In the Matter of Kimberly Bleakley and Scott Bleakley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0378, In the Matter of Kimberly Bleakley
and Scott Bleakley, the court on April 3, 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 petitioner, Kimberly Bleakley (wife), appeals the post-decree order of
the Circuit Court (Burns, J.), modifying the obligations of the respondent, Scott
Bleakley (husband), to pay alimony and child support. The wife argues that
the trial court erred in: (1) eliminating the husband’s obligation to contribute
to a joint expense account for the children; (2) terminating the husband’s
alimony obligation; and (3) permitting the husband to modify his financial
affidavit after the hearing.

The wife first argues that the trial court erred in modifying its final order,
on reconsideration, to no longer require the husband to contribute to a joint
expense account for the children. The parties’ September 13, 2016 stipulated
divorce decree includes a downward deviation from guideline child support and
a provision that each party would contribute $400 per month to a joint account
for the children’s extracurricular activities and other expenses. On April 28,
2017, the wife moved to modify child support based upon a substantial change
in circumstances; specifically, the parties no longer shared parenting time for
one of their children. At a child support hearing, the wife requested guideline
child support. The hearing officer advised the wife that if guideline support
were ordered the husband no longer would be required to contribute to the
joint account. See In the Matter of Donovan & Donovan, 152 N.H. 55, 60
(2005) (extracurricular activity expenses included in guideline support).
Following the hearing, the officer ordered temporary guideline support of
$1,660 per month and eliminated the husband’s obligation to contribute to the
joint account. The mother did not move to reconsider this ruling, although she
moved to reconsider other aspects of the July 3, 2018 temporary order. In its
March 17, 2019 final order, the court ordered guideline support of $1,660 per
month and, in addition, ordered the parties to contribute to the joint account.
The husband moved to reconsider, and the court corrected its error, stating
that it did not intend to deviate from the guidelines.

On appeal, the wife argues that the trial court erred in eliminating the
husband’s obligation to contribute to the joint account, given “the disparity of
income, the elimination of the alimony obligation, the parties[’] prior
agreement, and the . . . court’s failure to provide specific findings to support”
its decision. The husband argues that the wife failed to preserve these issues
because she did not raise them in the trial court. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004) (“It is a long-standing rule that parties may
not have judicial review of matters not raised in the [trial court].”). Assuming,
without deciding, that the issues are preserved for review, we find no error.
New Hampshire’s child support guidelines establish a uniform system to
determine the amount of child support awards. In the Matter of Silva & Silva,
171 N.H. 1, 4 (2018). The guidelines serve “not only to ensure uniformity in
determining the amount of child support, but also to ensure that both the
custodial and non-custodial parents share in the support responsibility for
their children, according to the relative percentage of each parent’s income.”
Id. There is a rebuttable presumption that a child support award calculated
under the guidelines is the correct amount of child support. Id. If the trial
court deviates from the guidelines, it must make a written finding to justify its
decision. See RSA 458-C:4, II (2018). In this case, the trial court did not
deviate from the guidelines and made no finding to rebut the presumption in
favor of guideline support. As noted above, extracurricular activity expenses
are included in guideline support. In the Matter of Donovan, 152 N.H. at 60.
Eliminating the husband’s alimony obligation is not a relevant consideration
because alimony and child support serve different functions and are
terminated for different reasons. In the Matter of Watterworth & Watterworth,
149 N.H. 442, 446 (2003).

The wife next argues that the trial court erred in terminating the
husband’s alimony obligation, “given that the alimony order had been
previously agreed upon, given the significant disparity in income, and given the
court denied shared expenses for the children.” At the outset, we note that the
parties’ divorce decree is not controlling because alimony is always modifiable.
Laflamme v. Laflamme, 144 N.H. 524, 527 (1999). We also note that a
disparity in income, as such, is not a basis for awarding alimony. See RSA
458:19, I (2018) (amended 2018) (alimony awarded based upon need and
ability to pay). The shared expense provision is not a relevant consideration
because, as previously noted, alimony and child support serve different
purposes. See In the Matter of Watterworth, 149 N.H. at 446.

