In the Matter of Jennifer Faherty and Kevin Faherty

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0281, In the Matter of Jennifer Faherty
and Kevin Faherty, the court on January 31, 2020, issued the
following order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The respondent, Kevin Faherty (Husband), appeals the final decree
entered by the Circuit Court (Introcaso, J.) in his divorce from the petitioner,
Jennifer Faherty (Wife). We affirm.

The trial court has broad discretion in fashioning a divorce decree. In
the Matter of Crowe & Crowe, 148 N.H. 218, 221 (2002). We will not overturn
its decision absent an unsustainable exercise of discretion. Id. This standard
of review means that we review only whether there is an objective basis
sufficient to sustain the discretionary judgment made, and we will not disturb
the trial court’s determination if it could reasonably have been made. In the
Matter of Kempton & Kempton, 167 N.H. 785, 792 (2015). The trial court’s
discretion necessarily extends to matters such as assigning the weight to be
given evidence and measuring the credibility of witnesses. In the Matter of
Summers & Summers, 172 N.H. 474, 479 (2019). Conflicts in the testimony,
questions about the credibility of witnesses, and the weight assigned to
testimony are matters for the trial court to resolve. Id. The trial court’s factual
findings are binding upon this court if they are supported by the evidence and
are not legally erroneous. Id.

“Our standard of review is not whether we would rule differently than the
trial court, but whether a reasonable person could have reached the same
decision as the trial court based upon the same evidence.” Cook v. Sullivan, 149 N.H. 774, 780 (2003). We will not substitute our judgment for that of the
trial court. See Brent v. Paquette, 132 N.H. 415, 419 (1989). Nor will we
reweigh the equities. In the Matter of Heinrich & Heinrich, 164 N.H. 357, 365
(2012).

Husband first challenges the trial court’s property distribution. See RSA
458:16-a (2018) (amended 2019). In its narrative order, the trial court stated
that it had “made a considerable effort to divide the parties’ assets equitably,
understanding that [Husband] brought assets into the marriage which built a
foundation for the parties’ financial growth, while [Wife] has actively worked to
improve her earning capacity through education and a variety of work
experiences.” The court observed that the “bulk of the marital estate is in
investments,” which are “subject to fluctuations in value,” and, thus, that it
was “nearly impossible” to order an “‘equal’ division.” Nonetheless, the court
stated that it endeavored to award the parties “equitable shares of the marital
estate, as well as some considerable debt obligations.” Based upon the
“moderate length of the parties’ marriage,” the disparity in their earnings, and
other factors, the court determined that it was “fair and equitable to award
both parties an equal share of the marital assets, including those brought into
the marriage by [Husband].” However, with respect to the parties’ debts, the
court decided that because Husband “was always the majority income-earner
during the marriage and likely his earning capacity drove and supported the
parties’ lifestyle,” and because “he maintains a steady base income which
exceeds that of [Wife] by a considerable factor,” it was “reasonable to order that
he be liable for a larger share of the marital debts (excluding [Wife’s] student
loans).” Thereafter, the parties filed motions to reconsider and/or for
clarification, and, as a result, the trial court amended its decree to conform to
its narrative order.

“In a divorce proceeding, marital property is not to be divided by some
mechanical formula but in a manner deemed just based upon the evidence
presented and the equities of the case.” In the Matter of Geraghty & Geraghty,
169 N.H. 404, 417 (2016) (quotation omitted). Under RSA 458:16-a, II, “an
equal division of property is presumed equitable unless the trial court decides
otherwise after considering one or more of the factors designated in the
statute.” Id. (quotation omitted). The statute lists factors that the court may
consider, such as the length of marriage, ability of the parties to provide for
their own needs, the contribution of each party during the marriage, and the
value of property contributed by each party. See RSA 458:16-a, II.
Additionally, the court may consider any other factor it deems relevant. RSA
458:16-a, II(o). The court need not consider all of the enumerated factors or
give them equal weight. Geraghty, 169 N.H. at 417.

Husband argues that the trial court’s property division constitutes an
unsustainable exercise of discretion because the trial court stated that an
equal division was equitable, but then divided the estate unequally. He asserts
that “the total value of the marital estate, excluding the equity in the marital
home, was $434,001,” and, of this, he was awarded 44.7%, while Wife was
awarded 55.3%. With respect to the marital home, he asserts that the equity
in the home was $122,594, and although the parties were each awarded 50%
of the equity, he was required to use his share to pay down certain credit
cards. Thus, according to Husband, Wife was awarded 69% of the equity in the
marital home, while he was awarded only 31%.

