In the Matter of Caren Logan and James Logan

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0588, In the Matter of Caren Logan and
James Logan, the court on March 10, 2017, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
respondent, James Logan, appeals, and the petitioner, Caren Logan, cross-
appeals, a final divorce decree of the Circuit Court (Foley, J.). We affirm in part
and reverse in part.

The trial court found, or the record supports, the following facts. The
parties married in May 2004 and have two minor children. Prior to their
marriage, the parties signed a prenuptial agreement, which they agree is valid
and enforceable. The prenuptial agreement prescribes the manner in which
the parties’ property is to be divided in the event that they divorce. As is
relevant here, the prenuptial agreement provides that property that is classified
as the “separate property” of the husband must be divided according to a
formula: the wife is entitled to one percent of the husband’s separate property
for every full year of marriage, up to a maximum of thirteen percent. The
prenuptial agreement defines the “separate property” of the husband to be “all
the property . . . which [the husband] now has or may hereafter acquire,
together with the income earnings, [and] appreciation and depreciation
thereof.” In contrast, the prenuptial agreement states that property titled in
the names of both parties as joint tenants with rights of survivorship is to be
“divided equally between the parties” in the event that they divorce.

The wife filed for divorce in 2013. At the final hearing, the parties
disputed, among other things, the length of their marriage for purposes of the
prenuptial agreement’s distribution formula: the husband argued that the
marriage ended when divorce proceedings were instituted, while the wife
contended that the marriage continued until a final judgment of divorce was
entered. After the final hearing, the trial court issued a final decree, in which it
granted a divorce on fault grounds, and addressed issues relating to the
division of property, child support, and the allocation of parenting time and
decision-making authority. Regarding the distribution formula, the trial court
concluded that, for purposes of the prenuptial agreement, the wife had been
married to the husband for eleven years, and was therefore entitled to an
award equal to 11% of the value of the husband’s separate property. Each
party filed a motion for reconsideration, which the trial court denied. This
appeal and cross-appeal followed.
I. Percentage Interest of the Husband’s Separate Patent Assets

We begin by addressing the husband’s claims on appeal. He first argues
that the trial court erred by awarding the wife 50% of his interest in certain
patent assets, including limited liability companies that owned various patents.
We agree.

By way of background, on the first day of the final hearing, the parties
filed a stipulation in the court relating to certain patent assets that the
husband owned either directly or through limited liability companies. The
stipulation is titled “STIPULATION REGARDING INTERESTS IN CERTAIN
PROPERTY PURSUANT TO PRENUPTIAL AGREEMENT,” and provides:

1. Certain of the assets that might be valued under the parties’
Prenuptial Agreement formula present significant valuation
difficulties. . . . .

3. Patents Owned by Limited Liability Companies:

A. In order to avoid valuation problems, [the wife] is awarded
a certain percentage, as determined by the Court, of [the
husband’s] percentage ownership of the following LLCs:
Personal Audio, Bringrr, and True Mail.

B. [The wife’s] interest shall be as a member of each of these
LLCs equal to her resulting percentage of [the husband’s]
membership interest. By way of example only, if [the
husband] has a 10% membership interest and [the wife]
is awarded a 10% interest in [the husband’s]
membership, [the wife] would have a 1% membership
interest in that LLC.

4. Patents Owned by [the Husband]:

A. There are three patents applications . . . owned directly
. . . by [the husband] as of the date of this Stipulation
. . . . [One] application may eventually issue in a useable
form. If and when it does it will be . . . placed in an
LLC. . . . [The wife] will then be issued a membership
interest in the LLC equal to the relative value of the
[patent] within the portfolio times the certain percentage
of assets, as determined by the court.

(Emphases added and omitted.)

