In the Matter of Michael Babineau and Jill Babineau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0320, In the Matter of Michael Babineau
and Jill Babineau, the court on August 11, 2022, issued the
following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). The petitioner, Michael Babineau (husband), appeals the
order of the Circuit Court (Leonard, J.) granting the motion for contempt filed
by the respondent, Jill Babineau (wife). The husband argues that the trial
court erred in: (1) not finding the wife’s claim to be barred by res judicata;
(2) proceeding by offers of proof; (3) finding that his financial circumstances
had changed since the prior contempt hearing; and (4) having a judge other
than the hearing judge rule on his motion for reconsideration. We affirm.

The husband first argues that the wife’s motion was barred by res
judicata. On March 8, 2021, the wife moved for contempt against the husband
for failing to pay alimony, child support, and other arrearages that had accrued
since April 1, 2019. The husband argues that res judicata applied to her
claim, at least in part, because his inability to pay arrearages that had accrued
from April 1, 2019 to February 24, 2020 had already been decided by the
March 18, 2020 order of the Circuit Court (Sadler, J.) denying the wife’s prior
contempt motion, in which the court found that he “cannot pay the amounts
due.” We disagree. The relevant issue at each contempt hearing was whether
the husband had a “present ability to make payments on the arrearage[s].”
McCrady v. Mahon, 117 N.H. 762, 763 (1977) (emphasis added). The trial
court’s finding that on March 18, 2020, he had no ability to pay arrearages
that had accrued from April 1, 2019 to February 24, 2020 did not preclude its
finding that on April 8, 2021, more than one year later, he was able to pay
arrearages that had accrued from April 1, 2019 to April 8, 2021. See id.; see
also Sleeper v. Hoban Family P’ship, 157 N.H. 530, 533 (2008) (applicability of
res judicata is a question of law that we review de novo).

The husband next argues that the trial court, in proceeding by offers of
proof, over his objection, and by denying him an evidentiary hearing on the
wife’s motion, deprived him of due process of law under the state and federal
constitutions. The trial court scheduled a 30-minute hearing on the wife’s
motion. Nothing in the record shows that the husband requested additional
time prior to the hearing. At the hearing, the husband did not dispute the
amount of arrearages, and he admitted that he had sufficient assets from his
share of the marital estate to pay them. He failed to explain to the trial court
why an evidentiary hearing was necessary or how it could result in a different
outcome. The husband cannot prevail on a due process claim absent a
showing of actual prejudice. In the Matter of Sawyer & Sawyer, 161 N.H. 11,
17 (2010). We conclude that the husband has failed to show a due process
violation because he has not shown actual prejudice. See id.

We reject the husband’s assertion that the trial court “tricked” him into
believing that it would schedule an evidentiary hearing. During the hearing,
the court advised his attorney that, “when we get to the contempt we
can . . . talk about how long you’re going to need because we’ll have to
schedule that.” However, later in the hearing, when husband’s attorney stated,
“I think the Court should schedule this for at least a two-hour hearing and we
can be heard on these things,” the court responded, “I’ve heard all the
arguments back and forth, I feel I’m in a position to issue an order.” Based
upon this record, we cannot conclude that the trial court “tricked” the husband
into believing that it would hold an evidentiary hearing before issuing its order.

The husband next argues that the trial court erred in failing to inquire as
to his ability to pay. On February 26, 2021, more than one month prior to the
contempt hearing, this court affirmed the final divorce decree which, as the
wife noted and the trial court found, meant that his share of the marital assets
had become available to pay his arrearages. While the husband is correct that
child support must be determined based upon income, not assets, see In the
Matter of Plaisted & Plaisted, 149 N.H. 522, 525 (2003), he provides no
authority for his position that arrearages must be paid with income.

Finally, the husband argues that it was error for a judge other than the
judge who presided at the hearing to rule on his motion for reconsideration.
Assuming, without deciding, that the husband preserved this issue for review,
but see Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (parties may
not have review of matters not raised in trial court), the husband acknowledges
that, by the time he moved for reconsideration, the hearing judge had been
nominated to the Superior Court. The husband provides no persuasive
authority for his position that the hearing judge must be the judge who rules
on a motion for reconsideration under these circumstances. We decline the
husband’s invitation to adopt a rule that would apply in this situation.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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