In the Matter of Jonathan Merrill and Lea Merrill

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0488, In the Matter of Jonathan Merrill
and Lea Merrill, the court on April 4, 2024, 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, Jonathan Merrill (Husband), appeals an order entered by the Circuit
Court (Lemire, J.) following a remand by this court for further proceedings
related to property division and alimony. See In the Matter of Merrill & Merrill,
174 N.H. 195, 200-01 (2021). We affirm.

We draw relevant facts from the prior decision of this court, the trial
court’s order, and the record submitted on appeal. In the prior appeal, we
determined that the trial court correctly excluded Lea Merrill’s (Wife’s) mother’s
condominium from the marital estate. Id. at 200. However, we determined
that the court erred when it included assets owned by the JGM 2012 Trust—of
which Husband is a beneficiary—in the marital estate. Id. at 198-99. As a
result, on remand, the trial court was tasked with equitably dividing the
marital estate exclusive of the Husband’s interest in the JGM 2012 Trust. Id.
at 200. On remand, the trial court: (1) conducted a new equitable division of
the marital estate; and (2) determined a new alimony award.

The trial court also issued several orders addressing the parties’ motions.
One order, dated January 13, 2022, denied the Husband’s Motion for
Sanctions, Contempt and/or Other Relief. Another order, issued February 11,
2022, determined that the Husband would remain responsible for the
obligations set forth in the Temporary Decree throughout the time that the first
appeal was pending. This appeal followed.

The trial court has broad discretion in determining matters of property
division and alimony when fashioning a final divorce decree. In the Matter of
Gronvaldt & Gronvaldt, 150 N.H. 551, 554 (2004). It also has broad discretion
in determining whether to grant or deny a motion for contempt. See In the
Matter of Ndyaija & Ndyaija, 173 N.H. 127, 138 (2020). We review its decisions
under an unsustainable exercise of discretion standard. Id.; Gronvaldt, 150
N.H. at 554. This standard requires that we review only whether the record
establishes an objective basis sufficient to sustain the discretionary judgment
made, and we will not disturb the trial court’s determination if it could
reasonably have been made. In the Matter of Kurowski & Kurowski, 161 N.H.
578, 585 (2011). We will not substitute our judgment for that of the trial court
or reweigh equities. In the Matter of Braunstein & Braunstein, 173 N.H. 38, 47
(2020). We interpret a trial court’s order de novo. In the Matter of Summers &
Summers, 172 N.H. 474, 480 (2019).

The Husband argues that the trial court erred or unsustainably exercised
its discretion by: (1) failing to consider the current value of the Wife’s
condominium in its property division or alimony decisions; (2) using property
values and valuation dates established in the November 2019 Final Decree; (3)
determining that alimony will automatically resume upon termination of
Husband’s short-term disability payments; (4) failing to consider Wife’s lack of
meaningful effort to be self-supporting and the marital lifestyle; (5) ordering
installment payments of the cash equalization payment that exceed his ability
to pay; (6) failing to reverse temporary orders that exceeded the court’s
authority and Husband’s ability to pay; (7) incorrectly interpreting the support
orders in effect during the first appeal; (8) denying Husband’s motions for
contempt without an evidentiary hearing and finding one of the motions
baseless, frivolous, and in bad faith; and (9) failing to order that alimony would
terminate upon remarriage, cohabitation, or death as was included in the
“original Final Decree.”

The Husband’s first two arguments contend that the trial court should
have considered the increased value of the Wife’s condominium in its property
division and alimony determinations. We disagree. The trial court conducted a
thorough review of the law. It articulated reasons for relying upon the various
asset values as set forth in the prior Final Decree which were not vacated on
appeal. The trial court observed that the Husband sought to revalue only the
condominium awarded to the Wife, but not real estate business assets awarded
to him. The trial court considered that our order remanding for further
proceedings was silent regarding whether assets should be revalued on
remand, “thereby affording the trial court discretion on remand to determine
what proceedings are needed in order to comply with the Supreme Court
mandate.” After extensively reviewing applicable New Hampshire law, the trial
court found no explicit direction addressing the issue of a revaluation on
remand, although it noted that other jurisdictions have addressed the issue.
Additionally, the trial court explained the various approaches to the issue,
including maintaining the original values, vacating all values, and engaging in
an expensive revaluation, or revaluing only those assets that were deemed in
error on appeal. The trial court concluded that it would use the values
established in the original Final Decree because neither party challenged the
values on appeal, and the “Supreme Court did not vacate based upon
valuation.” We find no error in the trial court’s analysis or conclusion. In the
Matter of Wolters & Wolters, 168 N.H. 150, 155 (2015) (trial court has
discretion to determine the value of assets).

