In re Estate of Scott Brewster

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0444, In re Estate of Scott Brewster, the
court on May 16, 2017, 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, Rachel Cuneo, appeals an order of the Circuit Court
(Quigley, J.), in favor of the respondent, Zachary Brewster (son), the son of the
decedent, Scott Brewster, denying her petition to be recognized as the decedent’s
spouse pursuant to RSA 457:39 (2004). She contends that the trial court erred
by: (1) not finding that she and the decedent “acknowledged each other as
husband and wife” and “were generally reputed to be such”; (2) admitting
documents regarding the decedent’s life insurance and testimony regarding his
obituary; and (3) neither ruling on her requests for findings of fact and rulings of
law, nor making its own “numbered” findings, nor citing our prior opinions in its
order.

New Hampshire does not recognize common-law marriages except to the
limited extent provided by RSA 457:39. In re Estate of Bourassa, 157 N.H. 356,
357 (2008). To establish status as a spouse under RSA 457:39, the survivor
must demonstrate that, for the three years preceding the other party’s death,
they: (1) cohabited; (2) acknowledged each other as husband and wife; and (3)
were generally reputed in their community to be husband and wife. Bourassa,
157 N.H. at 357. The evaluation of inconsistent conduct on the part of the
decedent is a question of fact to be decided by the trial court. Delisle v. Smalley, 96 N.H. 58, 59 (1949).

“The findings of fact of the [trial court] are final unless they are so plainly
erroneous that such findings could not be reasonably made.” RSA 567-A:4
(2007). Thus, we review the record to determine if the trial court’s findings could
be reasonably made, recognizing that it is in the best position to resolve conflicts
in the testimony, measure the credibility of witnesses, and determine the weight
to be given evidence. Bourassa, 157 N.H. at 358; see Cook v. Sullivan, 149 N.H.
774, 780 (2003). Furthermore, the trial court is not compelled to believe even
uncontested evidence. Bourassa, 157 N.H. at 358. We review the application of
law to fact de novo. Blagbrough Family Realty Trust v. A & T Forest Prods., 155
N.H. 29, 33 (2007).

We first address whether the trial court erred by finding that the petitioner
and the decedent did not acknowledge each other as husband and wife.
Acknowledgment of another as one’s spouse under RSA 457:39 involves
declaration or avowal of the relationship. Bourassa, 157 N.H. at 358. In rare
cases, the parties’ conduct can conceivably rise to the level of an avowal of the
existence of a legal relationship. Id. at 359.

In this case, people close to the decedent — his brother, with whom he
spoke bi-weekly, his son’s mother, with whom he spoke weekly, and his son, with
whom he “talked about . . . everything” — testified that the decedent did not
indicate that the petitioner was his wife, that he intended to marry her, or that
she was his son’s step-mother. The decedent’s sister-in-law testified that,
approximately a month before his death, she heard the decedent introduce the
petitioner as his “girlfriend.” The mother of the decedent’s son testified that,
when she and the decedent contemplated marriage, he bought her a ring and
announced their plan to marry, none of which he did with the petitioner.

The trial court found that the decedent “would likely have shared happy
news” with his family and the mother of his son, such as a declaration of his
relationship with the petitioner. Although the petitioner characterizes this
finding as being “based entirely upon conjecture,” it was a reasonable inference
from the decedent’s previous announcement of his intent to marry his son’s
mother. The petitioner argues that the decedent’s failure to acknowledge her as
his wife to his family shows that she “was not made to feel welcome by [his]
family.” However, the petitioner testified that she saw the decedent’s family on
holidays and “had [a] very nice, happy relationship” with them.

The petitioner testified that she and the decedent did not have a joint bank
account or cell phone plan, and that her name on her driver’s license did not
include his surname. She also testified that they did not have a joint credit card
account because the decedent “didn’t use credit cards.” However, the record
reflects a significant claim against the decedent’s estate by a credit card
company. Thus, the trial court could have reasonably inferred that the decedent
did not fully apprise the petitioner of his finances.

