In the Matter of Wendy Mispel-John and Robert John

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0193, In the Matter of Wendy Mispel-John
and Robert John, the court on December 31, 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, Wendy Mispel-John (wife), appeals the final decree of the
Circuit Court (Tenney, J.) in her divorce from the respondent, Robert John
(husband), arguing that the trial court erred in: (1) denying her motion for a
continuance; (2) declining to impose sanctions for the husband’s violation of
the non-hypothecation order; (3) declining to impute income to the husband for
alimony purposes; and (4) dividing the marital estate equally, rather than
awarding her a greater share of the estate.

The wife first argues that the trial court erred in denying her motion for a
continuance. The decision to grant or deny a motion for a continuance is
within the trial court’s sound discretion. In the Matter of Kempton & Kempton,
167 N.H. 785, 793 (2015). “We will not overturn that decision unless it
constitutes an unsustainable exercise of discretion, and the party seeking the
continuance demonstrates that the decision is clearly unreasonable to the
prejudice of her case.” Id. (citation, quotation, and brackets omitted). In this
case, the wife filed for divorce on August 20, 2015. The case had been pending
for over four years when, on January 17, 2020, approximately one month
before the final hearing, the wife sought a continuance to retain “legal and
financial counsel.”

The wife had previously moved to continue the final hearing, which had
been scheduled for November, 14, 2019, representing to the court at that time
that she had retained counsel. The wife’s subsequent motion detailed her
continued difficulties in retaining counsel. She also alleged that the husband
had not complied with discovery regarding his finances, and that further
investigation was necessary regarding his business, M/R Tools, LLC. In its
final decree, the court found that, although the husband was not diligent in his
responses, he eventually complied with his discovery obligations regarding his
finances. The court also found that M/R Tools, LLC, was defunct, a fact that
the wife acknowledges in her brief. We need not address the additional
allegations the wife raised at the final hearing because she did not renew her
motion at the hearing. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004) (parties may not have judicial review of matters not raised in the trial
court); see also In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56
(2006) (self-represented litigants are bound by the same procedural rules that
govern parties represented by counsel). Based upon this record, we conclude
that the wife has failed to demonstrate that the trial court’s denial of her
request for a continuance was clearly unreasonable to the prejudice of her
case. See In the Matter of Kempton, 167 N.H. at 793.

The wife next argues that the trial court erred in declining to impose any
sanctions for the husband’s violation of the non-hypothecation order. See RSA
458:16-b (2018) (restraining orders in divorce matters). She argues that the
purpose of the order was to prevent the parties from squandering or concealing
assets or otherwise making it impossible for the court to equitably divide the
marital estate, see In the Matter of Brownell & Brownell, 163 N.H. 593, 600
(2012), and that the court should have sanctioned the husband for his
conduct.

The contempt power is discretionary, and the proper inquiry is whether
the trial court unsustainably exercised its discretion. In the Matter of Clark &
Clark, 154 N.H. 420, 425 (2006). The trial court’s discretion extends to the
fashioning of a remedy that is remedial, coercive, and for the benefit of the
complaining party. See In the Matter of Kosek & Kosek, 151 N.H. 722, 727-28
(2005). The record shows that, after the husband lost his job in 2019, he used
half of the $125,000 in his retirement accounts to fund a used car sales
business. The court found him to be in contempt of its non-hypothecation
order; however, the court declined to impose any sanctions because it found
that the husband did not squander or conceal any assets, and because it
ordered an equal division of the retirement accounts, and the husband “did not
take more than his half share.” Based upon this record, we conclude that the
trial court sustainably exercised its discretion in declining to impose any
sanctions for the husband’s conduct. See In the Matter of Clark, 154 N.H. at
425.

The wife next argues that the trial court erred in declining to impute
income to the husband for alimony purposes. The court found that, although
the husband’s used car sales business had not yet generated any profit, he was
“taking all the necessary steps” to “generate income soon” and “has reasonable
prospects to be able to do so successfully.” The court found that the husband
may have “an ability to pay some alimony in the near future, if his business
gets up and running and has success,” but that, in the meantime, “[h]e has
been living off proceeds from an auto accident settlement” and is unable to pay
alimony. The court ordered the husband to provide profit and loss statements
to the wife on July 1, 2020, and December 31, 2020, noting that if the
statements show sufficient income to support an award of alimony, the wife
may have grounds to seek alimony at that time. See RSA 458:19, I (2018)
(amended 2018) (allowing party to seek an award of alimony within five years of
the divorce decree). Because the wife did not ask the trial court to impute

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income to the husband for alimony purposes, we conclude that this issue is not
preserved. See Bean v. Red Oak Prop. Mgmt., 151 N.H. at 250. We note,
however, that even if the wife had raised this issue, we would conclude that the
trial court was not compelled to impute income to the husband under these
circumstances.

Finally, the wife argues that the trial court erred in dividing the marital
estate equally, rather than awarding her a greater share of the estate. She also
argues that the court failed to provide sufficient reasons for its property
division. We afford trial courts broad discretion in determining matters of
property distribution in fashioning a final divorce decree. In the Matter of
Ramadan & Ramadan, 153 N.H. 226, 232 (2006). We will not overturn the trial
court’s decision absent an unsustainable exercise of discretion. Id. Under RSA
458:16-a, II (Supp. 2019), 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. In the Matter of Letendre & Letendre, 149
N.H. 31, 35 (2002).

“The statute enumerates various factors for the court to consider, such
as the length of the marriage, the ability of the parties to provide for their own
needs, the needs of the custodial parent, the contribution of each party during
the marriage and the value of property contributed by each party.” In the
Matter of Crowe & Crowe, 148 N.H. 218, 221 (2002); see RSA 458:16-a, II. In
this case, the court noted that this was a no-fault divorce, and a long-term
marriage. The court also found no evidence that the husband dissipated
marital assets, despite the wife’s claims to the contrary. We conclude that the
record support’s the trial court’s property division, see In the Matter of
Ramadan, 153 N.H. at 232, and that the court made sufficient findings to
support its order.

Affirmed.

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

Timothy A. Gudas,
Clerk

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