In the Matter of Brian Whyte and Rebecca Whyte

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0215, In the Matter of Brian Whyte and
Rebecca Whyte, the court on February 26, 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
appellant, Brian Whyte, appeals an order of the Circuit Court (Alfano, J.) finding
him in contempt for failing to pay child support on certain bonus income. On
appeal, the appellant argues that the trial court erred by finding him in contempt
because “it was reasonable for [him] to construe the court’s orders as not
requiring him to pay additional child support on the bonus received before the
effective date of the final decree.” Additionally, the appellant argues that,
because the final divorce decree was inconsistent with respect to the amount of
child support and alimony he was required to pay, the trial court erred by
ordering him to pay the higher amounts. Lastly, the appellant argues that the
trial court erred by awarding attorney’s fees to the appellee, Rebecca Whyte. We
reverse in part, vacate in part, and remand.

The pertinent facts are as follows. The parties were married in October
2001, and have two minor children. In September 2018, the trial court (Cross,
R., approved by Leonard, J.) issued a temporary decree in the parties’ divorce
proceeding. Pursuant to the temporary decree, the parties were to continue living
together in the marital home on an interim basis. The appellant was ordered to
continue paying all of the housing expenses and most of the family’s living
expenses, and was also ordered to pay alimony to the appellee in the amount of
$1,000 per month. He was not obligated to pay child support.

Following a hearing in January 2019, the trial court (Cross, R., approved
by Leonard, J.) issued a final divorce decree on March 20, 2019. With respect to
child support, the final decree stated:

[The appellant] offers to pay guidelines child support, which he
calculates as $511 per week. [The appellee] requests guidelines
support, which she testified is $2,600 per month. The court finds
that guidelines support is appropriate . . . . See accompanying
Uniform Support Order. [The appellant] shall also pay additional
child support on any income over his base salary . . . . If he receives
bonuses or overtime in addition to his base salary, he shall, within 5
days of receiving that income, put the gross amount in the child
 support guidelines worksheet and forward the appropriate payment
to [the appellee] with a copy of his paystub and the guidelines
worksheet.

The Uniform Support Order provides that the appellant is to pay $2,124 per
month in child support, and that “[p]ayments on all ordered amounts shall begin
on effective date of decree.” With respect to alimony, the trial court ordered the
appellant to pay “$1,367 per month for 30 months from the effective date of this
Decree.” In calculating that amount, the trial court accounted for the appellant’s
monthly child support obligation of $2,124, plus “additional support on his
bonuses and overtime income,” which, based on his average prior earnings, the
trial court found amounted to an additional $629 per month. Elsewhere in the
final decree and Uniform Alimony Order, however, the trial court set forth a
different amount of alimony: $1,327.

On or about March 7, 2019, after the close of the evidence but prior to the
issuance of the final decree, the appellant received an annual bonus in the
approximate amount of $45,000. In June 2019, the appellee filed a petition for
contempt, alleging that the appellant had violated the terms of the final decree by
not paying additional child support on the bonus amount. Additionally, she
requested nunc pro tunc review of the inconsistent child support and alimony
awards set forth in the final decree, and observed that the appellant had been
paying the lesser amounts. She noted the inconsistent alimony awards of $1,367
and $1,327, and also noted that the weekly child support amount of $511, when
converted to a monthly amount by multiplying it by 4.33, does not equate to the
$2,124 per month awarded by the trial court.

In February 2020, following a hearing, the trial court granted the appellee’s
contempt petition. The court found that the marital referee “was informed about
and knew that [the appellant] was going to receive a bonus in March of 2019,”
and that “[t]he issue of that March bonus was addressed in the order.”
Accordingly, observing that the appellant “chose not to comply with the order” by
not paying child support on the bonus, the trial court found the appellant in
willful contempt. The trial court also granted the appellee’s request for nunc pro
tunc review, finding that the marital referee “stated in the narrative order that
[the appellant] was ordered to pay child support of $511 per week, which is
$2,214 per month. The [Uniform Support Order] erroneously says $2,124 per
month.” Further, the trial court found that the marital referee “stated in the
narrative order that the Court awarded [the appellee] $1,367 per month in
alimony for a period of 30 months. The Uniform Alimony Order erroneously
states that the alimony award is $1,327 per month.” Accordingly, the trial court
ruled that “the higher numbers in the narrative order control and should be in
effect going forward.” The trial court denied the appellant’s motion for

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reconsideration, and granted the appellee’s request for attorney’s fees. This
appeal followed.

