In the Matter of Gwenn Ferdinando and Bryan Ferdinando

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0666, In the Matter of Gwenn Ferdinando
and Bryan Ferdinando, the court on August 24, 2016, 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.

The respondent, Bryan Ferdinando (husband), appeals the final decree of
the Circuit Court (Foley, J.) in his divorce from the petitioner, Gwenn
Ferdinando. He argues that the trial court erred in: (1) finding that he has the
ability to pay alimony in the amount awarded; (2) determining the amount and
duration of alimony; and (3) failing to fully credit him for payments made under
the temporary decree.

We first address the husband’s argument that the court erred in finding
that he has the ability to pay alimony in the amount awarded. The trial court
is afforded broad discretion in awarding alimony. In the Matter of Nassar &
Nassar, 156 N.H. 769, 772 (2008). We will not overturn the trial court’s
decision absent an unsustainable exercise of discretion. Id. We will uphold its
factual findings unless they are lacking in evidentiary support or tainted by
error of law. Id.

Upon motion of either party, the trial court may award alimony, either
temporary or permanent, for a definite or indefinite period of time, if it finds that:

(a) [t]he party in need lacks sufficient income, property, or both . . .
to provide for such party’s reasonable needs, taking into account
the style of living to which the parties have become accustomed
during the marriage; and (b) [t]he party from whom alimony is
sought is able to meet reasonable needs while meeting those of the
party seeking alimony, taking into account the style of living to
which the parties have become accustomed during the marriage;
and (c) [t]he party in need is unable to be self-supporting through
appropriate employment at a standard of living that meets
reasonable needs . . . .

RSA 458:19, I (Supp. 2015).

In this case, the trial court found that the wife lacks sufficient income to
provide for her reasonable needs, that the husband has the ability to pay the
alimony she needs while meeting his own reasonable needs, and that the wife
is unable to be self-supporting through suitable employment. The record
supports these findings. In her financial affidavit submitted at the final
hearing, the wife listed income of $3,514 per month and expenses of $7,959
per month. The trial court found that the wife will be able to reduce her
housing expenses when she refinances the mortgage, and that many of her
expenses are overstated, but that she has at least $6,000 in reasonable
expenses per month. Thus, the court found, she demonstrated a need for
alimony in the amount she requested, $2,200 per month.

In the husband’s financial affidavit, he listed income of $5,618 per
month and expenses of $3,359 per month, or $2,259 less than his monthly
income. Thus, the court found, the husband has the ability to pay alimony in
the amount the wife requested while meeting his own reasonable needs. The
court also found that the husband receives fringe benefits from his employer
including: health insurance at no cost to him; a $2,000 per year contribution
to his health savings account; the use of a 1996 Ford Explorer, with gasoline
and maintenance at no cost to him; contributions to his IRA; and the use of a
cell phone. The trial court properly considered these benefits in determining
the husband’s ability to pay alimony. See Thayer v. Thayer, 119 N.H. 871, 873
(1979), superseded by statute on other grounds as stated by In the Matter of
Clark & Clark, 154 N.H. 420, 425 (2006). We conclude that the record
supports the trial court’s finding that the husband has the ability to pay the
amount of alimony awarded. See Nassar, 156 N.H. at 772.

The husband next argues that the court erred in determining the amount
and duration of alimony to be awarded. “Our role is not to review the alimony
award de novo, but to determine only whether there is an objective basis
sufficient to sustain the discretionary judgment made.” In the Matter of
Kempton & Kempton, 167 N.H. 785, 803-04 (2015) (quotation omitted). In
determining the amount of alimony to be awarded, the court may consider the
value of economic and non-economic contributions to the family unit, RSA
458:19, IV(d) (Supp. 2015), and:

shall consider the length of the marriage; the age, health, social or
economic status, occupation, amount and sources of income, the
property awarded . . . , 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) (Supp. 2015).

The parties were married for twenty-five years. At the time of the decree,
both parties were fifty-two years old. The wife, who has a bachelor of science
degree in accounting, testified that she sacrificed her career to raise the parties’
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three children, and that she has been unable to obtain employment in her field.
The court noted that the wife’s income as a data specialist has risen
“considerably” from the time of the 2013 hearing, but that it appeared that her
earning capacity “has reached a plateau.” The court awarded the wife alimony
of $2,200 per month for ten years based upon “the duration of the marriage,
the parties’ ages, [the husband’s] physically difficult job, [the husband’s]
greater earnings and the probability that he and his siblings will acquire
significant additional assets in the future, and given the probability that [the
wife] will have a very difficult time just holding onto the assets she is being
awarded herein.”

The trial court suggested, however, that if the wife obtains employment
in the accounting field and thereby increases her income, it might constitute a
substantial change in circumstances justifying a review of the alimony award.
See In the Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010) (requiring
substantial change in circumstances to modify alimony award). Based upon
this record, we cannot conclude that the court erred in determining the
amount and duration of the alimony award. See Kempton, 167 N.H. at 803-04.

The husband raises three issues on appeal that are not preserved for
review. First, he argues that the court erred to the extent that it considered
future monetary gifts from his parents in determining alimony. He also argues
that the court’s alimony award is inconsistent with his requested finding of fact
No. 24, which the court granted, and which states that the wife is capable of
supporting herself. Finally, he argues that the court failed to fully credit him
for payments made under the temporary decree. The trial court must have had
the opportunity to consider any issues asserted by the appellant on appeal;
thus, to satisfy this preservation requirement, any issues which could not have
been presented to the trial court prior to its decision must be presented to it in
a motion for reconsideration. See Fam. Div. R. 1.26(F); N.H. Dep’t of
Corrections v. Butland, 147 N.H. 676, 679 (2002); State v. Porter, 144 N.H. 96,
100-01 (1999) (Rules of preservation are not relaxed for a self-represented
party.). Because the record fails to show that the husband raised these issues
with the trial court, they are not preserved for review.

We have considered the husband’s remaining arguments, and have
concluded that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

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

Eileen Fox,
Clerk

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