In the Matter of Wayne Sarette and Linda Sarette

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0574, In the Matter of Wayne Sarette and
Linda Sarette, the court on August 10, 2015, issued the
following order:

Having considered the brief, 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 in part, vacate in part, and remand.

The respondent, Linda Sarette (wife), appeals a final decree of the Circuit
Court (Moore, J.) in her divorce from the petitioner, Wayne Sarette (husband).
She argues that the trial court erred in: (1) denying her claim for a fault-based
divorce; (2) allegedly awarding two snowmobiles and two ATVs to the parties’
two children; (3) including funds held in an education savings account as an
asset awarded to her; (4) not requiring the husband to disclose certain records
relevant to the value of his plumbing business; (5) awarding insufficient
alimony; and (6) relying upon the husband’s appraisal to value the marital
home.

The wife first argues that the trial court erred in denying her claim for a
fault-based divorce. Whether the irremediable breakdown of the marriage was
caused by irreconcilable differences or the fault of one of the parties is a factual
question for the trial court. In the Matter of Martel & Martel, 157 N.H. 53, 61-
62 (2008). We will affirm the trial court’s factual findings unless the evidence
does not support them or they are legally erroneous. Id. at 62. The trial court
here found that “the stress of financial worries, [the] wife’s emotional and
physical health, the lack of common interests, and the parties’ gradual and
growing unhappiness” caused the breakdown of the marriage. Although the
wife testified that the husband told her that she would receive “nothing” in the
divorce, that he would “scream at [her] and ask . . . when [she] was getting out
of his house,” that he told her that she was “worthless,” and that, prior to one
counseling appointment, he told her that he had a girlfriend, the record
supports the trial court’s finding that the marriage had already broken down as
a result of irreconcilable differences before these and other events the wife
relied upon had occurred. See id.

The wife next argues that the trial court erred in its property division
because, she alleges, the court “apparently adopted” the husband’s proposal to
award two snowmobiles and two ATVs in his possession to the two children.
The trial court is afforded broad discretion in determining matters of property
distribution when fashioning a final divorce decree. In the Matter of Costa &
Costa, 156 N.H. 323, 326 (2007). We will not overturn the trial court’s decision
absent an unsustainable exercise of discretion or error of law. Id. The wife
testified that she did not want the snowmobiles or ATVs. The husband testified
that he did not want the vehicles, either, because he had a snowmobile and an
ATV of his own, and the vehicles in dispute were used by the children. The
husband proposed awarding the vehicles to the children, adding, “If they don’t
want them, they can sell them and use the money for whatever they want.”
The trial court did not award the vehicles to the children, but awarded the
husband “the boat and all of the motor vehicles in his possession,” which it
valued at $8,750. The husband’s evidence showed that his equity in the boat
and motor vehicles was $8,750 exclusive of the two snowmobiles and two ATVs
at issue. Thus, it appears that the court assigned no value to the vehicles in
dispute. Because neither party wanted the vehicles, we cannot conclude that
the trial court erred in awarding them to the husband and assigning them no
value. See id.

The wife next argues that the trial court erred by including $8,541 held
in an Edward Jones account as an asset awarded to her pursuant to the
decree. She argues that more than $3,000 of that figure consists of funds she
holds in Coverdell education savings accounts as custodian for the children.
At trial, the court agreed that such sums “should be deducted from [the wife’s]
accounts.” See RSA 458:16-a, III (2004) (When a party retains an ownership
interest in an educational savings account, the trial court has the discretion to
“preserve the account for its original purpose,” rather than treating it as
property subject to equitable division.). On appeal, the husband agrees that
the trial court made a “minor math mistake” by not deducting the amount the
wife holds as custodian for the children; however, he does not agree with the
wife’s calculation of the amount that should be deducted. Accordingly, we
vacate the property award to the limited extent that it awarded the Edwards
Jones account to the wife, and remand for the court to clarify its ruling on this
issue and to make any additional factual findings and rulings that may be
necessary to support its decision. See RSA 458:16-a, IV (2004) (requiring trial
court to “specify written reasons for the division of property which it orders”).
In light of this math error, the trial court may make such other adjustments to
the property division as may be necessary to achieve the equitable distribution
it had intended.

