In the Matter of John Tucker, II and Holly Tucker

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0658, In the Matter of John Tucker, II
and Holly Tucker, 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 petitioner, John Tucker, II, appeals a final decree issued by the Circuit
Court (LeFrancois, J.) in his divorce from the respondent, Holly Tucker. See RSA
458:16-a (2004); RSA 458:19 (Supp. 2014). He contends that the trial court
erred in the distribution of marital assets by: (1) finding that the equity in the
respondent’s motor vehicle was approximately $1,892; (2) not taking into
consideration its finding that “the equity created in Respondent’s vehicle was the
result of payments made solely from Petitioner’s business income”; (3)
miscalculating the value of the assets awarded to the respondent, thereby
miscalculating the payment required from him to equalize the property
distribution; (4) ordering him “to make monthly payments of $1,000 directly to
Respondent as periodic payments toward the amount of joint debt assigned to”
him; and (5) “failing to recognize[,] and[ ] draw the inferences necessary to
correct, the disability imposed on [him] by [the respondent’s] failure to provide
the Court with facts necessary to substantiate her claims about the use of her
credit cards to support the marital household during the course of the marriage.”
He further contends that the trial court erred in awarding the respondent
alimony by failing to analyze her ability to support herself in the standard of
living to which she was accustomed during the marriage and her reasonable
needs.

We first address the distribution of marital assets. In reviewing the trial
court’s distribution of marital property as part of a final decree of divorce, it is not
our role to reweigh the equities in the case and divide the property accordingly.
In the Matter of Heinrich & Heinrich, 164 N.H. 357, 365 (2012). Rather, our
limited role is to determine whether the trial court’s decision was a sustainable
exercise of discretion. In the Matter of Henry & Henry, 163 N.H. 175, 183 (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). If the trial court’s findings can reasonably
be made on the evidence presented, they will stand. Henry, 163 N.H. at 183.
 RSA 458:16-a, II creates a presumption that an equal distribution of
marital property is equitable. “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). A trial court is
not precluded from awarding a particular asset in its entirety to one party.
Henry, 163 N.H. at 183. 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). As the fact finder,
the trial court is entitled to accept or reject, in whole or in part, the testimony of
any witness or party, and is not required to believe even uncontroverted evidence.
Henry, 163 N.H. at 181.

In his financial affidavit, the petitioner represented that the equity in the
respondent’s vehicle was $1,892. He did not move to amend his financial
affidavit. Therefore, we conclude that the trial court’s adoption of this figure was
reasonable. See Salesky, 157 N.H. at 708. The trial court found that “[t]his is a
long term marriage, which supports an equal distribution of assets,” that “[b]oth
parties made contributions into the marriage,” and that “[b]oth parties made
non-economic contributions to the marriage as parents and partners.” Therefore,
the source of the funds used to purchase an asset during the marriage does not
control the distribution of that asset. See Henry, 163 N.H. at 183 (trial court may
award marital asset in its entirety to one party). We conclude that the trial
court’s determination of the equity in the respondent’s vehicle is supported by
the record. Accordingly, we reject the petitioner’s argument that “[t]he trial
court’s finding regarding the equity in Respondent’s vehicle resulted in
disproportionate equalization of the value of property in Respondent’s favor.”

The trial court found that the amount owed on certain credit cards in the
respondent’s name was joint debt and that “[i]t would be fair for the parties to
evenly divide the debt that accrued on the credit cards.” It ordered the petitioner
to pay the respondent “a monthly amount of $1000 per month for 17.5 months
towards the debt, and [the respondent] shall be responsible for the remaining
debt payments to creditors.” The petitioner argues that “[t]here is no obligation
imposed upon Respondent to use those funds to make payments to the creditors
found to be joint creditors.” However, because the credit cards are only in the
respondent’s name, the trial court correctly observed that the petitioner “is not
obligated on the debt, only [the respondent] is. . . . Should she fail to pay, his
liability is limited.”

The petitioner argues that the trial court’s finding that “[t]he weight of
credible evidence suggests that these credit cards were used for family expenses.
. . . [and] should be considered marital debt” was “contrary to the weight of the
evidence provided by Respondent herself.” However, the respondent testified that
the family “lived on credit” and that, in the years when the petitioner’s business
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income was low, “anything that we could put on credit, we put on credit.” The
petitioner testified that he did not pay attention to household finances. We
disagree with the petitioner’s contention that the trial court “committed an
unsustainable exercise of discretion by shifting the burden of proof regarding
credit card payments used to support the household from [the respondent] to
[him], where access to the evidence necessary to support [his] claims was in [the
respondent’s] sole control.” We defer to the trial court’s determination of the
weight given to specific evidence. See Henry, 163 N.H. at 183.

