instead, the trial court
relied upon the member benefit statement the husband submitted to determine
his anticipated income in retirement. Upon this record, we conclude that the
husband has failed to demonstrate that the trial court’s decision to admit the
appraisal was clearly untenable or unreasonable to the prejudice of his case.
See id.

The husband next argues that if the trial court considered the pension to
be marital property, it should have applied the Hodgins formula. See Hodgins
v. Hodgins, 126 N.H. 711, 716 (1985), superseded by statute on other grounds
by RSA 458:16-a, I (2004). The record is clear, however, that the trial court
accepted the parties’ agreement that the pension was not divisible and did not
include it in the marital property division. The trial court further ordered that,

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“If the parties determine that husband’s pension is assignable, wife is awarded
a share of it pursuant to the Hodgins formula and when she begins receiving
benefits, husband’s alimony obligation will end.” Accordingly, we find no error.

The husband next argues that the trial court erred in awarding alimony
to the wife for her lifetime, asserting that such an award undermines the
rehabilitative purpose of alimony. Although we have recognized that the
primary purpose of alimony is rehabilitative, we have also recognized that “the
express language of the alimony statute dictates that alimony awards need not
be rehabilitative in all cases.” In the Matter of Nassar & Nassar, 156 N.H. 769,
777 (2008); see RSA 458:19, I (providing for alimony awards that are “either
temporary or permanent, for a definite or indefinite period of time”). In this
case, the trial court determined that an award of alimony is equitable in part
because, under the Hodgins rule, if the pension were assignable, the wife
would be entitled to fifty percent of it for the rest of her life or, if there is no
survivor’s benefit, until the husband’s death. The trial court determined that
“[e]quity requires that in place of the pension benefits, wife must have the
[same] steady stream of retirement income as husband.” The husband argues
that the trial court failed to consider his inability to meet his own reasonable
needs in the future and the wife’s ability to become self-sufficient. However,
the record shows that the trial court considered the husband’s expected future
income and expenses, including income and expenses during the period of his
anticipated retirement. The court also considered that the wife has no
retirement assets of her own. Pursuant to the decree, she will receive fifty
percent of the husband’s 401(k) account, which had a balance of approximately
$30,370 when the divorce petition was filed. The trial court also considered
that the wife is expected to receive less social security income than the
husband based upon their respective earning histories. The record supports
the trial court’s determination that a lifetime alimony award is equitable under
these circumstances. See In the Matter of Fowler, 145 N.H. at 519 (We will not
overturn a trial court’s alimony determination unless it is lacking in evidentiary
support or tainted by error of law.).

Finally, the husband argues that the trial court failed to consider
numerous other factors in determining the amount of the alimony award,
including that: (1) he has multiple jobs; (2) he has had to seek assistance from
a food pantry on occasion; (3) the wife forced him to close his business, which
has resulted in a loss of income; (4) the wife is unwilling to reside with her
brother, or to live outside of Manchester; (5) he has very little furniture, no
motor vehicle, and is supporting his daughter and grandson; (6) the wife is
receiving one-half of the equity in the home and other assets from the marital
estate; and (7) he occasionally supports the wife when they socialize together
with family. The trial court stated that it entered its decree “[a]fter
consideration of the parties’ testimony.” The fact that the trial court did not
discuss each of these factors in its order does not imply that the court did not
consider them. In re Jonathan T., 148 N.H. 296, 304 (2002). The husband

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also asserts that although the trial court stated in its order that it considered
the tax consequences of the alimony award, it failed to explain how the tax
consequences factored into its decision. In the absence of a party’s request,
the trial court is not obligated to make specific findings of fact. Id. We assume
the trial court considered each of these factors and found the alimony award to
be equitable. See id. Based upon this record, we cannot conclude that the
trial court unsustainably exercised its discretion in its alimony award. See In
the Matter of Harvey, 153 N.H. at 430.

Affirmed.

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

Eileen Fox,
Clerk

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