In the Matter of Melissa McCauley and Richard McCauley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0059, In the Matter of Melissa McCauley
and Richard McCauley, the court on February 25, 2021, 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). The
petitioner, Melissa McCauley (wife), appeals a final decree issued by the Circuit
Court (Burns, J.), following a five-day trial, in her divorce from the respondent,
Richard McCauley (husband). On appeal, the wife raises several arguments with
respect to the trial court’s distribution of marital assets and debts, and its award
of alimony. We affirm.

First, we consider the wife’s argument that the trial court erred when it
awarded her 60% of the husband’s military pension that had accrued during the
term of the marriage, which was to be divided in accordance with the appropriate
military formula. The trial court, noting that the wife had requested 70% of the
pension, found that “it is fair and equitable to divide the retirement accounts
disproportionately, with [the wife] receiving 60% of their value, and [the husband]
40%. This is a long-term marriage, and [the husband] has a higher earning
power, and hence a greater ability to replace assets, than [the wife] does.” On
appeal, the wife argues, for the first time, that the trial court plainly erred
because, due to the operation of 10 U.S.C. § 1408(e)(1) (2018), the maximum
amount the court could award her was 50% of the disposable retired pay payable
to the husband under the pension. The husband counters that the wife did not
raise this issue before the trial court, and, in any event, that § 1408(e)(1) does
not, as the wife contends, impose such a 50% limitation.

The interpretation of § 1408(e)(1) presents an issue of first impression in
New Hampshire, and one on which other courts are divided. See, e.g., Stout v.
Stout, 144 So. 3d 177, 185 & nn.3-4 (Miss. Ct. App. 2013) (describing the split of
authority and compiling cases). Accordingly, because the wife has failed to
demonstrate that she raised this issue before the trial court, see Blagbrough
Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 35 (2007) (holding that
“[w]here a party fails to demonstrate that it raised an issue before the trial court,
the issue is not preserved for our review”), and because a decision by the trial
court cannot be plain error “[w]hen the [governing] law is not clear at the time of
trial and remains unsettled at the time of appeal,” State v. Ruiz, 170 N.H. 553,
566 (2018), this issue is not preserved for our review and we decline to decide it.

We now consider the wife’s remaining arguments. The wife argues that the
trial court erred when it ordered that her home, which is not the marital home,
be sold, and the net proceeds split between the parties with 60% awarded to the
wife, and 40% to the husband. She contends that this was error because both
parties intended that the home be awarded to her, and that the court’s order
“effectively rendered [her] homeless.” The trial court, observing that the home
posed “a dilemma,” and that, overall, the marital assets “are not sufficient to
assure the financial independence of either party, post-divorce,” concluded that,
with respect to the wife’s home, there was “only one realistic solution”:

[The home] is jointly owned, but mortgaged only in the name of [the
husband]. [The wife], by her own admission, cannot afford to
refinance it, and would never qualify to do so, given her lack of
current employment and lack of an earnings history. Continued
joint ownership, and [the husband’s] continued financial
responsibility for the mortgage, are impractical, unwise, and not
favored by the law. While [the wife] no doubt wishes to remain in the
house, the home must be sold.

Additionally, the wife argues that the trial court erred when it divided the
marital debt. She contends that “all of the debt of the parties up to the date of
decree should have been considered marital debt,” and that the trial court’s
“allocation of debt mischaracterizes the parties’ debt as ‘marital debt’ and [her]
separate ‘debt in her own name,’” resulting in her being responsible for a
disproportionate amount of the marital debt. The trial court found that the wife
“has accumulated substantial debt in her own name following separation,” and
that “it is fair and equitable for [the husband] to assume responsibility for the
parties’ marital debt.” Accordingly, the court determined that the husband would
be responsible for “the majority of the marital debt, in addition to his own credit
cards,” and that the wife would be responsible for “all debt incurred under her
own name.”

Lastly, the wife argues that the trial court erred in determining the amount
of the alimony award, because the court erroneously found that she was not
disabled. She contends that, although she has not had a “formal adjudication of
disability,” she suffers from certain conditions that negatively affect her ability to
work. The trial court acknowledged and discussed the wife’s conditions in its
order, but stated that it “does not find her to be disabled or incapable of
working.” The court observed that “[w]hile there was considerable testimony
regarding [the wife’s] health, . . . and while she asserted at many points that she
is disabled, the Court did not receive credible evidence which would indicate that
she has been declared disabled by a physician or governmental agency.”

The trial court is afforded broad discretion in determining matters of
property distribution, debt allocation, and alimony when fashioning a final
divorce decree. In the Matter of Letendre & Letendre, 149 N.H. 31, 34 (2002); In

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the Matter of Muller & Muller, 164 N.H. 512, 518-19 (2013). “We will not
overturn a trial court’s decision on these matters absent an unsustainable
exercise of discretion or an error of law. If the court’s findings can reasonably be
made on the evidence presented, they will stand.” In the Matter of Silva & Silva,
171 N.H. 1, 9 (2018) (citation omitted). Moreover, “[i]t is within the province of
the trial court to accept or reject, in whole or in part, whatever evidence was
presented,” and “we defer to the trial court’s judgment on such issues as
resolving conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence.” Cook v. Sullivan, 149 N.H. 774,
780 (2003).

As the appealing party, the wife has the burden of demonstrating reversible
error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the
trial court’s order, the wife’s challenges to it, the relevant law, and the record
submitted on appeal, we conclude that the wife has not demonstrated reversible
error. See id.

Because the additional issues raised in the wife’s notice of appeal were not
briefed, they are 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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