In the Matter of David Bournival and Eileen Bournival

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0537, In the Matter of David Bournival
and Eileen Bournival, the court on July 16, 2021, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioner, David Bournival (Husband), appeals the final decree entered by the
Circuit Court (Foley, J.) in his divorce from the respondent, Eileen Bournival
(Wife), arguing that the trial court erred by: (1) including his interests in two
discretionary trusts in the marital estate; (2) awarding Wife certain items of
personal property; and (3) granting two of her requests for factual findings.
Wife cross-appeals, arguing that the trial court inequitably divided the marital
estate. We affirm.

I. Facts

The trial court found the following facts. The parties were married in
December 1992. Twenty-four years later, in December 2016, Husband filed the
instant divorce action. At trial, the only dispute between the parties concerned
the division of the marital estate. Of particular focus were Husband’s interests
in two discretionary trusts: (1) the David P. Bournival Life Insurance Trust
dated April 24, 1991 (LIT); and (2) the Richard Bournival GST Family Trust
FBO David P. Bournival (GST).

The LIT refers to Husband as the “Donor,” but he contributed only $10.
Husband created the trust at the direction of his parents, and his parents
funded it. The intent of the trust was to provide Husband with approximately
$1,000,000 in life insurance benefits on his parents’ lives to pay estate taxes
that might be incurred when they died. At the time of the parties’ 2019 trial,
the LIT consisted of a single brokerage account containing $1,252,818, which
Husband managed. The LIT gives the trustees “uncontrolled discretion” to
distribute principal or income to Husband and his children. However, the
primary trustee of the trust, Husband’s longtime accountant, interpreted this
provision as allowing him to make distributions only to Husband. The other
trustee is Husband’s uncle. The LIT requires the trustees to provide an
accounting annually and states that the trust is to be governed by
Massachusetts law.

Husband is also a beneficiary of the GST. Like the LIT, the GST: (1) gives
the trustees “uncontrolled discretion” to make distributions of principal or
income to Husband and his children; (2) requires the trustees to provide an
annual accounting; and (3) provides that the trust shall be governed by
Massachusetts law. As with the LIT, the trustees of the GST are Husband’s
accountant and uncle. At the time of the trial, the GST’s assets, held in an
account with Husband’s investment firm, totaled $675,660.82.

The parties disputed whether Husband’s interests in the two trusts were
part of the marital estate. Husband argued that his interests were too remote
and speculative to be included in the marital estate because the discretion
afforded the trustees insulates him from having access to trust assets. Wife
countered that the discretion afforded the trustees is illusory because the
accountant (the primary trustee) lacks the neutral independence that the law
requires, and the other trustee, Husband’s uncle, has had no involvement in
the management of the trusts or their assets.

Applying Massachusetts law, the trial court determined that Husband’s
interests in the trusts were part of the marital estate. The trial court then
allocated the marital estate pursuant to New Hampshire law. The court found
that the value of the marital estate, including the value of personal property
owned by the parties, the marital homestead valued at $515,000, Wife’s 2016
inheritance of $87,350, Husband’s 2018 inheritance of $2,402,857, and his
interests in the two trusts, totaled $8,159,616. The court acknowledged that,
by statute, an equal division of the marital estate is presumed to be equitable,
but then considered specifically-enumerated statutory factors to determine
whether to deviate from that statutory presumption. See RSA 458:16-a, II
(2018). After considering several of those factors, the court found it equitable
to award Husband $5,142,906 and Wife $3,016,710.

The court acknowledged that Wife’s award constituted “only 37% of the
total marital estate,” but concluded that its distribution was equitable “given
the parties’ current circumstances, [Wife’s] greater contribution to the marriage
and to the marital estate, [Wife] helping [Husband] through graduate school,
and the enormous largely recent family helpfulness of [Husband’s] family.” The
court explained that “aside from inheritances and trust assets, the marital
estate consists of $3,828,380.00, of which [Wife] is receiving . . . 79%.”