The wife next argues that the trial court erred in not requiring the
husband to disclose certain accounts receivable and other records relevant to
the value of his business. The value of a business is a question of fact to be
determined by the trial court based upon the particular facts and
circumstances. See In the Matter of Cottrell & El-Sherif, 163 N.H. 747, 749
(2012). We will not disturb the trial court’s findings unless they are
unsustainable on the record. Id. It is the wife’s burden as the appealing party
to provide an adequate record to demonstrate error. Coyle v. Battles, 147 N.H.
98, 100 (2001). The transcript of the final hearing shows that as the wife’s
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counsel was finishing her cross-examination of the husband, she then engaged
in a colloquy with the court and opposing counsel regarding pretrial discovery
of the husband’s business records. The wife’s counsel asserted that she
needed profit and loss statements, accounts receivable as of January 1, 2014,
and a “monthly breakdown on the sales journal.” The husband, who remained
on the stand during the colloquy, testified that he did not know whether the
business “even generate[s] such a thing,” but offered to “call [his] accountant”
and “find out.” The wife failed to provide a record of subsequent proceedings or
court rulings to show how this issue was resolved. Accordingly, we conclude
that the wife has failed to provide a record sufficient to show error. See id.

The wife next argues that the trial court erred in its alimony award. 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 amount of alimony awarded must be sufficient to cover
the wife’s needs, within the limits of the husband’s ability to pay. Harvey, 153
N.H. at 433; see RSA 458:19, I (Supp. 2014). The wife first argues that the trial
court miscalculated the husband’s ability to pay alimony because his business
pays for many of the personal expenses he listed on his financial affidavit. This
fact did not, however, escape the trial court’s attention. After noting that the
husband claimed monthly personal expenses of $7,163, the court specifically
found that “[t]he business pays for many of husband’s personal expenses.” The
court also found that the husband’s business pays for the wife’s health
insurance, at a cost of $643 per month, her car loan payment, at a cost of $465
per month, and her car insurance and registration, at a cost of $81 per month.
The court ordered that the “[h]usband or the business shall continue to pay
these expenses.” Based upon this record, we conclude that the wife has failed
to show that the trial court miscalculated the husband’s ability to pay alimony
as a result of this arrangement with his business. See Fowler, 145 N.H at 519.

The wife also argues that the court failed to award sufficient alimony.
She sought an alimony award of $4,500 per month for nine years. The trial
court awarded the wife $1,500 per month until the husband’s child support
obligations end and $2,700 per month thereafter, ending after a total period of
six years of alimony payments. The trial court found that “[t]he total amount of
monthly support that [the] wife will receive for the next six years, including the
car and insurance payments, is approximately $4,000 per month, less than
what she needs, but as much as the husband can pay.” The court noted that
the wife “should be able to supplement her income by increasing her
bookkeeping and accounting business.” We conclude that the record supports
the court’s alimony award. See id.

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 Finally, the wife argues that the trial court erred in its selection of the
valuation date for the marital home, which the court awarded to the husband.
Trial courts are free to exercise their sound discretion in establishing an
appropriate valuation date for the equitable distribution of marital assets. In
the Matter of Nyhan and Nyhan, 147 N.H. 768, 771 (2002). The wife provided
the trial court with an appraisal from January 2013 valuing the marital home
at $340,000. The husband provided the court with an appraisal from August
2013 valuing the home at $310,000. The court found the husband’s appraisal
to be more reliable because: (1) it was closer in time to the final hearing; (2) it
used more comparable sales data; (3) it made fewer adjustments to comparable
sales; and (4) the average distance between the marital home and the
comparable sales was shorter. On appeal, the wife suggests that because the
court ordered the husband to refinance the mortgage within ninety days, and
to remove the wife’s name from the mortgage, it would be more equitable for
the court to choose the refinancing date as the valuation date. The wife cites
no authority requiring the trial court to select the valuation date in such a
manner. Based upon this record, we conclude that the trial court sustainably
exercised its discretion in selecting the August 2013 valuation date for the
marital home. See id.

Affirmed in part; vacated in
part; and remanded.

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

Eileen Fox,
Clerk

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