In the Matter of Keith Colado and Meagan Colado

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0571, In the Matter of Keith Colado and
Meagan Colado, the court on November 29, 2023, issued the
following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The petitioner, Keith Colado, appeals a bifurcated final
decree entered by the Circuit Court (Foley, R., approved by Hall, J.), dividing
the marital property in his divorce from the respondent, Meagan Colado. See
RSA 458:16-a (Supp. 2022). The petitioner argues that, in dividing the marital
property, the trial court erred by: (1) considering a period of approximately
three years, prior to the marriage, during which the parties cohabited; (2) not
crediting him for the amount of his down payment on a home that he brought
into the marriage (marital home), and for a separate amount by which he
asserts that he reduced the mortgage on the marital home prior to the
marriage; and (3) not further reducing the respondent’s share of the proceeds
from the sale of the marital home by amounts that the petitioner contends the
respondent diminished the marital home’s value. The petitioner additionally
argues that the trial court erred by not finding the respondent in contempt,
and not awarding him attorney’s fees, for the respondent’s alleged failures to
notify him of certain pleadings and exhibits she had filed. We affirm.

We first address the petitioner’s arguments concerning the division of the
marital property. The trial court has broad discretion in fashioning a final
decree of divorce. In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014).
The trial court’s discretion includes decisions concerning property distribution.
Id. We will not overturn the trial court’s rulings on such matters absent an
unsustainable exercise of discretion, and we review the record only to
determine whether it contains an objective basis to sustain the trial court’s
discretionary judgments. Id. If the trial court could reasonably have reached
its findings on the evidence before it, they will stand. Id. We defer to the trial
court’s judgment in resolving conflicts in testimony, evaluating the credibility of
the witnesses, and determining the weight of the evidence presented, mindful
that the trial court may accept or reject, in whole or in part, the testimony of
any witness, and is not required to believe even uncontested testimony. In the
Matter of Aube & Aube, 158 N.H. 459, 465-66 (2009).

RSA 458:16-a, II requires the trial court to divide marital property in a
manner that is equitable. See In the Matter of Sarvela & Sarvela, 154 N.H.
426, 431 (2006). Marital property subject to equitable division includes “all
tangible and intangible property and assets, real or personal, belonging to
either or both parties” at the time of the final decree, regardless of “whether
title to the property is held in the name of either or both parties,” or whether
the property was acquired during the marriage or brought into it. RSA 458:16-
a, I; see In the Matter of Cohen & Richards, 172 N.H. 78, 83 (2019); Sarvela,
154 N.H. at 431.

The trial court is required to presume that an equal division of marital
property is equitable unless it determines, after considering one or more
statutory factors, that an equal division would not be equitable or appropriate.
RSA 458:16-a, II; Sarvela, 154 N.H. at 431. The trial court need not consider
all of the enumerated factors or give them equal weight, and is not required to
divide the property by some mechanical formula, but in a manner it deems just
based upon the evidence presented and the equities of the case. Sarvela, 154
N.H. at 431. The factors that the trial court may consider include the
“duration of the marriage,” the “value of any property acquired prior to the
marriage,” the “value of any property acquired by gift, devise, or descent,” and
“[a]ny other factor that the court deems relevant.” RSA 458:16-a, II(a), (m), (n),
and (o). Although premarital cohabitation is not within the “duration of the
marriage,” 458:16-a, II(a), we have held that the trial court may properly
consider it as a “factor that the court deems relevant” for purposes of RSA
458:16-a, II(o). In the Matter of Munson & Beal, 169 N.H. 274, 281 (2016).

In this case, the trial court found, and evidence in the record supports,
that the parties began cohabiting around March 2008. The petitioner had
purchased the marital home with his father in 2007 because he lacked
sufficient credit to acquire the property on his own, and had contributed the
$97,031 down payment from his own funds. The petitioner and his father
refinanced the marital home in 2009, reducing the original mortgage balance of
$118,787 to $83,964. The parties married on August 27, 2011, and resided in
the marital home throughout the marriage. The petitioner was incarcerated in
Massachusetts from 2016 to 2017, and in New Hampshire State Prison from
2018 through March 2021. The petitioner filed for divorce in May 2020. In
August 2020, while the petitioner was still incarcerated, and while the divorce
was pending, he sold the marital home, receiving $187,202 in net proceeds.

In addition to the marital home, the petitioner was the sole beneficiary of
a trust established by his father, containing certain investments that, at the
time of his father’s death in February 2021, were worth nearly $400,000. Upon
his father’s death, the trust terminated, and the property held by the trust
transferred to the petitioner. Following the death of his father, the petitioner
also inherited, through his father’s estate, his father’s home, which was not
encumbered by a mortgage. The petitioner testified that he thought that
property had a value of approximately $250,000 to $300,000.

