In the Matter of Michael Kurland and Jennifer Kurland

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0751, In the Matter of Michael Kurland
and Jennifer Kurland, the court on July 14, 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 in part, vacate in part, and remand.

The petitioner, Michael Kurland (husband), appeals the final decree of
the Circuit Court (Moore, J.) in his divorce from the respondent, Jennifer
Kurland (wife). He argues that the trial court erred in: (1) denying his motion
for contempt; (2) granting the wife a fault-based divorce; and (3) dividing the
marital estate.

As an initial matter, we note that a number of the husband’s arguments
are based upon his assertion that the trial court gave undue weight to the
wife’s testimony and insufficient weight to his testimony. Accordingly, we note
at the outset that “it is not our role to calculate how much weight a trial court
should accord specific evidence.” In the Matter of Choy & Choy, 154 N.H. 707,
714 (2007). We defer to the trial court’s judgment on such issues as resolving
conflicts in testimony, measuring the credibility of witnesses, and determining
the weight to be given evidence. In the Matter of Aube & Aube, 158 N.H. 459,
465 (2009). The trial court as fact finder may accept or reject, in whole or in
part, the testimony of any witness or party, and is not required to believe even
uncontroverted evidence. Id. at 466. We will affirm the trial court’s findings if
a reasonable person could have made such findings based upon the evidence
presented. Cook v. Sullivan, 149 N.H. 774, 780 (2003).

With these principles in mind, we address the husband’s first argument,
which is that the trial court erred in denying his motion for contempt. He
asserts that the wife should have been found in contempt for violating the anti-
hypothecation order in the temporary decree. The contempt power is
discretionary, and the proper inquiry is whether the trial court unsustainably
exercised its discretion. In the Matter of Conner & Conner, 156 N.H. 250, 253
(2007) (quotation omitted). The wife testified that she sold four appliances for a
total of $1,100 and that she used the money to purchase propane to heat the
house. She argues that she did not violate the court’s order because the order
allowed the parties to sell marital property to pay for necessary living expenses.
She also testified that the sale was necessary because the husband failed to
comply with the court’s order requiring him to pay one-half of the mortgage,
taxes, insurance, and other assessments related to the property, and that she
was unable to obtain his compliance through counsel. The court concluded
that the husband failed to meet his burden to prove that a finding of contempt
was warranted. Based upon this record, we conclude that the trial court
sustainably exercised its discretion in denying the husband’s motion for
contempt. See id.

The husband next argues that the trial court erred in granting the wife a
fault-based divorce on the ground of conduct that seriously injured her health
or endangered her reason. See RSA 458:7, V (2004). First, the husband
asserts that prior to the hearing, the court articulated a standard that the wife
would need to meet in order to obtain a divorce on such grounds, which
entailed “more than just testimony from neighbors and friends that [the
husband] has acted inappropriately.” The court also advised the wife that she
would need third-party, corroborating evidence, “more than a he said/she
said.” The husband argues that the court abandoned this standard when it
granted the wife a divorce on fault grounds based primarily upon her
uncorroborated testimony.

We first note that the court made its comments in the context of a
discussion with the parties as to whether testimony from each of the numerous
persons identified on their witness lists as “character references” would be
required for trial. We are not persuaded that the court’s comments were meant
to set an evidentiary standard for proving fault grounds for divorce. Moreover,
even assuming, without deciding, that the trial court incorrectly articulated the
standard for proving fault grounds, the court applied the correct standard in its
final decree. See In the Matter of Stapleton & Stapleton, 159 N.H. 694, 696-97
(2010) (trial court has inherent authority to correct its prior orders). The
husband argues that he was prejudiced by the court’s pre-hearing statements
because he voluntarily dismissed a number of his witnesses in reliance upon
them. However, the record fails to show that he raised this issue with the trial
court; accordingly, we conclude that it is not preserved for review. See In the
Matter of Peirano & Larsen, 155 N.H. 738, 744 (2007) (appellant must
demonstrate that he preserved his issues for appellate review by first raising
them in trial court); see also State v. Porter, 144 N.H. 96, 100-01 (1999) (rules
of preservation are not relaxed for a self-represented party).

The husband’s primary contention is that the evidence was insufficient to
grant the wife a divorce based upon conduct that seriously injured her health
or endangered her reason. Whether the husband’s conduct was sufficient to
grant a divorce on this ground depends upon whether such conduct seriously
injured the wife’s health or endangered her reason. See In the Matter of Henry
& Henry, 163 N.H. 175, 178 (2012). This is a question of fact for the trial
court. Id. We review sufficiency of the evidence claims as a matter of law, and

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uphold the findings and rulings of the trial court unless they are lacking in
evidentiary support or tainted by error of law. Knight v. Maher, 161 N.H. 742,
745 (2011) (brackets and quotation omitted). “[W]e accord considerable weight
to the trial court’s judgments on the credibility of witnesses and the weight to
be given testimony.” Id. (quotation omitted).

