In the Matter of Philip Wyzik and Lisa Hayward-Wyzik

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0548, In the Matter of Philip Wyzik and
Lisa Hayward-Wyzik, the court on June 15, 2015, issued the
following order:

Having considered the briefs 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, Lisa Hayward-Wyzik, appeals the distribution of marital
assets in a final order issued by the Circuit Court (Yazinski, J.) in her divorce
from the petitioner, Philip Wyzik. See RSA 458:16-a (2004). She contends that
the trial court erroneously defined the marital estate by: (1) “failing to include
the full values of Petitioner’s retirement accounts”; (2) “adopting an out-of-date
real estate appraisal for the marital home”; (3) “reducing the value of the marital
estate by . . . the debts each party has incurred to send their respective children
(from their prior marriages) to college”; and (4) failing to “consider Petitioner’s
deliberate depletion of the marital estate.” She further contends that the trial
court erred by: (1) awarding a pet, for whose surgery she had paid, to the
petitioner; and (2) “relying on statutory factors insufficiently supported by
evidence and by failing to take into consideration factors for which credible
evidence had been provided.”

Marital property includes “all tangible and intangible property and assets,
real or personal, belonging to either or both parties, whether title to the property
is held in the name of either or both parties.” RSA 458:16–a, I. The trial court
first determines, as a matter of law, what assets are marital property under RSA
458:16–a, I, and thus subject to equitable distribution, and then exercises its
discretion to make an equitable distribution of those assets under RSA 458:16-a,
II. In the Matter of Goodlander & Tamposi, 161 N.H. 490, 495 (2011). Trial court
determinations under RSA 458:16–a, I, are reviewed de novo, while equitable
divisions of property pursuant to RSA 458:16–a, II are reviewed for an
unsustainable exercise of discretion. Id.

In reviewing the trial court’s distribution of marital property, our role is not
to reweigh the equities in the case and divide the property accordingly. In the
Matter of Heinrich & Heinrich, 164 N.H. 357, 365 (2012). “When we determine
whether a ruling made by a judge is a proper exercise of judicial discretion, we
are really deciding whether the record establishes an objective basis sufficient to
sustain the discretionary judgment made.” State v. Lambert, 147 N.H. 295, 296
(2001). We will not disturb the trial court’s determination if it could reasonably
be made. Heinrich, 164 N.H. at 365.

“In a divorce proceeding, marital property is not to be divided by some
mechanical formula but in a manner deemed ‘just’ based upon the evidence
presented and the equities of the case.” In the Matter of Sarvela & Sarvela, 154
N.H. 426, 431 (2006) (quotation omitted). The trial judge is in the best position
to evaluate the evidence, measure its persuasiveness, and assess the credibility
of witnesses. In the Matter of Salesky & Salesky, 157 N.H. 698, 708 (2008).

Pursuant to RSA 458:16-a, II, a trial court may determine that an equal
division of marital property is not equitable after considering one or more
statutory factors, including: “[t]he duration of the marriage,” RSA 458:16-a, II(a);
“[t]he age, . . . occupation, . . . employability,. . . [and] needs and liabilities of each
party,” RSA 458:16-a, II(b); “[t]he opportunity of each party for future acquisition
of capital assets and income,” RSA 458:16-a, II(c); “[t]he expectation of . . .
retirement rights acquired prior to or during the marriage,” RSA 458:16-a, II(i);
“[t]he value of any property acquired prior to the marriage,” RSA 458:16-a, II(m);
and “[t]he value of any property acquired by gift,” RSA 458:16-a, II(n). In
addition, the court may consider “[a]ny other factor that [it] deems relevant” in
equitably distributing the parties’ assets. RSA 458:16-a, II(o); Heinrich, 164 N.H.
at 364.

We first address the trial court’s distribution of the petitioner’s retirement
accounts. The respondent argues that the trial court excluded the petitioner’s
pre-marital retirement savings from the marital estate. However, we interpret the
trial court’s order as including the petitioner’s pre-marital retirement savings in
the marital estate and awarding that portion of his retirement savings to the
petitioner. See Salesky, 157 N.H. at 702 (stating interpretation of trial court
order is question of law, which we review de novo). The trial court found that the
petitioner was fifty-eight years old, that his “earning capacity and ability to
acquire capital assets and income in the future” were limited, and that he
“entered the marriage with an expectation that the retirement assets he
accumulated prior to marriage would benefit him in his retirement.” It granted
the petitioner’s requested finding of fact, listed under the heading “Marital
Assets,” that “[a]s of the date of the parties’ marriage, [he] had retirement savings
of $108,344.80.” The trial court also adopted the petitioner’s requested finding
detailing the “Total Net Estate,” which identified the value of the petitioner’s
retirement assets as “value at separation less pre-marital value.”