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 The trial court interpreted the stipulation to modify the terms of the
prenuptial agreement in two material respects. First, the court concluded that
the stipulation authorized it to award the wife ownership interests in the LLCs
in lieu of a monetary award. Second, the court ruled that the stipulation
placed the patent assets “completely out of the process defined by the
[p]renuptial [a]greement,” such that the trial court was authorized to award the
wife a percentage interest exceeding the percentage set by the terms of the
prenuptial agreement. As a result, the trial court deemed the patent assets to
be marital property, and awarded the wife 50% of the husband’s interest in the
LLCs.

On appeal, neither party disputes that the stipulation authorized the
trial court to award the wife ownership interests in lieu of a monetary award.
Nor does either party contest that, at the time that it issued the final decree,
the trial court properly concluded that the wife was generally entitled to 11% of
the husband’s separate property under the prenuptial agreement. Rather, the
husband argues that the trial court erred when it concluded that the
stipulation superseded the general formula in the prenuptial agreement and,
therefore, authorized the court to award the wife a percentage interest in
excess of 11%. He contends that the clauses stating that the trial court would
“determine[]” the wife’s percentage interest are mere references to the trial
court’s responsibility to determine the length of the parties’ marriage for
purposes of the prenuptial agreement’s formula.

The wife counters that the trial court correctly interpreted the
stipulation. Relying upon the language in the stipulation that her percentage
interest was to be “determined by the court,” the wife argues that the
stipulation granted the trial court the “unfettered discretion to chose [sic] a
percentage of [the husband’s] patent interests to award [to the wife].” The wife
asserts that she was able to secure this concession from the husband because,
had he not agreed to it, the husband faced “the potential devaluation of [the
patent] assets” when the trial court valued them.

We agree with the husband and conclude that the stipulation did not
supersede the formula set forth in the prenuptial agreement. The stipulation
authorized the trial court merely to award ownership interests in lieu of
monetary awards—it did not authorize the court to disregard the formula in the
prenuptial agreement and award the wife 50% of the husband’s interest in the
patent assets.

“A stipulated agreement is contractual in nature and therefore is
governed by contract rules.” Public Serv. Co. of N.H. v. Town of Seabrook, 133
N.H. 365, 370 (1990). The interpretation of a contract is a question of law,
which we review de novo. Czumak v. N.H. Div. of Developmental Servs., 155
N.H. 368, 373 (2007). When interpreting a written agreement, we give the
language used by the parties its reasonable meaning, “considering the

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circumstances and the context in which the agreement was negotiated, and
reading the document as a whole.” Id. Absent ambiguity, the parties’ intent
will be determined from the plain meaning of the language used in the
agreement. Id.

The crux of the parties’ dispute is whether the two clauses in the
stipulation providing that the wife’s interest would be “determined by the court”
authorized the trial court to award the wife a percentage interest exceeding that
set by the terms of the prenuptial agreement. When the clauses are read in
isolation, both parties’ interpretations appear to be reasonable. However,
reading the document as a whole, and considering the circumstances in which
the stipulation was negotiated, we conclude that only the husband’s
interpretation is reasonable. Neither party contests that, at the time the
stipulation was executed, the parties disputed how to calculate the length of
their marriage for purposes of the prenuptial agreement. It is reasonable,
therefore, to interpret the clauses as references to the court’s responsibility to
resolve the parties’ dispute regarding the length of the marriage. In other
words, those clauses are mere acknowledgements that the court was tasked
with determining the length of the parties’ marriage and, consequently, the
correct percentage of the husband’s separate property to be awarded pursuant
to the terms of the prenuptial agreement.

Likewise, it is undisputed that, at the time the stipulation was executed,
the parties had already agreed that the prenuptial agreement was valid and
enforceable. Thus, the parties had no reason to set aside the distribution
formula and give the trial court unfettered discretion to determine the
percentage ownership interest in the LLCs that the wife would receive.
Although the wife asserts that, in order to persuade her to accept the
stipulation, the husband agreed to ignore the prenuptial agreement, the
stipulation contains no expression of that intent. Nor does the wife direct our
attention to anything in the record that supports her claim.

