In the Matter of Gerard Letourneau and Patricia Letourneau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0602, In the Matter of Gerard
Letourneau and Patricia Letourneau, the court on February 24,
2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
petitioner, Gerard Letourneau, appeals an order of the Circuit Court (Derby,
J.), issued following a review hearing, granting the respondent, Patricia Morley
(f/k/a Patricia Letourneau), an extension of time to refinance and buy out the
petitioner’s interest in the marital home. The petitioner argues: (1) that the
extension constitutes an impermissible modification of a property settlement;
(2) that he had insufficient notice that a modification of the final divorce decree
would be contemplated at the review hearing; and (3) that the circuit court’s
decision to grant the extension was unsupported by the evidence. We conclude
that the extension did not modify a property settlement, that regardless of
whether the petitioner had sufficient notice, he failed to demonstrate that any
error with regard to notice prejudiced him, and that there was sufficient
evidence to support the circuit court’s order. Accordingly, we affirm.

The record supports or the court could have found the following facts. In
June 2021, the circuit court approved the parties’ signed stipulation and
issued a divorce decree. The stipulation granted the petitioner possession of
the marital home and provided the respondent with a September 1, 2021
deadline to refinance the mortgage and pay the petitioner $26,500 as his
interest in the marital home. The stipulation also provided that, if the
respondent did not meet the deadline, the respondent’s “right to refinance the
property and buy out [the petitioner] shall lapse,” and the petitioner would
have the option to purchase the respondent’s interest in the marital home for
$26,500 until November 1, 2021. If neither party exercised his or her option to
purchase, then the petitioner would list the property for sale and the parties
would divide the proceeds equally. Thereafter, the respondent had the property
appraised, which, according to the respondent, indicated that because of the
“wasted” condition of the property, it was “uninhabitable” and “unmarketable.”
Consequently, the respondent alleged, significant repairs were necessary to
appraise the property at a value that would enable her to refinance it and pay
off the petitioner’s interest.
 In August 2021, the respondent filed a motion to modify the divorce
decree and a motion for an extension of time to buy out the petitioner’s interest
in the marital home. In the motion to modify, the respondent alleged that the
petitioner had restricted access to the property and damaged the property so
badly that it was “unmarketable” and therefore impossible to carry out the
terms of the original decree. The petitioner objected, asserting that he had not
damaged the marital home.

In September 2021, the circuit court issued an order denying the
respondent’s motion for modification but granting, in part, her motion for an
extension of time. Regarding the motion to modify, the court recognized that it
“may only modify a final property settlement upon a showing of fraud, undue
influence, deceit, misrepresentation or mutual mistake,” which the
respondent’s motion did not allege. Regarding the motion for an extension of
time, the court noted the “frequent and disproportionate conflict between the
parties” and that both parties remained more interested in protracting the
conflict than reaching resolution. The court explained that “it was probably
foreseeable that the parties would be unable to comply with their final decree
without additional court involvement” and that it “probably erred when it
approved the parties’ likely unrealistic financing deadlines.” Accordingly, the
court extended the respondent’s date of performance to November 15. The
petitioner filed a motion for reconsideration, which the court denied.

In October 2021, the parties convened at the circuit court for a
scheduled review hearing. At the hearing, the respondent requested that the
court extend her purchase deadline by an additional thirty days to December
15, 2021. Counsel for the respondent explained that the respondent needed
more time to secure the money to make the repairs, as well as to complete the
repairs so that she could refinance the mortgage. Counsel also cited other
problems, including difficulties in scheduling an appraisal.

Counsel for the petitioner objected to the extension. Counsel cited the
existing agreement between the two parties and argued that an extension
would “deprive[] [the petitioner] of the deal he made.” Counsel also cited the
history of conflict between the parties and the lack of evidence that the
respondent had been approved for a mortgage or that she had the money
necessary to make the repairs, pay the respondent for his interest in the
property, and pay off the existing mortgage.

In November 2021, the circuit court issued an order that extended the
respondent’s deadline to December 15, 2021. The court considered the
evidence and arguments made at the review hearing, “including the scheduling
problems with appraisers,” and explained that the respondent’s “request for
additional time seems based upon the difficulty of getting an appraiser to visit
the property.” The petitioner filed a motion for reconsideration, which the
circuit court denied. This appeal followed.

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 On appeal, the petitioner first argues that the extension constituted an
impermissible modification of a property settlement. The petitioner reasons
that the dates in the stipulation granting the parties the option to purchase the
marital residence are “an essential part of the property settlement” and are
therefore non-modifiable. As a general rule, provisions of a final divorce decree
relating to a property settlement cannot be modified due to a change of
circumstances. See Douglas v. Douglas, 109 N.H. 41, 43 (1968). Non-
modifiable property settlements include “the duty to make mortgage payments
and the obligation to establish a trust fund and maintain life insurance
policies.” 3 C. Douglas, New Hampshire Practice, Family Law § 13.84, at 13-
118 (4th ed. 2014); see also Stebbins v. Stebbins, 121 N.H. 1060, 1063 (1981).
Implementation of the terms of a stipulation, however, does not constitute the
modification of a property settlement. Sommers v. Sommers, 143 N.H. 686,
692 (1999).