The court also explained that, although the LIT became “part of the
marital lifestyle” because of distributions made in 2006 and 2014, “the most
serious funding” of the LIT did not occur until after Husband’s mother died in
2018, long after the parties had separated. In 2018, before Husband’s mother
died, the LIT held $212,827.43; after she died, the LIT gained “another $1
million in funding.” Similarly, it was not until his mother died that Husband
inherited an IRA of $416,255 and a more liquid account that, as of the time of
trial, held $1,986,602. The court reasoned that “none of the assets received”
by the LIT or by Husband in his individual capacity in 2018 “benefitted the
marital lifestyle in any way,” and, therefore, should not be divided equally.

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Husband moved for reconsideration, and the relevant portions of that motion
were denied. This appeal and cross-appeal followed.

II. Analysis

The trial court has broad discretion in fashioning a final divorce decree.
In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014). Its discretion
necessarily encompasses decisions concerning property distribution. Id. We
will not overturn the trial court’s decision absent an unsustainable exercise of
discretion. Id. Our standard of review requires only that we determine
whether the record establishes 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
Kurowski & Kurowski, 161 N.H. 578, 585 (2011). If the trial court’s findings
could reasonably have been made on the evidence presented at trial, they will
stand. Spenard, 167 N.H. at 3.

A. Husband’s Interests in Trusts

We first consider Husband’s assertion that the trial court erred when it
determined that his interests in the two trusts constituted marital property
subject to equitable distribution. We review this determination de novo
because it presents a question of law. See In the Matter of Cohen & Richards,
172 N.H. 78, 83 (2019). Because no party argues otherwise on appeal, we
assume without deciding that, as the trial court ruled, Massachusetts law
controls whether Husband’s interests in the LIT and GST constitute marital
property.

Under Massachusetts law, “[a] divorcing spouse’s enforceable right to an
asset generally permits that asset to be included in the marital estate” for the
purposes of equitable division. Pfannenstiehl v. Pfannenstiehl, 55 N.E.3d 933,
938 (Mass. 2016). Although intangible property interests may be part of a
spouse’s estate for the purposes of equitable distribution, “[w]hen interests are
properly characterized as mere expectancies, . . . they may not be included in
the divisible estate of the divorcing parties.” Id. at 939. Rather than
enforceable rights, expectancies “more properly are characterized as
anticipated but indefinite opportunities for the future acquisition of assets or
income,” rather than as enforceable rights. Id. (quotations omitted). “Whether
a trust may be included in the divisible marital estate requires close
examination of the particular trust instrument to determine whether the
interest is a fixed and enforceable property right, or whether the party’s interest
is too remote or speculative to be included.” Id. (quotations and citation
omitted). Making this determination “requires evaluation of the facts and
circumstances of each case” and the “attributes of the specific trust at issue.”
Id. (quotation omitted).

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 Generally, “[i]nterests in discretionary trusts . . . are treated as
expectancies and as too remote for inclusion in a marital estate, because the
interest is not present and enforceable; the beneficiary must rely on the
trustee’s exercise of discretion, does not have a present right to use trust
principal, and cannot compel distributions.” Id. at 940 (quotation and brackets
omitted). However, if the facts and circumstances of the specific trust at issue
demonstrate otherwise, then the discretionary trust may be included in the
marital estate. See, e.g., Savoy v. Savoy, 19-P-1076, 2020 WL 3815527, at *2
(Mass. App. Ct. July 8, 2020) (unpublished) (concluding that wife’s interest was
includable in the marital estate where she was the sole trustee and had
“essentially unfettered ability to utilize significant funds from the trust to
support herself” (quotation and brackets omitted)); Caruso v. Caruso, No. 06-P-
1545, 2008 WL 200301, at *1-2 (Mass. App. Ct. Jan. 24, 2008) (unpublished)
(deciding that trial court did not commit an error of law by including in the
marital estate the husband’s interest in a trust of which he was one of the
trustees where his co-trustee “was in reality little more than the husband’s ‘yes
man,’ who would go along with anything the husband wanted”).