The respondent argues that the trial court “used different methods for
valuing the parties’ respective . . . retirement accounts” by applying a “hybrid
value” for the petitioner’s account, which did not include his pre-marital
retirements savings, while including “the balance of her accounts as of the date
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of the parties’ separation,” which presumably included her pre-marital savings.
However, we conclude that the trial court included all the petitioner’s retirement
assets in the marital estate and then awarded to him that portion of the
petitioner’s retirement assets attributable to his pre-marital savings. As a result,
we conclude that the trial court did not “improperly appl[y] the ‘Hodgins formula’”
as the respondent contends. See In the Matter of Nyhan and Nyhan, 147 N.H.
768, 770 (2002) (stating IRA and 401(k) accounts not subject to Hodgins rule); cf.
Hodgins v. Hodgins, 126 N.H. 711, 716 (1985) superseded on other grounds by
statute, RSA 458:16–a, as recognized in Nyhan, 147 N.H. at 770 (identifying
formula for equitably apportioning pension benefits when actual and contingent
benefits not ascertainable).

The respondent argues that “[h]ad [the petitioner] wished the trial court to
take into consideration the value of the parties’ respective retirement accounts as
of the date of the parties’ marriage, it was incumbent upon him to obtain and
supply this information [regarding her retirement accounts] to the court.”
However, the respondent knew that the petitioner had presented evidence of his
pre-marital retirement assets and that the trial court might consider that
evidence. If she wished the trial court to consider what portion of her retirement
assets were accumulated before the marriage, we conclude that it was incumbent
upon her to provide that information.

The respondent asserts, in a footnote, that “[t]here are mathematical
discrepancies between the numbers shown in the exhibits, Petitioner’s proposed
Findings 9-13 and the summary of assets Petitioner provided to the court in
proposed Finding 68, all granted by the court.” To the extent that the respondent
is challenging the order on the basis of the alleged mathematical discrepancies,
the record does not show that she brought these errors to the trial court’s
attention. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (holding
parties may not have judicial review of issues they did not raise in trial court).

We next address the trial court’s decision to accept the value placed upon
the marital home by the 2011 appraisal instead of by the 2014 appraisal. The
respondent notes that the trial court granted contradictory requests for findings
regarding which appraisal represented the fair market value of the house.
However, the record does not show that the respondent brought this conflict to
the trial court’s attention. See N.H. Dep’t of Corrections v. Butland, 147 N.H.
676, 679 (2002) (holding any issues that could not have been presented to trial
court prior to its decision must be presented to it in motion for reconsideration);
Fam. Div. R. 1.26(F). Furthermore, the trial court’s narrative order is clear. The
respondent agrees that the trial court adopted the 2011 appraisal: the trial court
found that the house had “equity of approximately $147,000,” which presumes a
fair market value of $307,000, the 2011 appraised value. Therefore, we conclude

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that any grant of contradictory requests for findings is harmless error. See Place
v. Place, 129 N.H. 252, 260 (1987) (holding inconsistent findings that do not
affect outcome are harmless error).

The respondent argues that the trial court erred “by adopting an out-of-
date real estate appraisal for the marital home.” She contends that “[t]he ‘finding’
that the 2014 house appraisal report was flawed . . . was substantially
unsupported by evidence in the trial” and that “the 2014 appraisal report was
much closer in time [to date of the parties’ 2013 separation, the valuation date
chosen by the court] than the 3-year old appraisal.” However, the trial judge is in
the best position to evaluate the evidence and to measure its persuasiveness.
Salesky, 157 N.H. at 708. The trial court could have accepted the 2011 appraisal
because that appraisal stated that it was prepared in connection with a
“mortgage finance transaction,” while the 2014 appraisal stated that its intended
use was for “divorce proceedings.” Therefore, we conclude that the trial court’s
decision to accept the 2011 appraisal was reasonable.

The respondent argues that the trial court erred by failing “to credit [her]
with the amount of the mortgage principal debt she had paid since the date of the
parties’ marital separation.” However, the petitioner testified, and the respondent
did not contest, that his rental payments after the parties separated were
equivalent to the mortgage payments on the house. Furthermore, following the
separation, the petitioner paid the mortgage on an undeveloped property, which
was included as a marital asset. Therefore, we conclude that the trial court
reasonably decided not to credit the respondent with her mortgage payments for
the approximately fifteen months from the date of separation to the date of
divorce.