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 The Husband next argues that the trial court erred by ordering him to
resume alimony payments upon the termination of his short-term disability
benefits without requiring a further hearing on his ability to pay. The Husband
presented limited evidence of his “present inability to work” after a successful
surgery repaired his ruptured pectoral muscle. He presented a letter from a
physician assistant that explained he could not return to work until cleared by
his surgeon but presented no plans to follow up with his surgeon. The trial
court also noted that no evidence supported the conclusion that the Husband
could not resume working at the family business where he earned more than
$188,000 annually and the “vast majority” of his duties do not require physical
labor. The trial court also noted the “limited evidence that [Husband] is not
receiving payment beyond the short-term disability benefits.” In addition, the
court noted the Husband’s ability to draw upon the JGM 2012 Trust for his
reasonable needs. Nevertheless, the trial court continued the previously
ordered suspension of the Husband’s alimony obligations on the condition that
he provide weekly updates to the Wife of his “disability and other income” and
“monthly bank account statements showing all sources of income.” Only when
his disability benefits end will the Husband begin paying the Wife the $3,000
monthly alimony obligation. On this record, the trial court did not err by
ordering that he resume alimony payments upon cessation of his short-term
disability payments without further hearing. See In the Matter of Dow & Dow,
170 N.H. 267, 269 (2017); In the Matter of Britton & Britton, 174 N.H. 702,
710 (2022).

Further, the Husband challenges the award of alimony to the Wife as
overlooking the marital lifestyle, her lack of meaningful effort to be self-
supporting, and his ability to pay given his obligation for making payments on
the property division. The trial court reviewed in detail the parties’ current
financial circumstances, the length and circumstances of their marriage, their
health, employment opportunities, and their ability to acquire future income
and assets. Based on its determination to impute income to the Wife, and its
review of the financial benefits available to the Husband, the court determined
that the Wife needs alimony and the Husband can pay. The trial court’s
decision was a sustainable exercise of its discretion. See Marsh v. Marsh, 123
N.H. 448, 450-51 (1983).

Similarly, the Husband challenges the ordering of “installment
payments” to the Wife for the property equalization payment when his ability to
pay is “substantially limited by his ongoing expenses, disability, lack of liquid
assets, and the ordered alimony amount.” The trial court ordered an
equalization payment of $178,318.61 to the Wife, payable by “a note bearing
interest . . . amortized over four (4) years.” The trial court specifically balanced
the Wife’s entitlement to be timely paid her share of the property settlement
against the Husband’s request that he be allowed to pay over time. We find no
error in the trial court’s decision. See In the Matter of Harvey & Harvey, 153

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N.H. 425, 436-37 (2006), overruled on other grounds by In the Matter of
Chamberlin & Chamberlin, 155 N.H. 13, 15-16 (2007).

Next, the Husband takes issue with the trial court’s failure “to reverse
the temporary orders and in failing to adjust or provide relief to him where the
original orders exceeded the court’s authority and exceeded his ability to pay
those expenses.” The Husband raised this issue in his first appeal. Merrill,
174 N.H. at 196. We remanded the issue to be considered together with the
property and alimony issues because the Husband’s temporary obligations
were considered in the overall equitable division of the marital estate. Id. at
201. The trial court acknowledged that the Husband did not pay a $7,500
advance to the Wife as ordered. Accordingly, it did not account for the
obligation in the overall property distribution on remand. Similarly, the trial
court determined that the pre-filing credit card debt assigned to the Husband
by the temporary order would remain a debt for which the Husband was
responsible. We find no error in the court’s treatment of the temporary orders.

The Husband also argues that the trial court “erred in its interpretation
of the effect of the support orders in effect during the pendency of the first
appeal, resulting in a confiscatory order.” We disagree. The trial court
explained that the initial “Final Decree” did not become operative due to the
Husband’s appeal, and therefore, the temporary orders remained in effect.
Pursuant to Family Division Rule 2.29(B)(1)(d), the trial court did not err in
determining that the temporary orders remained in effect during the pendency
of the first appeal. See Fam. Div. R. 2.29(B)(1)(d).

In addition, the Husband challenges the trial court’s denial of his Motion
for Sanctions, Contempt and/or Other Relief, without a hearing. He alleged
that the Wife falsely maintained a fault ground for divorce and withheld jewelry
awarded to the Husband. He also claims that the trial court erred by not
considering witness testimony from the parties’ son and another individual,
and erred in its award of attorney’s fees to the Wife. We have reviewed the
parties’ pleadings relevant to these issues, and the court’s orders thereon, and
determine that the record supports the trial court’s discretionary judgment to
rule on the pleadings without holding a hearing or taking witness testimony.
See In the Matter of Connor & Connor, 156 N.H. 28, 39 (2008) (trial court has
broad discretion in managing the proceedings before it).

Finally, the Husband also argues that the trial court erred by omitting
language from its order terminating alimony upon Wife’s remarriage,
cohabitation, or death. In its order on reconsideration, the trial court
explained that the alimony order was intended to require 72 monthly
payments. It declined to specify that the alimony terminates upon the death of
either spouse because, citing Stebbins v. Stebbins, 121 N.H. 1060, 1063
(1981), “alimony generally does not continue if one of the parties dies.” The

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trial court noted that the Wife recognized that her cohabitation could justify a
modification of alimony and it granted the Husband’s request that the Wife
promptly notify him if she begins cohabitating with a romantic partner or
remarries. Otherwise, the court declined to order the automatic cessation of
alimony in the event the Wife cohabitates or remarries. We find no error. See
In the Matter of Arvenitis & Arvenitis, 152 N.H. 653, 655 (2005); Bisig v. Bisig, 124 N.H. 372, 376 (1983).

To the extent that the Husband challenges the trial court’s orders on
additional grounds, including that they violated his constitutional right to due
process, we conclude that any such arguments are insufficiently developed, see
State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not warrant further
discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

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

Timothy A. Gudas,
Clerk

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