We first address the appellant’s argument that the trial court erred by
finding him in contempt. He argues that because he received the bonus before
the final decree became effective, and because the temporary order — which
remained in force until the final decree became effective — did not require him to
pay child support, “it was reasonable for [him] to construe the court’s orders as
not requiring him to pay additional child support on the bonus received before
the effective date of the final decree.” The appellee does not counter the
appellant’s argument, instead arguing that “[i]f [the appellant] received the
substantial bonus after the effective date of the divorce, he is in contempt” for
failing to pay child support on the bonus in accordance with the final decree.
Alternatively, she argues, “if [the appellant] received the substantial bonus prior
to the effective date of the divorce he will have . . . deprived the [appellee] of her
fair share of a marital asset, which implicates fraud in the division of marital
assets.” We agree with the appellant.

“The contempt power is discretionary and the proper inquiry is not whether
we would have found the respondent in contempt, but whether the trial court
unsustainably exercised its discretion in [doing] so.” In the Matter of Giacomini
& Giacomini, 150 N.H. 498, 500 (2004). Here, the final divorce decree did not
take effect until it was issued. See Fam. Div. R. 2.29 (providing that alimony and
uniform support orders “are effective upon the issuance of the clerk’s notice of
decision, unless the court specifies, either orally or in writing, another effective
date”); Gray v. Kelly, 161 N.H. 160, 167-68 (2010) (holding that a trial court order
becomes effective on the date it is rendered unless a party files an appeal or
obtains a stay). Because the appellant was not obligated to pay child support
under the terms of the temporary divorce decree, and because the final divorce
decree expressly provided that “[p]ayments on all ordered amounts shall begin on
effective date of decree,” the trial court unsustainably exercised its discretion by
finding the appellant in contempt for violating an order that had not yet been
issued, and which was not yet effective, when he received his bonus.

The appellee’s alternative argument, that the bonus constitutes a marital
asset to which she is entitled a 50% share, is not persuasive. “A property
settlement in a divorce decree is a final distribution of a sum of money or a
specific portion of the spouses’ property and is not subject to judicial
modification on account of changed circumstances. Such a property distribution
will not be modified unless the complaining party shows that the distribution is
invalid due to fraud, undue influence, deceit, misrepresentation, or mutual
mistake.” In the Matter of Birmingham & Birmingham, 154 N.H. 51, 57 (2006)
(quotations, citation, and brackets omitted). Here, the appellee has failed to show
fraud, undue influence, deceit, misrepresentation, or mutual mistake. In its

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contempt order, the trial court expressly found that the marital referee “was
informed about and knew that [the appellant] was going to receive a bonus in
March of 2019,” and that “[t]he issue of that March bonus was addressed” in the
final divorce decree. The appellee does not challenge that finding, instead
arguing that the appellant did not disclose the amount of the bonus. However,
that argument does not amount to a showing of fraud, undue influence, deceit,
misrepresentation, or mutual mistake — the appellant had not yet received the
annual bonus at the time of the final divorce hearing, and both the final decree
and the appellant’s financial affidavit indicate that the amount of his annual
bonus varies from year to year. Moreover, nothing in the record indicates that
the trial court held the evidentiary record open following the conclusion of the
final hearing, or otherwise ordered the appellant to supplement the record once
he received his March bonus.

Next, the appellant argues that, because the final divorce decree was
inconsistent with respect to the amount of child support and alimony he was
required to pay, the trial court erred in its February 2020 order when it ordered
him to pay the higher amounts. He contends that the trial court’s interpretation
of the final decree “lacks sufficient findings” to support its determination that the
lower amounts were erroneous, and that the trial court’s ruling on this issue
“must be vacated and the matter remanded for further hearing.” The appellee
counters that the trial court sustainably exercised its discretion by correcting
“mathematical and scrivener’s errors, which were clearly mistakes.” She
contends that the court adopted the appellant’s child support calculation, but,
“instead of multiplying [the appellant’s] weekly child support obligation of $511
by 4.333 to arrive at an accurate monthly figure of $2,214, the court instead
stated that [the appellant’s] child support payment would be $2,124 ($511 x 4).”
Further, she argues that the trial court intended to award her alimony in the
amount $1,367, and that the $1,327 amount set forth elsewhere was a
scrivener’s error.1 We agree with the appellant.