Although Wife asserts that these arguments were not preserved for our
review, we disagree. Husband specifically argued in one of his post-decree
motions that the trial court awarded Wife “slightly more than 55% of the
marital assets, which is contrary to the court’s intention of a 50/50 division.”

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Husband argued in another post-decree motion that the trial court did not, in
fact, allocate 50% of the equity in the marital home to each party because it
ordered him to pay off certain credit cards.

As to the merits of Husband’s arguments, we do not share his
interpretation of the trial court’s order. See In the Matter of Salesky & Salesky,
157 N.H. 698, 702 (2008) (explaining that the meaning of a trial court order
raises an issue of law and that we interpret such orders de novo). The trial
court did not order an equal division of the marital estate. Rather, it
determined that it was equitable to equally divide the marital assets and to
unequally divide the marital debt.

Husband next asserts that an unequal division of the estate is
inequitable because: (1) even though the parenting plan awarded the parties
roughly equal parenting time, he has the children more than 50% of the time;
(2) he earned more income than Wife earned during the marriage; (3) the
parties were married for slightly fewer than ten years; (4) Wife is better
educated than Husband and “arguably” has a more stable job than he does;
and (5) although his base salary exceeds Wife’s salary, his earnings fluctuated
considerably between 2014 and 2017, and he does not expect to earn
“significant commissions (over $500/month) in the months following trial.”
Based upon our review of the record submitted on appeal, we conclude that the
trial court reasonably found that its property division was equitable. See
Kempton, 167 N.H. at 800.

Husband next contends that the trial court erred by ordering him to: (1)
refinance the mortgage on the marital home; (2) pay Wife one-half of the home’s
equity; and (3) pay some of her credit card debt “from his funds.” The trial
court found that the marital residence, valued at $350,000, had a mortgage
totaling $227,406.26, and that it was “fair and equitable that the marital home
net proceeds be divided 50% to [Wife] and 50% to [Husband].” Although
Husband contributed to the down payment for the home, the trial court found
that its upkeep and maintenance “was a joint marital effort that lasted nearly
10 years.” The trial court acknowledged that Husband wanted to retain the
home, and ordered that he could retain it, provided that he refinanced the
mortgage so as to remove Wife’s name from it and paid her “an amount equal
to 50% of the $350,000 value less the payoff of the mortgage loan.” If Husband
were unable to refinance the mortgage in this way, the court ordered that the
home be sold. The court further ordered Husband to use “any proceeds he
may realize [from the home’s sale] or any excess of refinancing funds he may
obtain” to pay off certain credit cards and to pay off the balance of the home
equity line of credit.

Husband argues that this portion of the decree “exceeded the [trial
court’s] authority” as we explained in In the Matter of Beal & Beal, 153 N.H.
349 (2006). In Beal, the trial court found that because the parties had debt

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equal to or exceeding $90,000, it was inequitable to award certain of their
Canadian property to either party. Beal, 153 N.H. at 349. Rather, the court
decided, a real estate commissioner should sell the property and pay off the
parties’ debts with the net sale proceeds, “mak[ing] his best effort to negotiate a
settlement with creditors with particular emphasis on obligations that have
been charged off and/or placed in collection.” Id. We held that RSA 458:16-a,
II did not authorize the trial court to order the sale of the Canadian property, a
marital asset, for the benefit of third-party creditors, observing that it was
“sound policy to adopt a rule which will not require creditors to intervene in
contested dissolution actions,” effectively “turn[ing] a dissolution action into a
creditor’s proceeding.” Id. at 351 (quotation omitted).

Husband argues that the trial court’s order in this case is akin to the
trial court order in Beal. Wife contends that Husband failed to preserve this
argument for our review, and we agree.

It is a long-standing rule that, generally, parties may not have judicial
review of matters that were not properly raised in the trial court. Thompson v.
D’Errico, 163 N.H. 20, 22 (2011). “The rationale behind the rule is that trial
forums should have an opportunity to rule on issues and to correct errors
before they are presented to the appellate court.” Mortgage Specialists v.
Davey, 153 N.H. 764, 786 (2006) (quotation and brackets omitted). It is the
burden of the appealing party, here Husband, to provide this court with a
record demonstrating that he specifically raised his appellate issues before the
trial court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). The
record submitted on appeal does not demonstrate that Husband ever argued in
the trial court that the court’s order was contrary to Beal. Because Husband
has failed to demonstrate that he raised this argument in the trial court, we
decline to address it.