We next address the parties’ student loan debt. The respondent argues
that the only student loan that should have been considered in dividing the
marital property was that attributable to her education. She argues that,
pursuant to RSA 461-A:21 (Supp. 2014), governing parental rights and
responsibilities, “a trial court does not have the jurisdiction to compel one spouse
to continue paying for a step-children’s [sic] college expenses absent the parties’
written agreement to do so.” To the extent that the respondent argues RSA 461-
A:21 is jurisdictional, she does not develop this argument, and we decline to
address it. See State v. Blackmer, 149 N.H. 47, 49 (2003). To the extent that the
respondent argues that the trial court lacked the authority to divide existing debt
attributable to the parties’ respective adult children’s college expenses, the record
does not show that she made this argument to the trial court. See Bean, 151
N.H. at 250. The respondent testified that, during the marriage, the parties paid
the student loan debts from their joint account. Therefore, we conclude that the
trial court’s decision to consider all the student loan debt was reasonable.

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 We next address the trial court’s decision not to award the respondent any
portion of the money the petitioner retained from the sale of his mother’s house.
Although the trial court granted the respondent’s requested finding that the
petitioner’s distribution of these funds to his children “constituted an unjustified
and deliberate dissipation of the marital estate irrespective of [the respondent’s]
voluntary waiver of a claim to any portion of those funds,” the respondent
testified that she did not feel she was in “any way entitled to” the money the
petitioner received from his mother. She agreed that she was not requesting that
the trial court impute any portion of that money to the petitioner. The
respondent argues that her “express relinquishment of her marital claim to those
funds . . . must be reconsidered in light of the overall asset distribution.”
However, the record does not reflect that she sought reconsideration from the
trial court. Therefore, the issue is not preserved for our review. See Butland,
147 N.H. at 679; Fam. Div. R. 1.26(F).

We next address the award of the pet. The respondent contends that her
“expenditures for the parties’ pet dog, which the court oddly awarded to
Petitioner, supported an award of the dog to her and not to Petitioner.” The
respondent testified that she did not ask the petitioner to contribute to the cost of
the dog’s surgery. The petitioner testified that the parties had four pets and he
sought two of them. We conclude that the trial court’s decision to award the
petitioner the two dogs he requested was reasonable.

We next address the respondent’s argument that “the court’s reliance on
statutory factors as a basis to award more than half of the marital estate to
Petitioner was not supported by sufficient credible evidence.” The respondent
contends that the evidence did not support “the court’s findings that Petitioner’s
ability to earn income and acquire future capital assets and income were limited.”
The petitioner testified that his employer was in danger of being put into
receivership, at which point he would lose his job. He also testified that the
decision regarding receivership was likely to be made in the coming week.
However, on the second day of the hearing, seven days after this testimony, the
respondent did not question the petitioner further regarding the status of his
employer, although she cross-examined him extensively. Therefore, we conclude
that the trial court was entitled to rely upon the petitioner’s testimony that his
job was in jeopardy. See Salesky, 157 N.H. at 708. Furthermore, although the
petitioner testified, “I'm probably working until I’m 70 or so,” the evidence showed
that he was fifty-eight at the time of the hearing, while the respondent was forty-
four.

The respondent argues that there was no evidence to support the trial
court’s finding that the petitioner “entered the marriage with an expectation that
the retirement assets he accumulated prior to marriage would benefit him in his
retirement.” The respondent acknowledges that “[i]t is probably fair to say that
any person who earns retirement benefits does so with the expectation those
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benefits will be available for that person’s retirement.” She argues that this
reasonable expectation was contradicted by the trial court’s granting of her
requested finding that “[d]uring the marriage the parties entirely integrated their
financial affairs” and that “there was ample and uncontradicted evidence
supporting a finding that . . . Petitioner had fully anticipated that his retirement
assets would be used for the support and benefit of both parties.” However, the
record shows that the petitioner was significantly older than the respondent, that
he entered the marriage with substantial assets, and that the marriage was not
long-term.

The respondent argues that the trial court failed to give any weight to her
contributions to the accumulation of marital assets or to the fact that her income
was substantially less than the petitioner’s. She contends that “[t]he unequal
property division was an abuse of discretion in a divorce in which no fault was
alleged and where the court specifically did not include the length of the parties’
marriage as a factor in its decision.” However, it is not our role to reweigh the
equities in the case. Heinrich, 164 N.H. at 365. We conclude that the record
establishes an objective basis sufficient to sustain the trial court’s discretionary
judgment. See id.

Affirmed.

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

Eileen Fox,
Clerk

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