Further, the wife’s interpretation is at odds with the express purpose of
the stipulation: to avoid the “significant valuation difficulties” associated with
valuing the patents. See Walsh v. Young, 139 N.H. 693, 695 (1995);
Restatement (Second) of Contracts § 202(1), at 86 (1981) (stating that “if the
principal purpose of the parties is ascertainable it is given great weight” in
contract interpretation). As devised by the parties, the solution to the
valuation problem was to authorize the trial court to award ownership interests
in the holding LLCs in lieu of monetary awards. This would allow the trial
court to avoid valuation entirely and would also ensure that the wife received a
percentage of the patent assets that was proportional to her overall award
under the prenuptial agreement. In contrast, merely changing the method by
which the wife’s percentage interest was determined—from the formula set
forth in the prenuptial agreement to the exercise of discretion by the trial
court—would not have resolved the difficulties in valuing the patents.

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 Finally, we note that only the husband’s interpretation is consistent with
the title of the stipulation: “STIPULATION REGARDING INTERESTS IN
CERTAIN PROPERTY PURSUANT TO PRENUPTIAL AGREEMENT.” “A title,
like every other portion of a contract, may be looked to in determining [the
contract’s] meaning . . . .” 17A Am. Jur. 2d Contracts § 372 (2017); see also
Great Am. Dining v. Philadelphia Indem. Ins. Co., 164 N.H. 612, 618-24 (2013)
(considering captions in interpreting insurance policy). Here, the title suggests
that the stipulation concerns property subject to, rather than removed from,
the prenuptial agreement. See Black’s Law Dictionary 1431 (10th ed. 2014)
(defining “pursuant to” as “[i]n compliance with” or “in accordance with”).

For these reasons, we conclude that the stipulation did not empower the
trial court to disregard the formula in the prenuptial agreement. Accordingly,
the trial court erred when it awarded the wife 50% of the husband’s interest in
the patent assets. The wife is entitled to 11% of the husband’s interest in the
LLCs, as provided by the prenuptial agreement.

II. Promissory Notes’ Value

The husband next argues that the trial court erred by valuing two
promissory notes at their face value, rather than at a lesser value that reflects
the diminished value of the property securing the notes. The record
establishes that in 2012, the husband obtained the promissory notes as part of
what he characterized as a “land banking transaction,” the purpose of which
was to trigger a taxable event and to obtain advantageous federal tax treatment
of capital gains arising out of his ownership of two properties. In order to do
so, the husband sold the two properties to two real-estate holding companies
that he owns. In exchange for the properties, the husband received the two
promissory notes from the companies. The notes have a face value of
approximately $1.4 million, a maturity date of December 28, 2017, and are
secured by mortgages on the properties.

At the final hearing, the parties stipulated that the value of the properties
had decreased between 2012 and 2015, such that the face value of the notes
was greater than the then-current value of the properties. Nonetheless, at the
final hearing, the husband testified that, notwithstanding the diminished value
of the properties, he still intends to “pay off” the promissory notes in full.

In the final decree, the trial court classified the notes as the husband’s
separate property, and valued the notes at their face value, declining to reduce
the notes’ value to account for the diminished value of the securing properties.
Consequently, the trial court included the face value of the notes when it
divided the husband’s separate property pursuant to the prenuptial agreement.

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 The husband argues on appeal that the trial court erred when it valued
the promissory notes at their face value because “the notes’ value [was]
intrinsically tied” to the properties, which are now “worth substantially less
than the promissory debt.” We are not persuaded.

“[D]etermining the value of any given asset is left to the sound discretion
of the trial court.” In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 16
(2007). We will not disturb the trial court’s findings and rulings unless they
are unsupported by the evidence or erroneous as a matter of law. See In the
Matter of Nyhan and Nyhan, 147 N.H. 768, 770 (2002); see also Celestica, LLC
v. Communications Acquisitions Corp., 168 N.H. 276, 280 (2015).