The petitioner points to testimony by several witnesses that the decedent,
when making plans, frequently said, “I’ll have to ask the wife,” or something
similar. However, the decedent’s long-time friend testified that the decedent
employed this turn of phrase prior to having cohabited with the petitioner for
seven years, which, the petitioner testified, was when he thought she had become
his common-law spouse. Thus, the trial court could have reasonably inferred
that the decedent used this as a colloquial phrase, rather than a declaration of
his relationship.

The petitioner points to a letter that she and the decedent wrote to a utility
provider, which she signed using the decedent’s surname, regarding an account
in the decedent’s name. She argues that the decedent was aware that she used
his name because he also signed the letter. However, the trial court could have
reasonably determined that the decedent acquiesced to her use of his surname
on the letter for reasons other than acknowledging her as his wife.

2
 The petitioner argues that utility bills identified her by the decedent’s
surname. However, the trial court noted reasonably that utilities put whatever
names they are told on bills; as the court stated, utility companies “don’t know
the relationship between the people.”

The petitioner argues that, after the trial court denied the son’s motion for
a directed verdict at the close of her case, evidence of the decedent’s “claimed
omissions” or failure to acknowledge her as his wife was “not enough to rebut
[her] case.” Cf. Renovest Co. v. Hodges Development Corp., 135 N.H. 72, 76
(1991) (allowing trial court to render judgment for defendant upon motion to
dismiss at close of plaintiff’s case). She implies that evidence was required that
she or the decedent “specifically disavowed a marital relationship.” However,
even if the son had presented no evidence, the mere fact that the trial court
denied the motion would not have compelled a ruling in her favor. See id. at 75-
78 (discussing standards applicable to motions to dismiss in a bench trial).
Although in Bourassa the parties affirmatively disavowed their marital status,
such a disavowal is not required for a trial court to find no marital status under
RSA 457:39. See Bourassa, 157 N.H. at 359. In Delisle, where the decedent
specifically disavowed a marital relationship in her will, we held that even an
outright disavowal “must be weighed against other evidence of acknowledgment
of the relation.” Delisle, 96 N.H. at 60.

The petitioner argues that the trial court “did not take into account [her]
evidence.” However, the trial court reviewed her evidence at length. She
contends that the trial court did not find “that [she] or any of her witnesses were
not credible.” However, the trial court stated that its findings were based, in
part, upon “the credibility and demeanor of the witnesses.” See Nordic Inn
Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586 (2004) (stating that we
assume trial court made all subsidiary findings necessary to support its general
finding). To the extent that the petitioner argues that her evidence regarding the
decedent’s statements was more persuasive than the son’s evidence of the
decedent’s failure to acknowledge a marital relationship, we defer to the trial
court’s determination of the weight given to evidence. See Bourassa, 157 N.H. at
358; Delisle, 96 N.H. at 59.

The petitioner contends that the trial court “inappropriately” considered
whether the decedent treated her “in a manner that a spouse would consider and
care for another at the time of death” because “[a]ny apparent failure to provide
for a common-law spouse is not a factor under RSA 457:39.” The trial court
found that the decedent did not make the petitioner the beneficiary of his life
insurance policy or his 401(k) account, which it concluded “would appropriately
have gone to a spouse, if one existed.”

The petitioner argues that this finding “ignores the clear remedial intent of
RSA 457:39: to provide a common-law status and right to inheritance for those
lacking a formal ceremony.” However, nothing in RSA 457:39 precludes the
consideration of inheritance provisions, among other evidence, when determining
3
whether a decedent acknowledged a marital relationship. See Delisle, 96 N.H. at
60 (stating that testamentary disavowal of common-law marriage must be
weighed against other evidence of acknowledgment). Furthermore, even without
evidence of the decedent’s failure to provide for the petitioner, on this record, the
trial court could have reasonably concluded that the decedent did not
acknowledge the petitioner as his wife. See Welch v. Gonic Realty Trust Co., 128
N.H. 532, 536 (1986) (stating error harmless when it was not prejudicial to the
substantial rights of the party assigning it).