The wife testified that the husband had an explosive temper, misused
prescription drugs, and often yelled obscenities at her. She testified that on
one summer weekend toward the end of the marriage, she brought him lunch
at his office, which was located adjacent to the office of a woman with whom he
had been spending a considerable amount of time. When the wife arrived, the
husband became “explosively angry,” and told her to “[g]et the F out of here
and don’t ever come back.” The wife left, upset and crying. As she was
walking away, down a flight of stairs, the husband “start[ed] throwing wood
two-by-fours” at her, a few of which hit her.

The wife also testified that the husband would leave home for days at a
time, up to five nights per week, without informing her as to his whereabouts,
and that he sometimes would not answer his cell phone while he was away. As
a result, the wife developed sleep problems, for which she received medical
treatment. She testified that as a result of her husband’s behavior, she was
“always very nervous and anxious” and “had trouble eating.” She testified that
she lost approximately fifteen pounds, and that other teachers at her school
asked her why she was so thin. As a result, she avoided social contact with
people, a point that the wife’s neighbor corroborated.

In addition to this testimony, the trial court relied upon a domestic
violence final order of protection that had been issued to the wife. In the
protective order, the court found that the husband had abused the wife by
squeezing her foot, causing bruising, and by leaving a loaded ammunition
magazine on the garage floor with the purpose to terrorize her. The husband
argues that the trial court erred in taking judicial notice of this order. “The
general rule in this jurisdiction is that a contemporaneous and specific
objection is required to preserve an issue for appellate review.” In the Matter of
Mannion & Mannion, 155 N.H. 52, 54 (2007) (quotation omitted). Even
assuming, without deciding, that the husband’s passing reference to hearsay
evidence during his closing argument related to the protective order, we
conclude that it did not satisfy the contemporaneous and specific objection
requirement. See Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 668
(2006) (“An objection made later in the witness’s testimony, during cross-
examination by the defense, does not preserve this issue on appeal.”).

The husband also argues that the court allocated insufficient time at the
final hearing to address the wife’s fault ground claim. We decline to address
this issue because the record fails to show that he preserved it by raising it

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with the trial court. See In the Matter of Peirano, 155 N.H. at 744 (appellant
has burden to provide a record demonstrating that he raised his issues in the
trial court). Based upon this record, we conclude that the evidence was
sufficient to support the trial court’s decision to grant a divorce on the ground
of conduct that seriously injured the wife’s health or seriously endangered her
reason. See In the Matter of Henry, 163 N.H. at 178-79.

The husband next argues that the trial court erred in its division of the
marital estate. First, he argues that the court erred to the extent that it relied
upon its decision to grant a fault-based divorce. Having concluded that the
court did not err in granting a divorce on fault grounds, we find no error in its
consideration of fault in its property division. See RSA 458:16-a, II(l) (2004) (in
dividing marital estate, trial court may consider fault grounds).

The husband also argues that the court erred in awarding the wife one-
half of his pension according to the Hodgins formula. See Hodgins v. Hodgins, 126 N.H. 711, 715-16 (1985) (superseded on other grounds by RSA 458:16-a, I
(2004)). We afford trial courts broad discretion in determining matters of
property distribution in fashioning a final divorce decree. In the Matter of
Heinrich & Heinrich, 164 N.H. 357, 363 (2012). We review the trial court’s
division of the parties’ assets under our unsustainable exercise of discretion
standard. Id. at 363. If the court’s findings can reasonably be made on the
evidence presented, they will stand. Id.

“In Hodgins, we held that under certain circumstances, the
apportionment of future pension benefits may be determined according to a
formula.” Rothbart v. Rothbart, 141 N.H. 71, 73 (1996). “The formula is
comprised of three factors: (1) the marital assets distribution share; (2) the
percentage reflecting the number of months employed while married and prior
to the commencement of the divorce proceedings divided by the total number of
months employed; and (3) the amount of the monthly pension benefit.” Id.
The husband argues that without expressly quantifying each of the three
Hodgins factors, the court failed to adequately explain how the Hodgins
formula led it to conclude that the wife was entitled to one-half of his pension.