The present value of a promissory note is “determined by its interest rate,
duration, credit-worthiness, security and other factors.” Whispering Springs
Tenant Assoc. v. Barrett, 137 N.H. 203, 208 (1993). A trial court may
reasonably consider the risk of nonpayment in determining value. See, e.g.,
Brosnan v. Brosnan, 817 P.2d 478, 480-81 (Alaska 1991) (finding trial court’s
decision to value promissory note at face value clearly erroneous in light of
evidence that there was, at best, “a 10% chance of recovering the loan”). Here,
the husband’s testimony—that he intends to pay the notes in full—provided the
trial court with a reasonable basis to conclude that the face value of the notes
accurately reflects their present value. The trial court’s finding is supported by
the evidence, and we therefore affirm its decision on this issue.

We note that the husband also argues that the trial court erred by failing
to include the “negative valuation” of the real-estate holding companies when
the court calculated the total value of the husband’s separate property.
However, because the husband did not present this question in his notice of
appeal, it is waived, and we decline to address it. See Lassonde v. Stanton, 157 N.H. 582, 587 (2008) (“Appellate questions not presented in a notice of
appeal are generally considered waived by this court.”).

III. Inclusion of Debts in the Separate Property of the Husband

The husband next asserts that the trial court erred by refusing to reduce
the total value of his separate property to account for alleged debts in the
amount of $55,950. At the final hearing, the husband testified to the existence
of these debts, which he claimed were associated with uncleared checks that
were drawn on his bank account. In the final decree, the trial court declined to
include the debts when it valued the husband’s separate property pursuant to
the prenuptial agreement. The court stated, without further explication, that
“[t]he evidence did not support using [the husband’s] negative entry of
$55,950.00.” The husband contends that the trial court erred when it rejected
his uncontested testimony, “[g]iven the absence of any finding by the [trial]
[c]ourt questioning [the husband’s] credibility.” We disagree.

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 “[W]e defer to the trial court’s judgment on such issues as resolving
conflicts in the 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 is free to accept or reject, in whole or
in part, the testimony of any party, and is not required to believe even
uncontested evidence. Id. at 466. If the court’s findings could reasonably have
been made on the evidence presented, they will stand. In the Matter of
Spenard & Spenard, 167 N.H. 1, 3 (2014).

We find no reversible error in the trial court’s decision to reject the
husband’s claimed debts. The trial court was in the best position to assess the
husband’s credibility and “weigh the evidence before it.” In the Matter of
Peirano & Larsen, 155 N.H. 738, 752 (2007). The court appears to have found
the husband’s testimony not credible or persuasive. Having reviewed the
record, we conclude that the trial court’s finding could reasonably have been
made based upon the evidence presented.

IV. Division of Federal Tax Refund

Finally, the husband contends that the trial court erred in two respects
with regard to its division of the parties’ joint 2010 federal tax refund in the
amount of approximately $84,000. As of the final hearing, the IRS had not yet
issued the refund. In the final decree, relying upon its interpretation of state
law, the trial court concluded that the refund was jointly titled property and
must be “divided equally” pursuant to the terms of the prenuptial agreement.
After dividing the tax refund equally, however, the trial court went one step
further: it proceeded to classify the husband’s share of the refund as his
separate property, and awarded the wife 11% of the husband’s share.

The husband first argues that the trial court erred by classifying the
refund as jointly titled property. He contends that, under federal law, a refund
“belongs to the party whose funds paid the tax”—in this case, the husband. He
also asserts that, if the IRS had issued the 2010 tax refund, the IRS would
have deposited the refund “into one of [the husband’s] individually titled
separate accounts.” Consequently, he argues, the full amount of the refund
should have been classified as his separate property, because the refunded
money would have been “held in [his] name” in one of his separate accounts.
We are not persuaded.