The petitioner argues that the trial court erred by failing to draw a negative
inference from the respondent’s failure to provide her credit card statements for
years past to support her claim that the credit cards were used for household
purposes. However, the respondent testified, and the petitioner did not contest,
that she executed authorizations to allow the petitioner to obtain the credit card
information. Furthermore, she testified that the credit card statements for prior
years were in the marital home, which the petitioner occupied, and that he
denied her access to the home to find them. In fact, the petitioner submitted the
records covering January 2010 to January 2012 for one of the respondent’s
credit cards, which supported the trial court’s finding that it had been used for
household purposes. Therefore, we conclude that the trial court’s decision not to
draw a negative inference from the respondent’s failure to produce the rest of her
credit card statements from prior years was not unreasonable or untenable.

The petitioner argues that the trial court’s order is unsustainable because
it “places [him] in the position of further litigating the question of the property
division’s eligibility for discharge as a property obligation in bankruptcy or is [sic]
in the nature of a non-dischargeable support obligation.” However, the trial court
stated that “[t]he orders for [the petitioner] to pay off the debt in installments to
[the respondent] are in lieu of the Court ordering him to make a lump sum
payment to her to account for his part of the obligation . . . . This is structured
as a property settlement order.” Furthermore, the trial court directed that
“[s]hould [the respondent] file for bankruptcy, [the petitioner’s] obligation to her
would need to be disclosed as an asset.” But cf. Johnson v. Coe, 142 N.H. 182,
186 (1997) (stating bankruptcy court may look beyond four corners of divorce
decree to make a finding that the payments were in the nature of alimony even
where the divorce decree included a waiver of alimony). The petitioner argues
that “Respondent is able to defeat the clear intent of the trial court’s order by
seeking discharge of her portion of the joint debt using Petitioner’s obligation to
compromise her portion of the debt.” Because the record does not demonstrate
that the petitioner raised this argument to the trial court, we decline to address
it. See Fam. Div. R. 1.26(F); N.H. Dep’t of Corrections v. Butland, 147 N.H. 676,
679 (2002). We note that the same argument could be made had the trial court
ordered the petitioner to pay a lump sum to satisfy his portion of the marital
debt.

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 The petitioner notes that the trial court granted his requested finding
regarding the credit card debts, which indicated that they had been “charged off
[or] written off.” However, he does not explain the significance of this finding,
and, in the absence of any developed argument, we decline to reverse the trial
court’s allocation of debt. See State v. Blackmer, 149 N.H. 47, 49 (2003). We
conclude that the record establishes an objective basis sufficient to sustain the
trial court’s distribution of the marital assets. See Henry, 163 N.H. at 183.

We next address the alimony award to the respondent of $485 per month
for three years. RSA 458:19, I, authorizes the trial court to award alimony if: (1)
the party in need lacks sufficient income, property, or both to provide for her
reasonable needs, considering the style of living to which the parties have become
accustomed during the marriage; (2) the payor is able to continue to meet his
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. We review the trial court’s decision regarding alimony
under our unsustainable exercise of discretion standard. Henry, 163 N.H. at
182.

In determining an amount of alimony, a trial court must 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; the fault of either party as defined in RSA 458:16-a, II(l); and the federal
tax consequences of the order. RSA 458:19, IV(b). Further, the court may
consider the economic contribution of each party to the value of the parties’
respective estates, as well as non-economic contributions to the family unit. RSA
458:19, IV(d).

The petitioner “acknowledge[s] that [his] historic support of his own
reasonable needs and the reasonable needs of Respondent and the parties’
children provides sufficient objective basis to support the finding” that he is able
to meet his reasonable needs while meeting those of the respondent. See RSA
458:19, I(b). The petitioner states that “[t]he trial [court] erred by utilizing [his]
income from 2012 and 2013, his highest earnings in the history of his business.”
However, he does not develop this argument, so we decline to address it. See
Blackmer, 149 N.H. at 49.

The petitioner argues that “the trial court erred when it did not conduct the
analysis . . . regarding Respondent’s ability to be self supporting” and that it
“lacked a sufficient objective basis to support the finding . . . that Respondent is
unable to be self supporting through appropriate employment.” The trial court
awarded the petitioner his business, his business equipment, and the marital
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home. The trial court found that during the parties’ twenty-seven year marriage,
the respondent had “historically” earned less than the petitioner and that the
petitioner “has more potential to increase his income in the future relative to
hers.” It considered the respondent’s contributions to the petitioner’s business
and her care of the parties’ children. Although it noted that the respondent’s
income fell short of her claimed expenses “by approximately $1,100 per month
on paper,” it awarded her significantly less than that amount in alimony.

The petitioner argues that the trial court failed to assess the respondent’s
reasonable needs in light of its grant of his requested finding that during the
marriage the parties enjoyed a modest standard of living. However, the trial
court considered the respondent’s discretionary and non-recurring expenses and
the fact that she is sharing accommodations with a roommate. It awarded her
only a portion of the shortfall between her income and her claimed expenses. We
conclude that the trial court’s alimony award is reasonable and supported by the
record. See Henry, 163 N.H. at 182.

Affirmed.

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

Eileen Fox,
Clerk

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