A trial court may modify the timing of a property sale in a divorce decree
when it does not affect the value of the property distribution. See 3 C.
Douglas, supra § 13.84, at 13-118 (“Although sale of a family home is not
modifiable, the court has permitted modification of the timing of the sale and
the division of proceeds in specific circumstances.”); see also Twardosky v.
Twardosky, 113 N.H. 438 (1973). In Twardosky, the wife received custody of
the children and possession of the home until the occurrence of certain events,
upon which the home was to be sold and proceeds divided sixty-forty percent
between the wife and the husband. Twardosky, 113 N.H. at 439. Thereafter,
the husband gained custody of the children and subsequently moved to modify
the divorce decree, seeking possession of the home and a right to purchase the
wife’s interest therein. Id. We held that, although the portion of the decree
granting a sixty percent/forty percent division of the interest in the home was a
non-modifiable property settlement, the portion of the decree relating to the
sale of the property was “of a different nature” because it aimed to preserve the
home for the children and therefore could be modified. Id.

Here, the trial court similarly adjusted the timing of the sale of the house
without affecting the petitioner’s interest in the home. See id. Therefore, the
petitioner would have received his interest in the home, initially valued at
$26,500, regardless of the date by which the respondent had to exercise her
option to purchase. Accordingly, we conclude that the circuit court’s
adjustment of the dates of performance did not modify the property settlement.

The petitioner next argues that the circuit court impermissibly modified
the property settlement in violation of RSA 458:14 (Supp. 2022) because there
were no pending motions at the time of the hearing, and the petitioner did not
receive notice that an extension would be considered at the October review
hearing. RSA 458:14 provides that “[t]he court, upon proper application and
notice to the adverse party, may revise and modify any order made by it . . . .”
(Emphasis added). The test for adequacy of notice is whether the interested

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parties have received notice reasonably calculated to apprise them of the
pendency of the action and to afford them an opportunity to present their
objections. Petition of Smith, 139 N.H. 299, 305 (1994). This test addresses
the concern that a party should not be unfairly surprised. Id. In the divorce
context, notice must give the parties actual notice of the hearing and the issues
to be addressed. Douglas v. Douglas, 143 N.H. 419, 423 (1999). The trial
court has broad authority to determine the nature and extent of notice,
although notice and an opportunity to be heard cannot be denied altogether.
Mauzy v. Mauzy, 97 N.H. 514, 516 (1952).

We note that the petitioner did not argue a lack of notice at the October
review hearing. Nonetheless, even if he had timely raised this issue, we
conclude that the petitioner failed to demonstrate that any error with regard to
notice prejudiced him. See McIntire v. Woodall, 140 N.H. 228, 230 (1995) (lack
of notice claim requires a showing of actual prejudice). The Notice of Hearing,
dated September 21, 2021, scheduled a review hearing on October 25 to
address the ongoing conflict within the parties’ divorce case and the
respondent’s attempt to evict the petitioner from the property in a related
landlord-tenant matter between the parties. The property was the primary
marital asset at issue in the divorce case, and the court had already granted
the respondent her first extension to purchase the property. When counsel for
the respondent requested an additional thirty days for the respondent to
purchase the property, the petitioner objected to another extension and
expressed his skepticism of the respondent’s “ability to borrow enough to pay
off the mortgage, plus the amount” necessary to complete the identified repairs
and buy out the petitioner’s interest. On this record, we conclude that the
petitioner was provided with a sufficient opportunity to be heard and was not
prejudiced by any alleged error with respect to notice.

Lastly, the petitioner argues that the circuit court’s decision to grant the
respondent an extension, specifically its reliance on the respondent’s
challenges with scheduling an appraiser, was unsupported by the evidence.
We review sufficiency of the evidence claims as a matter of law, and uphold the
findings and rulings of the trial court unless they are lacking in evidentiary
support or tainted by error of law. Achille v. Achille, 167 N.H. 706, 715 (2015).
When performing this review, we accord considerable weight to the trial court’s
judgments on the credibility of witnesses and the weight to be given testimony.
Id.

We conclude that there was sufficient evidence to support the trial
court’s decision to grant the extension based, at least in part, on challenges
associated with the appraisal of the property. At the review hearing, counsel
for the petitioner acknowledged that “the real estate market is hot; appraisers
are in short supply.” Counsel for the respondent stated that he had other
closings where it took four months to get an appraisal, that the “housing
market in this area has been crazy,” and that it would take months before the

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respondent could get an appraiser and the loan application processed. The
court also recognized that the real estate market was “heated,” making it
difficult to complete the financing in time. Although, as the petitioner notes,
the respondent previously obtained an appraisal of the property, this appraisal
identified issues with the house that, according to the respondent, rendered
the house unmarketable. Accordingly, the respondent was in the process of
making repairs to the house, and she would require another appraisal after the
repairs were completed.

For the foregoing reasons, we conclude that the circuit court did not
impermissibly grant the respondent an extension. The extension did not
modify the property settlement, any error with regard to notice did not
prejudice the petitioner, and there was sufficient evidence to support the
extension. Accordingly, we affirm the circuit court’s order granting the
respondent additional time to exercise her option to purchase the property.

Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and
DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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