In the Matter of Cindy DePalo and Joseph DePalo

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0088, In the Matter of Cindy DePalo and
Joseph DePalo, the court on February 19, 2020, 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, Joseph DePalo (husband), appeals the order of the
Circuit Court (Yazinski, J.) denying his motion to modify alimony and set aside
the divorce decree, as well as his request for an order requiring the petitioner,
Cindy (DePalo) Collins (wife) to sign a loan modification agreement. He argues
that the trial court erred in ruling that his requests were barred by the doctrine
of res judicata.

Res judicata has been established “to avoid repetitive litigation so that
at some point litigation over a particular controversy must come to an end.”
Cook v. Sullivan, 149 N.H. 774, 777 (2003) (quotation omitted). “Res judicata
precludes the litigation in a later case of matters actually decided, and matters
that could have been litigated, in an earlier action between the same parties for
the same cause of action.” Sleeper v. Hoban Family P’ship, 157 N.H. 530, 533
(2008).

The record shows that, in 2009, the parties agreed to the terms of their
divorce in permanent stipulations approved by the court. In the years that
followed, the husband, usually self-represented, filed numerous motions to
modify alimony and set aside the divorce decree, resulting in at least four court
orders denying his requests. On May 11, 2018, the husband again moved to
modify alimony and set aside the property settlement. He later moved for an
order requiring the wife to sign a loan modification agreement. The wife
objected to the husband’s motions, arguing that his pleadings “raise no new
fact or argument,” that “[a]ll matters have been ruled on multiple times since
the final decree,” and that res judicata applies to “essentially all issues raised
by [the husband] in his newest pleadings.” Following a hearing, during which
both parties were represented by counsel, the trial court found that “[s]ince the
Final Decree was approved by this Court [the husband] has repeatedly
returned to Court seeking to change the Final Decree or to vacate it.” The
court “found him to dishonestly represent his financial status in the past and
believes he continues to do so.” The court agreed with the wife that
res judicata applied and denied the husband’s requests.
 A party seeking to modify an alimony order must show that a substantial
change in circumstances has occurred rendering the alimony award either
improper or unfair. In the Matter of Doherty & Doherty, 168 N.H. 694, 701
(2016). One reason for requiring proof of changed circumstances is to prevent
re-litigation of issues based on the same evidence. Lafond v. Lafond, 119 N.H.
512, 513-14 (1979). A property settlement in a divorce decree is not subject to
modification on account of changed circumstances. In the Matter of
Birmingham & Birmingham, 154 N.H. 51, 57 (2006). A party seeking to set
aside a property settlement in a divorce decree must show that “the
distribution is invalid due to fraud, undue influence, deceit, misrepresentation,
or mutual mistake.” Id. (quotation omitted).

We construe the trial court’s order to mean that the husband failed to
show that there had been a substantial change in circumstances to warrant
modifying alimony and that there were no new facts to show that the property
distribution was invalid for any of the foregoing reasons. See In the Matter of
Salesky & Salesky, 157 N.H. 698, 702 (2008) (interpretation of trial court order
presents a question of law for this court). We will affirm the trial court’s
findings unless they are unsupported by the evidence or legally erroneous. In
the Matter of Nyhan and Nyhan, 147 N.H. 768, 770 (2002). We conclude that
the record supports the trial court’s implicit findings. See id.

The husband argues that res judicata cannot apply to his request to
divide the parties’ business because the business was not divided in the final
decree. The record shows, however, that the final decree contained provisions
for the distribution of the parties’ entire marital estate, including the business.
The record supports the trial court’s implicit finding that the husband failed to
show that the distribution is invalid. See Birmingham, 154 N.H. at 57.

The husband also argues that res judicata cannot apply to his request to
order the wife to sign a loan modification agreement because he has not
previously requested such relief. However, the final decree contained
provisions for the disposition of the marital home. The husband was ordered
to refinance the property within one year and to remove the wife from liability
on the mortgage. If he was unable to refinance the property within one year,
he was ordered to place it on the market. Contrary to the court’s orders, the
husband had neither refinanced nor sold the property by the time of the
hearing, nine years after the decree became final. Consequently, the wife
remained liable on the mortgage. Nothing in the decree requires the wife to
agree to a loan modification to assist the husband in obtaining more favorable
repayment terms and, as previously noted, the husband has failed to show
grounds to set aside or modify the property settlement. Accordingly, we find no
error. See Nyhan, 147 N.H. at 770.

The record supports the court’s finding that the husband’s request to
modify alimony is based upon essentially the same facts supporting his prior

2
requests, which the court had previously denied. Accordingly, res judicata
applies. See Sleeper, 157 N.H. at 533.

Finally, the husband argues that the trial court made insufficient
findings to support its decision. The record shows, however, that the husband
did not request specific findings. In the absence of such a request, the trial
court is generally not required to make specific findings. See Magrauth v.
Magrauth, 136 N.H. 757, 760 (1993). We conclude that the court’s findings are
sufficient for our review. See Geiss v. Bourassa, 140 N.H. 629, 632-33 (1996).

The husband’s arguments that he was denied his constitutional rights to
a remedy, equal protection, and due process, are insufficiently developed and
warrant no further consideration. See Appeal of Omega Entm’t, 156 N.H. 282,
287 (2007) (off-hand invocations of constitutional rights without support by
legal argument or authority warrant no extended consideration).

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

3