Contrary to the husband’s argument, federal law does not govern the
issue. Rather, “the existence of any property rights in a tax refund resulting
from the filing of a [joint federal tax return] is determined under state law.” In
re Estate of Trecker, 215 N.W.2d 450, 450 (Wis. 1974); see also In re Wetteroff,
453 F.2d 544, 547 (8th Cir. 1972) (“Congress most definitely did not intend [the
law permitting joint returns] to affect or change the ownership of property

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rights between taxpayers.”). Thus, the trial court did not err in declining to rely
upon federal law to determine each party’s interest in the refund.

Further, to the extent that the husband is arguing that, as matter of
state law, the tax refund is not titled jointly because the refund would have
been deposited into one of his separate bank accounts, he has failed to provide
a record demonstrating that he made this argument in the trial court.
Therefore, we decline to review it. See Bean v. Red Oak Prop. Mgmt., 151 N.H.
248, 250 (2004) (stating that, generally, a party may not have judicial review of
a matter where the party fails to provide a sufficient record demonstrating that
it was raised in the trial court). Because, in his brief, the husband has
developed no other argument challenging the trial court’s conclusion that the
refund is titled jointly under state law, we affirm the trial court’s decision to
divide the refund equally.

The husband next argues that even if equal division was proper, the trial
court erred when it classified the husband’s share of the refund as separate
property, and then awarded 11% of his share to the wife. We agree.

As noted above, the parties’ prenuptial agreement governs the division of
their property in the event that they divorce. “Ordinary principles of contract
law govern prenuptial agreements.” In the Matter of Nizhnikov & Nizhnikov,
168 N.H. 525, 531 (2016). We review the trial court’s interpretation of the
prenuptial agreement de novo. See Czumak, 155 N.H. at 373. We give the
language used by the parties its reasonable meaning, considering the
circumstances and the context in which the agreement was negotiated, and
reading the document as a whole. Id.

We conclude that, under the prenuptial agreement, the husband’s share
of the tax refund may not be further divided as his separate property. The trial
court concluded that the tax refund was titled jointly, which we interpret to
mean that the court found that the parties held the tax refund as joint tenants
with rights of survivorship. See In the Matter of Salesky & Salesky, 157 N.H.
698, 702 (2008) (stating that the interpretation of a court order presents a
question of law, which we review de novo). As the trial court determined, the
prenuptial agreement clearly establishes that property held by the parties as
joint tenants with rights of survivorship must be “divided equally” upon
divorce. However, there is no provision that states that each party’s share is
then to be divided as separate property. Rather, the prenuptial agreement
appears to create two separate methods by which the parties’ property is to be
divided: the length-of-marriage formula for separate property, and equal
division for property held by the parties as joint tenants with rights of
survivorship.

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 This interpretation is consistent with how the prenuptial agreement
treats the division of the parties’ homestead—another asset that the parties
held as joint tenants with rights of survivorship. The prenuptial agreement
provides that the husband’s separate property “by definition does not include”
the husband’s interest in the parties’ homestead. The use of the phrase “by
definition” suggests that the reason the husband’s separate property does not
include his interest in the homestead is because his separate property is not
defined to encompass his interest in an asset held by the parties as joint
tenants. By extension, the husband’s interest in other jointly titled property—
in this case, the tax refund—does not fall within the definition of separate
property, and is not to be divided under the formula applicable to separate
property.

Therefore, once the tax refund was equally divided, the trial court erred
by further dividing the husband’s portion of the refund as separate property.
Accordingly, we reverse the trial court’s decision to award the wife an
additional 11% of the husband’s 50% share of the tax refund.

V. The Wife’s Claims on Appeal

The wife raises several claims of error on appeal: (1) she argues that the
trial court erred by making her responsible for the provision of the children’s
health insurance; (2) she argues that the trial court erroneously admitted into
evidence her privileged therapy records, see RSA 330-A:32 (2011); and (3) she
requests that we remand the case so that the trial court can increase her
award under the prenuptial agreement from 11% to 12% of the husband’s
separate property, in light of the fact that the marriage has continued for
another year as a result of the present appeal. We examine these arguments in
turn.

