In the Matter of George Provencal and Laurie Provencal

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0750, In the Matter of George Provencal
and Laurie Provencal, the court on November 23, 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 petitioner, George Provencal (husband), appeals the final decree of
the Circuit Court (Cross, R., approved by Lawrence, J.) in his divorce from the
respondent, Laurie Provencal, challenging the amount and duration of the
alimony award. Specifically, he argues that the trial court: (1) erroneously
reduced his claimed monthly expenses to support a finding that he has the
ability to pay alimony; (2) failed to consider certain statutory factors in
determining the amount of alimony to award; and (3) unsustainably exercised
its discretion by ordering him to pay alimony at least until he reaches age
sixty-seven. He also argues that the court unsustainably exercised its
discretion by failing to provide that alimony will terminate if the wife cohabits
with another person.

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. “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). We will uphold its factual findings unless they are lacking
in evidentiary support or tainted by error of law. Nassar, 156 N.H. at 772.

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. The wife was injured at work more than fifteen years
ago and is permanently disabled. She receives social security disability income
of $1,320 per month. Her anticipated monthly expenses of $2,806, which the
court found to be reasonable, exceed her income by $1,486 each month.

For purposes of its alimony award, the court accepted the husband’s
evidence that his income would decrease to $4,586 per month shortly after the
final hearing. In his financial affidavit, the husband listed expenses of $5,638
per month. The court adjusted his expenses down to $3,561 per month, and
ordered him to pay the difference of $1,025 per month in alimony until he
reaches the age of sixty-seven, retires, or begins receiving social security
benefits, whichever occurs last.

We first address the husband’s argument that the trial court erred in
reducing his discretionary expenses to approximate the wife’s expenses, “in
order to provide them with standards of living that are approximately equal and
equivalent to the lifestyle they had during the marriage.” He argues that
“neither case law nor the alimony statute compels the mathematical precision
that the trial court applied.” The statute requires the trial court to consider
“the style of living to which the parties have become accustomed during the
marriage.” RSA 458:19, I. Although RSA 458:19, I, does not require the trial
court to equalize the parties’ discretionary expenses, we cannot conclude, upon
this record, that the trial court’s decision to do so constituted an unsustainable
exercise of discretion. See Kempton, 167 N.H. at 803-04.

The husband argues that the trial court effectively ordered him to pay
“all of his disposable income in alimony.” We disagree. The court reduced, but
did not eliminate, the expenses listed in section six of his financial affidavit,
allowing $942 per month, an amount equal to the wife’s section-six expenses,
for eating out, gifts and charitable donations, vacations, entertainment, and
recreation.

The husband also argues that the trial court erred by eliminating his
$295 monthly retirement contribution. We do not construe the trial court’s
order to rule, as the husband argues, that “if one party in a divorce does not
have a retirement plan,” then neither party may invest in retirement. Rather,
we construe it to find that the husband does not need to contribute $295 per

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month to retirement to meet his “reasonable needs.” See RSA 458:19, I; see
also In the Matter of Salesky & Salesky, 157 N.H. 698, 703 (2008) (We construe
the trial court’s order with reference to the issues it was meant to decide.).
Based upon this record, we cannot conclude that the trial court’s finding is
unsupported by the record. See Nassar, 156 N.H. at 772.

The husband argues that the trial court left him “without any financial
buffer” in the event of any adverse financial circumstances. We disagree. As
previously noted, the trial court did not reduce the husband’s expenses to a
bare minimum. Moreover, nothing in the record shows that wife has any
greater “financial buffer” than the husband. On the contrary, as the court
noted, even with the alimony award, she “will still have a monthly shortfall of
$361.” Based upon this record, we cannot conclude that the trial court
unsustainably exercised its discretion in adjusting the husband’s expenses.
See Kempton, 167 N.H. at 803-04.

We next address the husband’s argument that the court failed to
consider factors enumerated in RSA 458:19, IV(b) (Supp. 2015). In
determining the amount of alimony to award, 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 . . . and the federal tax consequences of the order.

RSA 458:19, IV(b) (Supp. 2015).

In its order, the trial court found that: (1) the marriage was long term;
(2) the wife is disabled and cannot work; (3) the wife is older than the husband,
and her health is considerably worse; (4) the husband “has no permanent
disabilities and expects to work until he is 67 years old”; (5) the wife’s income
is “extraordinarily low”; (6) the husband earns nearly three times more than the
wife; (7) the husband has historically earned far greater income than the wife;
and (8) the husband is able “to increase his income with overtime and shift
differential, when they are available.” These findings address the RSA 458:19,
IV(b) factors. Although the court relied upon these findings as factors that
would support an award of lifetime alimony, we assume that it also considered
them in determining the amount of alimony. See Salesky, 157 N.H. at 703.

The husband argues that the court failed to consider other factors,
including that, at age fifty-five, he is “in the twilight of his earning years,” that
his health will naturally decline, that his income is not necessarily secure, and

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that if he should lose his job, his prospects for employment may be limited.
The fact that the trial court did not discuss these facts in its order does not
imply that it did not consider them. In re Jonathan T., 148 N.H. 296, 304
(2002). Moreover, we note that such changes might justify modification of
alimony. See In the Matter of Doherty & Doherty, 168 N.H. 694, 701 (2016).

We next address the husband’s argument that the trial court erred in
ordering him to pay alimony at least until he reaches age sixty-seven. He
argues that the court’s order “leaves [him] with no choice but to work until the
age of 67, even if he would otherwise desire to retire sooner.” The husband
testified that, although he would like to work “less,” he will “probably end up
working . . . until they throw me out,” noting that he will receive retirement
benefits when he reaches age sixty-seven, “so at least until then.” Although the
court found that “[a] lifetime award of alimony would be appropriate,” it
acknowledged that the husband no longer will be able to afford alimony once
he retires. Based upon this record, we cannot conclude that the court erred in
the duration the award. See Kempton, 167 N.H. at 803-04.

Finally, we address the husband’s argument that the court
unsustainably exercised its discretion by failing to provide that alimony will
terminate if the wife cohabits with another person to share living expenses but
does not remarry. Although, as the husband argues, “nothing in the alimony
statute . . . prevents the trial court from including such a provision in the final
decree,” neither does it require the court to include such a provision. Based
upon this record, we cannot conclude that the trial court unsustainably
exercised its discretion in rejecting the husband’s request to include such a
provision in its order. See Kempton, 167 N.H. at 803-04.

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, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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