Here, the trial court decided, based upon the evidence at trial and the
inferences drawn therefrom, that “while the trusts may be potentially
independent of [Husband] ‘on paper,’ in practice, he has so much control over
the trusts that they do not appear to be fully independent ‘discretionary’
trusts.” The court credited Wife’s evidence that the requirements of the trusts
were not being followed in that there are no annual accountings. The court
further found that, although the LIT has two trustees, Husband’s uncle and
Husband’s accountant, the uncle “has played absolutely no role” in
administering that trust since his appointment in 2008. The court determined
that the uncle’s “lack of involvement . . . left [the accountant] as the effective
sole trustee.”

The court cited several examples “of the way in which [the accountant]
appears to be acting on behalf of [Husband], rather than independently,”
including: (1) the accountant’s refusal to provide an accounting to Husband’s
estranged adult child, despite the child’s entitlement to one; (2) the
accountant’s decision to invest all of the trust funds with Husband’s
investment firm; (3) discussions between the accountant and Husband about
sharing clients; (4) discussions between the accountant and Husband about
distributions; (5) the fact that Husband is the broker of all portfolio amounts of
the trusts; (6) Husband’s active role in the investment of trust funds; (7)
Husband’s admission on cross-examination that the accountant does not know
how any of the trust funds are invested; and (8) the inference from Husband’s
testimony and the accountant’s deposition testimony that the accountant
encouraged and facilitated Husband’s early tax filing in 2017 to claim a
$20,000 overpayment that the parties had made jointly before Wife could claim
it.

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 From the circumstantial evidence, cited above, and the inferences the
court drew therefrom, the court found that Husband “probably has been
significantly involved in the investment of trust funds and [has] provide[d] [the
accountant] with input on related trust decisions.” Therefore, the trial court
found that the accountant “lacked the neutral independence, required of a
trustee, to whose discretion [Husband] pointed as preventing [Husband’s]
access to trust assets as a matter of right.”

The court acknowledged that, although Husband is not a trustee, he “has
been managing the assets of the trusts, and making unknown amounts of fees
from that role.” The court also acknowledged that, although the GST appeared
to be generational in nature, Husband’s “testamentary power of appointment to
distribute the assets of the trust to any one or more appointees other than
himself, his estate, his creditors, or the creditors of his estate,” weighed against
finding that the GST was intended to benefit only future generations.
(Quotation omitted.) Having found that the trusts are for Husband’s benefit,
the class of beneficiaries of the trusts is limited to Husband and his children,
the accountant trustee lacks independence, and Husband exerts control over
the trust assets and has a power of appointment over any assets of the GST
that are not exhausted during his lifetime, the court determined that
Husband’s interests in both trusts constitute marital property.

Husband argues that “[e]xcept for what the trial court itself described as
‘circumstantial evidence’, there was no direct, objective evidence that [he] ever
had or exercised any actual control over any decision made by [the accountant]
with respect to the administration of the trust.” In effect, Husband argues that
the inferences the trial court drew from the circumstantial evidence were
unreasonable. Although Husband offers his own inferences from the facts, we
cannot conclude that the trial court erred by drawing different ones. 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. In the Matter of Kempton &
Kempton, 167 N.H. 785, 799 (2015). Therefore, we will not substitute our
judgment for that of the trial court. Id. Because we conclude that a
reasonable person could have reached the same decision as the trial court in
this case based upon the same evidence, we uphold the trial court’s
determination that the trustee lacked the neutral independence required of a
trustee.

Husband next asserts that, to the extent that the trial court considered
whether the trust assets were used during the marriage, the trial court erred
because “[t]here [was] no objective evidence that the parties had an
expectation, present or future, to utilize the trust assets.” We note that the
trial court did not consider whether the trust assets were used in the marriage
when it ruled that Husband’s interests in the trusts were included in the
marital estate. Rather, the trial court considered whether the trust assets were

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part of the “marital lifestyle” when it considered how best to equitably
distribute the marital estate. To the extent that Husband challenges the trial
court’s factual finding that, because of how the parties used distributions from
the LIT in 2006 and 2014, the LIT became “part of the marital lifestyle,” we
uphold the finding because the record supports it.

Husband next contends that the trial court misapplied Massachusetts
law to the “limited testamentary power of appointment” he has under the GST.
We are not persuaded.