The interpretation of a trial court order presents a question of law, which
we review de novo. In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008).
Based on the record before us, which does not include the child support
guidelines worksheet, we cannot definitively determine which set of numbers is
correct. Although the appellee argues that the trial court adopted the appellant’s

1 The appellant’s pending motion to strike portions of the appellee’s brief is denied. The
appellant contends that the appellee’s “claims of scrivener’s error and mathematical error” were
not preserved, and are not properly before this Court. However, the burden to preserve issues
for appellate review falls on the appellant, not the appellee. See Bean v. Red Oak Prop. Mgmt.,
151 N.H. 248, 250 (2004) (“It is the burden of the appealing party . . . to demonstrate that she
raised her issues before the trial court.”). In any event, the appellee, in her petition for
contempt and nunc pro tunc review, clearly raised the issue of the discrepancies in the trial
court’s child support and alimony awards.

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child support calculation of $511 per week, and erred when it multiplied that
figure by 4, instead of by 4.333, to convert it to a monthly amount, there are two
flaws with her reasoning. First, $511 multiplied by 4 equals $2,044, not, as the
appellee contends, $2,124 (the trial court’s result). Second, and more
importantly, it is not at all clear in the final decree that the trial court adopted
the appellant’s $511 figure as the correct child support guidelines amount. The
trial court never said so expressly, and did not explain how it arrived at the
$2,124 figure set forth elsewhere in the final decree. Although it is possible that
the trial court inadvertently transposed the digits when calculating the monthly
amount based on the $511 weekly figure, we cannot say so definitively without
the guidelines worksheet or further factual findings. Further, even if the appellee
is correct that the trial court intended to award child support in the amount of
$2,214 per month, not $2,124 per month, the trial court plainly erred in its
contempt order by failing to account for that correction when it ordered the
appellant to pay the higher alimony award of $1,367 — an amount derived, in
part, from the $2,124 child support award that the court found to be erroneous.
Accordingly, given the lack of factual findings and sparse analysis to support the
trial court’s determination that “the higher numbers in the narrative order
control,” and given that that determination itself results in a mathematical error,
we vacate the trial court’s decision with respect to this issue, and remand for
further findings of fact to resolve the inconsistencies in the final decree. See In
the Matter of Clark & Clark, 154 N.H. 420, 426 (2006) (remanding issue
regarding calculation of child support to trial court when resolution may require
additional factual findings).

Lastly, the appellant argues that the trial court erred by awarding
attorney’s fees to the appellee. He contends that because “the finding of
contempt must be vacated, it follows that the award of attorney fees must also be
vacated.” The appellee counters that the trial court properly found the appellant
in contempt, and that, accordingly, the trial court did not unsustainably exercise
its discretion when it awarded attorney’s fees. See RSA 458:51 (2018) (providing
that, in divorce cases, the trial court shall award attorney’s fees to the prevailing
party when the other party fails, without just cause, to obey a prior court order or
decree). She also observes that the final divorce decree provides that “[a]ny party
who unreasonably fails to comply with this Decree [or] other court Order may be
responsible to reimburse the other for whatever costs, including reasonable
attorney’s fees, that may be incurred in order to enforce compliance.”

“We review a trial court’s award of attorney’s fees under our unsustainable
exercise of discretion standard, giving deference to the trial court’s decision.”
Shelton v. Tamposi, 164 N.H. 490, 501 (2013). “To be reversible on appeal, the
discretion must have been exercised for reasons clearly untenable or to an extent
clearly unreasonable to the prejudice of the objecting party.” Id. Here, the trial
court’s award of attorney’s fees was premised upon its finding that the appellant

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was in willful contempt. Accordingly, because we reverse the trial court’s
contempt finding, the court’s award of attorney’s fees is not sustainable.

Reversed in part; vacated in part;
and remanded.

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

Timothy A. Gudas,
Clerk

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