In the Matter of Diane Malinick and John Malinick

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0586, In the Matter of Diane Malinick and
John Malinick, the court on September 19, 2016, 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, John Malinick (husband), appeals the final decree of the
Circuit Court (Patten, J.) in his divorce from the petitioner, Diane Malinick
(wife). He argues that the trial court erred in: (1) not deducting the value of
the garage before dividing the equity in the marital residence; (2) ordering him
to reimburse the wife $50,000 she paid to reduce the home equity line of credit
on his prior residence; (3) ordering him to reimburse the wife for certain
expenses related to his prior residence; (4) not ordering the wife to reimburse
him for three checks he paid to her totaling $114,200; and (5) awarding the
marital residence to the wife.

The husband first argues that the trial court erred by not deducting the
value of the garage, and awarding that value to him, before dividing the equity
in the marital residence equally. The trial court is afforded broad discretion in
determining matters of property distribution when fashioning a final divorce
decree. In the Matter of Ramadan & Ramadan, 153 N.H. 226, 232 (2006).
We will not overturn the trial court’s decision absent an unsustainable exercise
of discretion. Id. “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 Letendre &
Letendre, 149 N.H. 31, 35 (2002). “If the court’s findings can reasonably be
made on the evidence presented, they will stand.” Id. at 36. Under RSA
458:16-a, II (2004), an equal division of property is presumed equitable unless
the trial court decides otherwise after considering one or more of the factors
designated in the statute. Id. at 35.

In this case, the court recognized that the husband had reimbursed the
wife for her contribution to the cost of constructing the garage. However, the
court also found that, overall, the wife had paid “the vast majority” of the costs
of constructing the marital home, while the husband had contributed “the vast
majority” of the labor required. Based upon the parties’ evidence, the court
concluded that “the parties are in an equal position relative to the value” of the
marital residence and divided the value of the marital residence equally. Based
upon this record, we cannot conclude that the trial court unsustainably
exercised its discretion by not subtracting the value of the garage, and
awarding that value to the husband, before dividing the equity in the marital
residence equally. See In the Matter of Ramadan, 153 N.H. at 232.

The husband next argues that the trial court erred in ordering him to
reimburse the wife $50,000 that she paid to reduce the home equity line of
credit on his residence in Baltic, Connecticut. He argues that because he used
the money to pay costs of constructing the marital home, rather than to
increase the equity in the Baltic home, the trial court should have considered
the money to be part of the wife’s financial contribution to the marital home.
The wife testified that she paid the money to reduce the line of credit that was
secured by the Baltic home. The trial court found that “[t]here [were] so many
conflicts in the [husband’s] testimony about cash resources, where money
came from to pay . . . home construction costs and what money was used for
what purposes,” that it “assigned only limited credibility to [his] testimony.”
We defer to a 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
uncontested evidence. Id. at 466. We find no reason to disturb the trial court’s
credibility determinations in this case, and conclude that the trial court was
not compelled to find that the money was part of the wife’s financial
contribution to the marital home. See id.

The husband next argues that the trial court erred in ordering him to
reimburse the wife $3,000 for septic repairs and $517.98 for other expenses at
the Baltic home. He argues that the order is contrary to the evidence that he
paid the septic repair bill, and contrary to the parties’ testimony that they
divided regular household expenses equally. The wife provided evidence that
she paid $3,517.98 for repairs and other work necessary to prepare the Baltic
property for sale, including one-half of the cost of the septic repair. The trial
court credited the wife’s testimony and found that the $3,517.98 was used to
prepare the Baltic property for sale. As previously noted, we defer to the trial
court’s credibility determinations. In the Matter of Aube, 158 N.H. at 465.
We conclude that the trial court was not compelled to find that the expenses
were regular household expenses, see id., and that the record supports the
court’s finding that the wife paid $3,517.98 to prepare the Baltic property for
sale, see In the Matter of Letendre, 149 N.H. at 36.

The husband next argues that the trial court erred in not ordering the
wife to reimburse him for three checks he paid to her totaling $114,200. He
asserts that the funds constituted proceeds from the sale of the Baltic
residence, which he acquired prior to the marriage, and that the proceeds
should be awarded to him. The wife testified that the checks reimbursed her
for payments she made toward the construction of the marital home. The trial

2
court credited the wife’s testimony, and we find no reason to disturb its
credibility determination. See In the Matter of Aube, 158 N.H. at 465.

Finally, the husband argues that the trial court erred in awarding the
marital home to the wife, and ordering her to pay him for his share of the
equity, with the previously noted adjustments. He argues that the court should
have awarded the marital home to him because he has a stronger attachment to
the property. Essentially, the husband is asking this court to reweigh the
equities in the case. However, it is for the trial court to determine a division of
the estate that is “just” based upon the evidence presented and the equities of
the case. In the Matter of Letendre, 149 N.H. at 35. Our role is to determine
whether there is support in the record for the court’s determination. In the
Matter of Heinrich & Heinrich, 164 N.H. 357, 365 (2012). Based upon our
review of the record, we cannot conclude that the trial court unsustainably
exercised its discretion in awarding the marital home to the wife. See id.

To the extent that the husband argues that the court failed to provide
sufficient reasons for its decision, we first note that he did not request specific
findings and rulings of law before the court issued its narrative order. RSA
458:16-a, IV (2004) requires that the court specify written reasons for the
property division it orders. “The purpose of requiring a written decision stating
the findings of fact and rulings of law is to provide a basis for presenting this
court the questions of law arising on the facts found by the trial court.” Geiss
v. Bourassa, 140 N.H. 629, 632-33 (1996) (quotation and ellipsis omitted).
“This purpose is fulfilled when the trial court files, in narrative form, findings of
fact which sufficiently support the decision.” Id. (quotation and brackets
omitted). In this case, the trial court provided a seven-page narrative order
specifying the reasons for its property division. We conclude that the court’s
order provides a sufficient basis to support its decision. See id.

Affirmed.

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

Eileen Fox,
Clerk

3