Citing Ruml v. Ruml, 738 N.E.2d 1131 (Mass. App. Ct. 2000), the trial
court stated that “[a] power of appointment is a factor weighing in favor of
inclusion of a divorcing spouse’s interest in the marital estate.” See Ruml, 738
N.E.2d at 1141-42 (holding “that in light of the broad powers of appointment
reserved by the husband in the trust assets, such assets were subject to
equitable distribution”). The trial court further stated that “[e]ven if Ruml were
somehow inapposite, as [Husband] argues, [the] broad power [of appointment]
granted to [him] weighs against a finding that the GST was intended to be
‘generational,’ and therefore that [his] interest is too ‘speculative’ to include in
the marital estate.” We find no error in these statements, which are based
upon Massachusetts law.

Husband next argues that, “[a]s a matter of law, the LIT and GST are not
marital property.” However, his argument is premised upon his assertion that
the record compelled the trial court to find that he never “had or exercised any
actual control over any decision made by [the accountant] with respect to the
administration of the trust[s],” that the LIT and GST “were not woven into the
fabric of the marriage,” and that both trusts were intended to benefit future
generations rather than him. Based upon our review of the record, we
conclude that the trial court was not compelled to find these facts.
Accordingly, having rejected the premise for the argument, we likewise reject
the argument itself.

B. Division of Marital Estate

We next address the parties’ arguments regarding the trial court’s
distribution of the marital estate. “RSA 458:16-a, II creates a presumption that
equal distribution of marital property is equitable.” In the Matter of Heinrich &
Heinrich, 164 N.H. 357, 363 (2012) (quotation omitted). Therefore, absent
special circumstances, the court must make the distribution as equal as
possible. Id. The statute enumerates several factors for the court to consider,
including: (1) the “duration of the marriage,” RSA 458:16-a, II(a); (2) the parties’
age, health, social or economic status, occupation, vocational skills,
employability, separate property, amount and sources of income, needs and
liabilities, and opportunity for future acquisition of capital assets and income,
see RSA 458:16-a, II(b)-(c); (3) the “actions of either party during the marriage

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which contributed to the growth or diminution in value of property owned by
either or both . . . parties,” RSA 458:16-a, II(f); (4) whether there is a
“[s]ignificant disparity between the parties in relation to contributions to the
marriage,” RSA 458:16-a, II(g); (5) any direct or indirect contribution a party
made to help educate or develop the career of the other party, see RSA 458:16-
a, II(h); (6) the “value of any property acquired by gift, devise, or descent,” RSA
458:16-a, II(n); and (7) “[a]ny other factor that the court deems relevant,” RSA
458:16-a, II(o). The trial court need not consider all of the enumerated factors
or give them equal weight. Heinrich, 164 N.H. at 363-64. Moreover, the trial
court is not precluded from awarding a particular asset in its entirety to one
party. Id. at 364.

In this case, the trial court considered the relevant statutory factors
before deciding that its “unique allocation of marital assets is equitable.” Wife
argues that the trial court “erred in awarding all of the trust assets to the
husband” based upon its determination that “the vast majority of the assets in
the LIT was received in 2018, combined with the facts that the funds received
in 2018 were not used during the marriage.” She contends that, in so doing,
the trial court “placed undue weight on the timing of the receipt of some of the
inheritance without considering other factors that compelled a more even
division.”

In addition, she argues that the trial court “erred . . . by ignoring the vast
majority of the factors in RSA 458:16-a, which compelled a more even division.”
Wife contends that had the court properly weighed certain facts, such as the
fact that the parties were married for nearly 24 years and that because she is
three years older than Husband, she has less time than he does to accumulate
wealth, the court would have awarded her an equal division of the entire
marital estate, including Husband’s interests in the two trusts.

In effect, Wife “asks this court to reweigh the equities in this case,” which
is not our role on appeal. Id. at 365. “Our role is only to determine whether
the trial court’s decision was a sustainable exercise of discretion, meaning that
we review only whether the record establishes an objective basis sufficient to
sustain the discretionary judgment made.” Id. (quotation omitted). Based
upon our review of the record submitted on appeal, we conclude that the trial
court sustainably distributed the marital estate in an equitable fashion.
Therefore, we hold that the trial court’s decision does not constitute an
unsustainable exercise of discretion.