In her brief, the wife asserts a number of reasons why the husband
should be paying for the children’s health insurance. She then argues that,
because the trial court failed to explain its reasoning for requiring her to pay
for health insurance, we must remand the case for further consideration of the
issue. We conclude that her argument that the trial court erred by failing to
explain its reasoning is not preserved for our review because she failed to
present it to the trial court. Although the wife did claim in her motion for
reconsideration that the trial court erred by ordering her to pay for the
children’s health insurance, she did not request an explanation for the court’s
decision or assert that the court erred in failing to provide one. Therefore, we
decline to address that argument. See In the Matter of Hampers & Hampers,
154 N.H. 275, 287 (2006) (“[P]arties may not have judicial review of matters not
raised in the forum of trial.”).

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 To the extent that the wife is also arguing that we should reverse the
decision of the trial court requiring her to provide health insurance, we
disagree. We afford broad discretion to the trial court in divorce matters, and
we will not disturb the trial court’s rulings regarding child support absent an
unsustainable exercise of discretion or an error of law. In the Matter of
Johnson & Johnson, 158 N.H. 555, 558 (2009). The party challenging the
court’s order has the burden of showing that the order was “improper and
unfair.” Id. “Further, in the absence of specific findings, a court is presumed
to have made all findings necessary to support its decree.” In the Matter of
Costa & Costa, 156 N.H. 323, 331 (2007) (quotations omitted). Here, having
reviewed the record, in conjunction with the trial court’s other, uncontested
rulings on child support, we cannot conclude that the trial court unsustainably
exercised its discretion in requiring the wife to provide health insurance for the
children.

We decline to reach the merits of the wife’s remaining arguments on
appeal. First, the wife has failed to challenge one of the trial court’s alternative
grounds for admitting her privileged therapy records. The trial court concluded
that disclosure of the records was warranted both because the wife had waived
the privilege, and because the privilege should be pierced. See Desclos v. S.
N.H. Med. Ctr., 153 N.H. 607, 611 (2006) (listing circumstances in which trial
court may compel disclosure of privileged materials). However, in her brief, the
wife challenges only the court’s conclusion that she waived the privilege. Even
considering the passing reference she makes to the doctrine of piercing the
privilege in her reply brief, we conclude that she has not sufficiently developed
for our review an argument on piercing the privilege. See State v. Reinholz, 169 N.H. 22, 31 (2016). Because the trial court’s unchallenged ruling
regarding piercing the privilege provides a sufficient alternative basis for its
decision to compel disclosure of the records, we affirm the trial court’s decision.
See Koor Communication v. City of Lebanon, 148 N.H. 618, 624 (2002).

Second, by failing to present it in her notice of appeal, the wife has
waived her argument that, because the parties’ marriage has continued for an
additional year during this appeal, her award should be increased to 12% of
the separate property of the husband. See Lassonde, 157 N.H. at 587. We do
not agree with the wife that this argument is encompassed by the following
question in her notice of appeal: “Is the court’s property award under the
parties’ prenuptial agreement in error where the court miscalculated the value
of assets?” See Sup. Ct. R. 16(3)(b). That question identifies a single claim of
error regarding the property award—that the trial court erred in valuing
assets—whereas the premise of the wife’s argument on appeal is that, because
of the passage of time during this appeal, she is entitled to a greater percentage
of the husband’s separate property under the prenuptial agreement. Therefore,
her argument is waived, and we decline to review it. See Lassonde, 157 N.H. at
588.

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 Finally, the remaining issues the wife raised in her notice of appeal, but
did not brief, are deemed waived. See In the Matter of Kempton & Kempton,
167 N.H. 785, 804 (2015).

Affirmed in part; and
reversed in part.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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