Husband next contends that the trial court erred by not requiring Wife to
refinance her student debt. Under the decree, Wife was made “solely
responsible” for paying off the approximately $32,000 balance due on her
student loans, and the decree required that she “indemnify and hold [Husband]
harmless with respect to same.” Husband argues that, unless Wife refinances
this debt, it will remain on his credit rating and will impact his ability to obtain
future loans. He also contends that it is “patently unfair” to require that “he
use his share of the equity in the marital home to pay off wife’s debts, while not
holding the wife to the same standard.” Husband contends that the result he
seeks is required by Bonneville v. Bonneville, 142 N.H. 435, 438 (1997). We
disagree.

Our decision in Bonneville concerned interpreting the meaning of a
divorce decree. There, we held that, with respect to assets the parties jointly
owned during the marriage, “we will generally construe ambiguous language in
a decree favoring a mortgage rather than a co-ownership” so as “to avoid future

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conflicts between the parties and eliminate joint ownership.” Bonneville, 142
N.H. at 438. Nothing in Bonneville required the trial court in this case to order
Wife to refinance her student loan debt. Nor did our decision in Bonneville
preclude the court from making Wife solely responsible for that debt while also
requiring her to indemnify and hold Husband harmless as to that debt.

Husband next asserts that the trial court, in effect, ordered him to pay
Wife’s attorney’s fees without following the so-called Gosselin procedure, which
requires a trial court to assess the reasonableness of the claimed attorney’s
fees before making an attorney’s fee award. See Gosselin v. Gosselin, 136 N.H.
350, 353-54 (1992); see also In the Matter of Hampers & Hampers, 154 N.H.
275, 290 (2006). We agree with Wife that the Gosselin procedure does not
apply here because the trial court did not make an attorney’s fee award.

The trial court found that Wife accumulated approximately $20,646 in
credit card debt “when she was unable to meet her monthly expenses” because
she lacked sufficient employment income and support from Husband and used
three credit cards to pay her household expenses, to meet the needs of the
parties’ children, and to pay for legal fees. The court found that it was “fair
and equitable” for Husband to pay that debt “given the disparity in the parties’
incomes at the time of the divorce.” In response to the parties’ post-decree
motions, the trial court explained that it had not received any “detailed
evidence about either party’s respective attorney’s fees,” and that neither party
had requested an attorney’s fee award. The court stated that it had, instead,
“received general information [about] the use of credit cards (unsecured debts)
to pay various expenses by both parties during the pendency of the divorce,
which included attorney’s fees/legal fees, without any specificity.” Further, the
court explained, it “did not specifically order [Husband] to pay [Wife’s]
attorney’s fees, but rather the credit card balances which apparently included
some legal fees, which were not defined for the court.” The court stated that it
intended Wife “to be responsible for her charges [incurred] AFTER the
temporary orders which provided her sufficient income to cover her chosen
expenses during the temporary period.”

Here, as Wife aptly argues, the trial court did not make an attorney’s fee
award, but rather ordered Husband to pay off certain credit cards that Wife
had used to pay her expenses before a temporary decree issued. To the extent
that the credit cards were used to pay legal fees and that Husband was ordered
to pay off those credit cards, the fees “are in the nature of a property award,” to
which the Gosselin procedure does not apply.

Husband next asserts that the trial court erred by making him
responsible for 75% of the children’s uninsured medical expenses. See RSA
461-A:14, IX(a) (2018) (requiring trial courts to include “the court’s
determinations and findings relative to health insurance and the payment of
uninsured medical expenses for the child” in each child support order). In

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response to Husband’s post-decree motions, the trial court explained that it
had divided the total child support obligation, including the obligation to pay
for the children’s uninsured medical expenses, between the parties in
proportion to their respective incomes. Husband has failed to demonstrate
that, in so ruling, the trial court committed reversible error. See Gallo v.
Traina, 166 N.H. 737, 740 (2014).

Husband next challenges his alimony obligation. RSA 458:19 (2018)
(amended 2018) governs the alimony award in this case. Pursuant to RSA
458:19, I, the trial court may award alimony, either temporary or permanent,
for a definite or indefinite period of time, if it finds that: (1) the party in need
lacks sufficient income, property, or both to provide for her reasonable needs,
considering the style of living to which the parties have become accustomed
during the marriage; (2) the payor is able to continue to meet his own
reasonable needs, considering the style of living to which the parties have
become accustomed during the marriage; and (3) the party in need cannot be
self-supporting through appropriate employment at a standard of living that
meets reasonable needs.