Husband next contends that the trial court unsustainably exercised its
discretion by awarding his guns to Wife as well as other items of personal
property including certain electronics, draperies, and master bedroom
furniture. Husband contends that although “the trial court was alerted to the
fact that [he owns] twenty-three (23) guns,” and that he owned 12 of them
before the parties married, “the Final Decree merely awards ‘Guns’ with no

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further detail.” He contends that this award “is far too vague to be
enforceable.” To the contrary, we interpret the trial court’s order as awarding
all guns owned by either party to Wife. See In the Matter of Oligny & Oligny,
169 N.H. 533, 535 (2016) (explaining that we interpret a trial court order de
novo).

To the extent that Husband argues that the trial court unfairly awarded
the guns as well as other items of personal property to Wife instead of to him,
despite his “well-reasoned” objections, we reiterate that it is not our role to
reweigh the equities in this case. Heinrich, 164 N.H. at 365. Based upon our
review of the record, we conclude that the trial court’s award of personal
property is reasonable, and thus, does not constitute an unsustainable
exercise of discretion. See id.

C. Wife’s Requests for Factual Findings

Husband challenges the trial court’s decision to grant two of Wife’s
requests for factual findings, request nos. 46 and 47. Wife asked the trial
court to find:

46. After the filing of the divorce petition, [Wife] learned that
[Husband] was paying the household bills and expenses from her
income while depositing his income into his own investment
account.

47. In 2013 and 2014, [Wife] cashed in stock options from her
employment with a request to [Husband] who was supposed to be
her financial advisor to invest them in an account to put towards
retirement.

Husband argues that the testimony at trial does not support these requests,
and, therefore, the trial court erred by granting them. However, there is
support in the record for both requests.

As to request no. 46, Wife testified that, after the divorce petition was
filed, she discovered that the parties’ joint checking account had only $1,100,
and that although her income was being deposited into the joint account,
Husband’s income was not. She also testified that, because her income was
the only income being deposited into the joint checking account, all of the
expenses paid from the joint account were paid by her income. These expenses
included home improvements, taxes, and the children’s school tuition. Wife
testified that when her income “wasn’t enough to pay the bills, [Husband] was
drawing from a home equity line of credit,” rather than “pulling from his
checking account.” Wife testified that she asked Husband “where is your
payroll going,” and he responded that “it goes to a separate account with [his
investment firm] because it’s subject to regulatory oversight.” Wife testified

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that she did not know, at the time, that Husband “had his own separate
checking account with only his name on it [and] that his payroll was going into
[it].” Husband explained during his testimony that when he “went to work [for
his investment firm], [he] opened up a separate bank account for [his] pay to be
deposited to” so that the investment firm’s compliance department could audit
the account. From this testimony and the reasonable inferences to be drawn
therefrom, the trial court reasonably could have granted request no. 46,
interpreting the phrase “investment account” as the Husband’s separate
account maintained at his investment firm.

As to request no. 47, Wife testified that she cashed in stock options from
her employer in 2013 and 2014, and told Husband that she wanted to put the
stock option money into a retirement fund. She testified that “the money
would be wire transferred over to the joint checking account, and then
[Husband] moved it over to a money market account, . . . where it sat until
January” 2017. From this testimony and the reasonable inferences to be
drawn therefrom, the trial court reasonably could have granted request no. 47,
with the understanding that when Husband deposited the funds into a money
market account, he did so in the context of his job as a financial advisor.

Husband contends that by granting request nos. 46 and 47 and denying
two of Wife’s other requests, the trial court contradicted itself because both
sets of requests were based upon the same trial testimony. To the contrary,
the trial court was within its discretion to credit some, but not all, of Wife’s
testimony on these subjects. As the trier of fact, the court was entitled to
“accept or reject, in whole or in part, the testimony of any witness or party” and
was “not required to believe even uncontroverted evidence.” In the Matter of
Aube & Aube, 158 N.H. 459, 466 (2009).

For all of the above reasons, we affirm the trial court’s decision. Any
issue that was raised in a party’s notice of appeal, but was not briefed, is
deemed waived. See In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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