RSA 458:16-a, II (2004) creates a presumption that equal distribution of
marital property is equitable. In the Matter of Heinrich, 164 N.H. at 363.
“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 contribution of each party during the
marriage and the value of property contributed by each party.” Id. (quotation
omitted). RSA 458:16-a, IV (2004) requires the trial court to “specify written
reasons for the division of property which it orders.” See id. at 364.

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 In this case, the trial court, in rejecting both parties’ proposed final
decrees, stated that it was concerned that neither party’s proposed order
properly considered the length of the marriage, the parties’ contributions to the
marital estate, each party’s services as a “homemaker/provider,” the assets
brought into the marriage, and the steps each party took to maintain the
marital estate during the marriage. In consideration of these factors, the court
awarded the wife “one-half of the Petitioner’s State of New Hampshire law
enforcement pension as of the date of this Decree pursuant to the Hodgins
formula.” We construe the court’s order to provide the wife with a “marital
assets distribution share,” the first of the three Hodgins factors, of fifty percent,
with the actual pension award to be determined by applying all three Hodgins
factors. See Rothbart, 141 N.H. at 73 (listing factors); see also Hodgins, 126
N.H. 715-16 (applying formula where wife receives equal distribution of marital
assets). Given the record and the trial court’s narrative order, we conclude
that the court made sufficient written findings to support its decision. See In
the Matter of Heinrich, 164 N.H. at 364.

The husband next argues that the trial court erred in awarding the wife a
forty percent share of the $180,000 proceeds from the sale of the marital
residence. In dividing the sale proceeds, the trial court expressly considered
the length of the marriage, the parties’ financial contributions to the marriage,
the wife’s contribution as a homemaker, the parties’ pre-marital assets, and
each party’s contribution to the maintenance of the marital estate. The
husband argues that the court erred in crediting the wife’s testimony that she
contributed $40,000 of her pre-marital savings toward the household debt,
when she admitted on cross-examination that she could not provide
documents to support her testimony. As previously noted, the trial court is in
the best position to resolve conflicts in testimony, measure the credibility of
witnesses, and determine the weight to be given evidence. In the Matter of
Aube, 158 N.H. 465. Based upon this record, we cannot conclude that the trial
court unsustainably exercised its discretion in awarding the wife a forty
percent share of the proceeds from the sale of the marital residence. See In the
Matter of Heinrich, 164 N.H. at 365.

The husband next argues that the trial court erred in its division of the
proceeds from the sale of the Freedom and Tamworth properties. The court
awarded the wife twenty percent of the value of the land in Freedom, which the
husband purchased prior to the marriage, and an equal share in the value of
the trailer on the land, which was purchased during the marriage. The record
supports the court’s decision. See id.

The trial court also ordered the proceeds from the sale of the Tamworth
property to be divided equally. The husband argues that the court erred to the
extent that it relied upon its finding that the “Respondent [wife] reportedly

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contributed $56,000.00 towards the purchase price.” The husband correctly
asserts that there was no testimony to support such a finding; to the contrary,
the husband testified that he, not the wife, contributed $56,000 toward the
purchase price. The wife does not address this discrepancy in her brief. We
are unable to determine, based upon this record, whether the court based its
decision upon an erroneous finding as to the source of funds used to purchase
the property, or whether this is a drafting error. Accordingly, we vacate the
court’s division of the Tamworth property and remand for the court to clarify its
decision. See In the Matter of Carr & Edmunds, 156 N.H. 498, 506 (2007)
(declining to address issue without clear finding by trial court and remanding
for clarification).

The husband challenges several other aspects of the trial court’s property
division. First, he challenges the court’s division of the marital debts. The
court found that the parties maintained separate bank accounts and separate
credit cards, and that the wife made monthly payments to the husband during
the marriage to pay her share of the marital debt. Accordingly, the court
ordered each party to assume and be solely responsible for debts held in his or
her name. Next, the husband challenges the court’s award of both dogs to the
wife. The court awarded both dogs to the wife based upon its finding that she
was the person primarily responsible for their care. Finally, the husband
challenges the court’s order holding him solely responsible for the E-Z Pass
debt. The trial court found that the husband cancelled the E-Z Pass credit
card payment option without informing the wife, and that the wife stopped
using the E-Z Pass once she learned that the husband cancelled the payment
option. Each of the husband’s challenges is based upon the trial court’s
credibility determinations and the weight it gave to the evidence presented. We
conclude that the record supports the trial court’s findings and that with
respect to each of these issues the court sustainably exercised its discretion in
its property division. See Cook v. Sullivan, 149 N.H. at 780; In the Matter of
Heinrich, 164 N.H. at 365.

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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