In determining the amount of alimony, a trial court must consider
various factors enumerated in RSA 458:19, IV. Specifically, the court must
consider:

the length of the marriage; the age, health, social or economic
status, occupation, amount and sources of income, the property
awarded under RSA 458:16-a, 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). The court “may also consider the contribution of each of
the parties in the acquisition, preservation, or appreciation in value of their
respective estates and the noneconomic contribution of each of the parties to
the family unit.” RSA 458:19, IV(d).

In awarding alimony to Wife, the trial court found that, “although she is
well-educated, and possesses a proven track-record of effort and
accomplishment, [she] still has a more limited earning capacity as a school
teacher than [Husband] who has been a successful salesperson with a history
of earning a six[-]figure income.” The court found that Wife “has some need for
alimony even after deducting from her projected expenses her employment
income of $4,176.90 per month and child support of $745 bi-weekly (plus an
undetermined amount of additional child support to be paid from [Husband’s]
commission income); factoring in tax liability to her for her alimony income and
[Husband’s] tax advantage.”

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 With respect to Husband’s ability to pay, the trial court found that he
earns base pay of $8,333.34 per month in addition to commission income, and
that, at the time of the divorce hearing, he was on track to earn $170,000. In
2017, his “W-2 earnings” were $238,131.15; in 2016, they were $119,096,45;
in 2015, they were $183,374.89; and in 2014, they were $275,436.00.

The court decided that given the length of the parties’ marriage, their age
and health, their relative earning capacities, Husband’s potential to earn
substantial commissions and bonuses, Wife’s need, and Husband’s ability to
pay, it was “fair and reasonable that [Husband] be ordered to pay alimony to
[Wife] in the amount of $1,245 per month.” The court further found that it was
reasonable for Husband to pay this amount for five years “given the length of
the parties’ marriage, the large disparities in their incomes and earnings, and
[Husband’s] likely ability to reacquire a greater amount of savings and
retirement assets after the alimony order is complete.”

Husband essentially faults the trial court for considering his earning
history, including his commissions, when determining his ability to pay
alimony. He argues that “[t]he only way [he] can ever manage to live a
reasonably comparable lifestyle to what the parties enjoyed during the
marriage[ ] is to hope that his income will be supplemented with commissions.”
Otherwise, he contends, “there is simply no money available for a fixed
$1,245/month alimony award,” and the trial court’s “finding that [he] could
afford to pay alimony in this amount is error.” We find no error in this regard.
We observe that Husband acknowledges that, at the time of the November 2018
final hearing, his financial affidavit showed gross monthly income of $8,333.00
and average monthly commissions of $3,034.00.

Husband next contends that the amount and duration of alimony “far
exceeds what is fair and equitable.” However, the trial court found facts
relevant to the enumerated statutory factors, and there is evidence to support
those findings. Moreover, given the length of the parties’ marriage, the parties’
employment histories, and the disparity in their incomes, we cannot say that a
monthly alimony award of $1,245 for five years constitutes an unsustainable
exercise of discretion. See id. at 804 (upholding an alimony award of $2,850
for eight years where obligor earned $14,000 per month); see also In the Matter
of Gordon and Gordon, 147 N.H. 693, 699 (2002) (affirming alimony award of
$2,000 per month for the first two years after divorce and $1,000 per month for
the following three years when husband earned approximately $13,000
monthly).

Husband next argues that the trial court erred when it denied his post-
decree motion to modify his alimony obligation. Husband filed his motion
approximately one week after the court issued its final decree. In it, Husband
argued that the alimony award was unfair because it left him with “very little

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income.” The trial court treated the motion as a motion to reconsider the final
divorce decree and denied it. Husband argues that the trial court erred by not
treating the motion as a motion to modify. We conclude that the trial court did
not err in this respect.

Husband next asserts that the trial court erred by ordering him to
maintain a $100,000 life insurance policy to secure his alimony obligation and
a $250,000 life insurance policy to secure his child support obligation.
Husband contends that such amounts are excessive.

RSA 458:21 (2018) provides, “In all cases where alimony or an allowance
is decreed for a spouse or children the court may require security to be given
for the payment thereof.” Based upon our review of the record, we cannot
conclude that the trial court unsustainably exercised its discretion with regard
to the life insurance it required Husband to maintain.

Finally, Husband argues that the trial court erred because it afforded
less time for the final hearing than originally noticed, and because it did not
admit a certain exhibit into evidence. We decline to address the merits of these
arguments because Husband has not demonstrated that he preserved them for
our review.

Affirmed.

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

Timothy A. Gudas,
Clerk

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