The petitioner argues that the decedent may have failed to provide for her
upon his death because he wished to provide for his son. However, we cannot
conclude that the trial court’s inference was unreasonable. See Bourassa, 157
N.H. at 358. To the extent that the petitioner argues that the trial court
improperly considered the son’s interests in determining her status, we note that
the court stated that it was “limited to the statute,” pursuant to which the son’s
interests were not relevant to the petitioner’s status.

To the extent that the petitioner argues that the trial court required her to
show that the decedent acknowledged her as his spouse for longer than the
statutorily required three years, we do not read the trial court’s order as resting
upon the length of time the decedent allegedly acknowledged her as his spouse,
but upon his lack of declaration or avowal.

Accordingly, upon this record, we conclude that the trial court could have
reasonably found that the petitioner and the decedent did not acknowledge each
other as husband and wife. See Bourassa, 157 N.H. at 358. Having reached this
conclusion, we need not address the court’s further finding that they were not
generally reputed to be married. See id. at 360.

We next address the petitioner’s evidentiary issues. We note that the
petitioner acknowledges that these issues concern evidence upon which the trial
court did not specifically rely.

We review a trial court’s decisions on the admissibility of evidence under
an unsustainable exercise of discretion standard. Petition of Stompor, 165 N.H.
735, 738 (2013). To meet this standard, the petitioner must demonstrate that
the trial court’s ruling was clearly untenable or unreasonable to the prejudice of
her case. Id.

To the extent that the petitioner argues that the son’s mother could not
testify that she received a payment from the decedent’s life insurance, she does
not explain why the trial court erred when it allowed the mother to “testify to
what she knows.” To the extent that the petitioner argues that the trial court
erred in admitting the transmittal letter and check stub from the life insurance
payout, she does not explain how she was prejudiced by the admission of these
documents. As the trial court noted, they were “duplicative of the testimony
given.” Similarly, to the extent that she argues that testimony regarding the
4
amount of the policy was unclear, she does not explain how that prejudiced her
case. See id.

The petitioner argues that the trial court improperly admitted hearsay
when it allowed the decedent’s mother to testify about his published obituary.
The mother testified that the petitioner had approved the obituary and that it
identified her as the decedent’s “soul mate.” The petitioner contends that this
testimony was not admissible pursuant to New Hampshire Rule of Evidence
803(19) as reputation in the community concerning a person’s marriage because
it lacked the requisite indicia of trustworthiness.

However, the petitioner also argues that “[t]he terms ‘soul mate’ and
‘husband’ [sic] are analogous and are not mutually exclusive” and that the “use
of the term ‘soul mate’ could only support” her status as the decedent’s spouse.
For the purposes of this case, we agree and, therefore, cannot conclude that the
petitioner’s case was prejudiced by the admission of this testimony. See
Stompor, 165 N.H. at 738.

Finally, we turn to the petitioner’s complaints about the trial court’s order.
In this case, the trial court issued a six-page narrative order, in which it reviewed
both parties’ evidence in detail. The petitioner argues that the order is
“statutorily deficient” because RSA 567-A:4 requires the trial court to “report the
material facts” and the order “did not even use the terms ‘material facts’ or
‘facts.’” She further argues that the trial court “did not allow or deny [her]
numbered proposed findings of fact” and “did not make any specific numbered
findings of fact and rulings of law of its own.” However, the trial court is not
required to respond specifically to the parties’ proposed findings and rulings. See
Drucker’s Case, 133 N.H. 326, 332 (1990) (addressing superior court orders). An
order sufficiently responds to requested findings when it states the essential facts
sufficient to support the decision in narrative form. See id.

To the extent that the petitioner argues that the order did not adequately
explain the grounds for its decision, we disagree. To the extent that the
petitioner argues that the order is “defective” because it does not cite our prior
opinions, the trial court was not required to cite any specific cases.

The remaining issues raised by the petitioner are either not sufficiently
developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not
warrant further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

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

Eileen Fox,
Clerk

5