To obtain an order modifying alimony, the husband was required to show
that a substantial change in circumstances occurred after the initial award,
“making the current support amount either improper or unfair.” Laflamme,
144 N.H. at 527 (quotation omitted). The trial court found that the “increase in
child support from $360 per month to $1,660 per month, is a substantial
change in circumstances which makes the original alimony award unfair and
improper.” The trial court also found that these changed circumstances were
not both anticipated and foreseeable. Moreover, the court found that, even
assuming that the wife continued to demonstrate financial need, the husband

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no longer could afford to pay alimony, given the substantial increase in child
support. See RSA 459:19, I(b) (obligor must have ability to pay).

The wife argues that the increase in child support is not a substantial
change in circumstances warranting a change in alimony because, when the
parties entered into their stipulated divorce decree, the child support
worksheet showed that guideline support would be approximately $1,500.
Thus, she argues, it was foreseeable that the court may order $1,660 in child
support. The husband counters that the wife failed to preserve this issue for
review because she did not raise it in the trial court. See Bean, 151 N.H. at
250. Assuming, without deciding, that the wife preserved this issue for review,
we find no error. “[A] change in circumstances that is both anticipated and
foreseeable at the time of the decree does not constitute a substantial change
in circumstances warranting a change in alimony.” In the Matter of Arvenitis &
Arvenitis, 152 N.H. 653, 656 (2005) (quotation omitted). “A determination that
a change in circumstances was actually anticipated is a factual finding that
must be based on evidence.” Id. at 656-57 (quotation and citation omitted).
We conclude that the record supports the trial court’s finding that the changed
circumstances were not both anticipated and foreseeable at the time of the
decree.

In her reply brief, the wife argues that “Canaway and Fortuna are
controlling” as to the alimony issue because, she asserts, the husband’s
increased expenses are “primarily due to his relationship with a new partner.”
As previously noted, we do not address issues that were not raised in the trial
court. Bean, 151 N.H. at 250. Nor do we address issues raised for the first
time on appeal in a reply brief. Harrington v. Metropolis Property Management
Group, 162 N.H. 476, 481 (2011). We note, however, that in Canaway, the trial
court found that the husband had the ability to pay alimony “but chose to
spend his available funds in other areas such as supporting his fiancée and
helping to clear her debt and run her businesses.” In the Matter of Canaway &
Canaway, 161 N.H. 286, 288 (2010). The trial court made similar findings in
Fortuna v. Fortuna, 103 N.H. 547 (1961). The trial court made no such
findings in this case.

Finally, the wife argues that the trial court erred in permitting the
husband to modify his financial affidavit “after the hearing,” without identifying
which hearing. We conclude that the wife has failed to demonstrate error. See
Coyle v. Battles, 147 N.H. 98, 100 (2001) (appellant has burden to demonstrate
error and provide adequate record for review). In the questions presented
section of her brief, the wife states that she raised this issue in her “cross-
motion for reconsideration” of the final order. In that motion, the wife argued
that the hearing officer permitted the husband to modify his financial affidavit
after the June 27, 2018 hearing, depriving her and her counsel of any ability to
cross-examine him. However, the transcript of that hearing shows that, in
response to the husband’s request to consult with his accountant, after the

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hearing, about expenses claimed in his financial affidavit, the hearing officer
ruled, “I’m not taking any . . . additional information at this time.” Nothing in
the record shows that the hearing officer accepted a revised financial affidavit
from the husband after that hearing. See id. Although the wife argues that the
trial court admitted “the affidavit” at the final hearing held on October 29, 2018
and December 5, 2018, the record shows that the husband submitted updated
affidavits for each hearing, see Fam. Div. R. 2.16, and the wife does not specify
which affidavit she is referring to, how the court allegedly erred, or when she
raised the issue in the trial court, see Bean, 151 N.H. at 250. Moreover, the
record shows that the wife thoroughly cross-examined the husband at the final
hearing on his current and prior financial affidavits. Accordingly, we find no
error.

Affirmed.

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

Timothy A. Gudas,
Clerk

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