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 The trial court held a final hearing on July 18, 2022, and issued its
decree on August 3, 2022. At trial, the respondent disclaimed any interest in
either the trust property or the real property that the petitioner had inherited
from his father. Instead, she sought only half of the sale proceeds from the
marital home, testifying that she “put money into the house,” that she “did live
there for 13 years,” that she “physically did work on that house,” that she
“financially did work on that house,” that she “did all of the landscaping,” and
that “it was a lot of work, a lot of money, and it was nice. It was absolutely
beautiful. And I put a lot of time into it.” The petitioner countered that the
respondent should not receive anything from the marital estate, claiming that
she diminished the value of the marital home such that it sold for far less than
it could have, and that, while he was incarcerated, she stole or damaged
personal property from him and his father, and set up fraudulent accounts in
his name. The respondent disputed that she had done anything to diminish
the value of the property, or that she had stolen or damaged anything from the
petitioner or his father.

The trial court ultimately awarded the respondent half of the $187,202
sale proceeds for the marital home, less $4,420 that the court found the
respondent had wrongfully kept after the Social Security Administration had
incorrectly paid such funds to the petitioner while he was incarcerated. The
trial court awarded the petitioner the remainder of the sale proceeds, as well as
all of the trust funds and real property received from his father following his
father’s death. In so ruling, the trial court found that “the length of the
marriage and its premarital equivalent . . . was approximately 12 years.” The
trial court additionally noted that it could not find, based on the evidence
before it, that the respondent was responsible for any diminution in the home’s
value or that she stole or damaged property of the petitioner or his father. The
court concluded that “fairness and equity” entitled the respondent to share the
net proceeds from the sale of the marital home, with the $4,420 adjustment.

On appeal, the petitioner first argues that the trial court erred by taking
into account the three-year period of time during which the parties cohabited
prior to their marriage. We note that, even without the period of cohabitation,
the length of the parties’ marriage ― which began on August 27, 2011 and
ended by final decree dated August 3, 2022 ― could be deemed “long term.”
See Sarvela, 154 N.H. at 431 (observing that a “marriage of only one or two
years may be considered differently than a long-term marriage of ten . . . years”
(quotation omitted)). Nevertheless, as noted above, we have explicitly held that
a trial court may consider a period of premarital cohabitation in dividing
marital property under RSA 458:16-a, II. Munson & Beal, 169 N.H. at 281.
Here, the respondent expressly testified that she had lived in the marital home
for many years, including the three years that the parties cohabited, and that
she had invested her time, labor, and money into the home. Under these

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circumstances, the trial court did not unsustainably exercise its discretion by
considering the parties’ premarital cohabitation.

The petitioner next argues that the trial court erred by not crediting him
with the $97,031 down payment that he made on the marital home in 2007, or
the amount by which he reduced the mortgage when he refinanced the
property in 2009. As noted above, however, the respondent expressly testified
that she had lived in the marital home for many years, and that she had
invested her own time, labor, and money into the home. We note that several
of the years that the respondent testified that she had cared for the home
included time that the petitioner was incarcerated and, thus, unavailable to
take care of it. We note further that the respondent disclaimed any interest in
the marital property that the petitioner had acquired upon the passing of his
father, which was worth, according to the petitioner, between $650,000 and
$700,000. On this record, we cannot conclude that the trial court
unsustainably exercised its discretion by not awarding the petitioner a $97,031
credit for his down payment on the marital home or a credit for the amount in
mortgage indebtedness that he saved by refinancing.

The petitioner next argues that the trial court erred by not reducing the
respondent’s share in proceeds from the sale of the marital home by amounts
that he contends the respondent diminished the marital home’s value. There
was, however, conflicting testimony on these points. Moreover, even if the
testimony on these points was uncontested, the trial court was not required to
credit it. See Aube, 158 N.H. at 465-66. On this record, we cannot conclude
that the trial court unsustainably exercised its discretion by not reducing the
respondent’s share of the proceeds from the sale of the marital home by
amounts that the petitioner claims the respondent diminished the marital
home’s value.

Finally, the petitioner argues that the trial court erred by not granting
certain motions for contempt that he had filed. The trial court’s contempt
power is discretionary. In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 138
(2020). The proper inquiry is not whether we would have found the respondent
in contempt, but whether the trial court unsustainably exercised its discretion
by not doing so. Id.

In this case, the petitioner filed two contempt motions, one on April 27,
2022, and one on May 2, 2022, asserting, inter alia, that the respondent had
filed certain pleadings, exhibits, and a financial affidavit without serving copies
upon him, that she had not picked up a copy of the divorce petition at the
courthouse or otherwise made herself available for service of process, and that
she had filed her own divorce petition in a different circuit court location. The
trial court deferred ruling on the motions until the July 18, 2022 final hearing.

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 At the start of the July 18, 2022 final hearing, counsel for the petitioner
asked the trial court whether it preferred to address the contempt issue “first
or after.” The trial court responded that it would prefer to address the
contempt issue “along the way.” At no point thereafter during the hearing,
however, did the petitioner offer evidence or argument relative to the contempt
issues. In the absence of evidence to support the motions, we cannot conclude
that the trial court unsustainably exercised its discretion by not granting the
motions and requests for attorney’s fees.

Affirmed.

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

Timothy A. Gudas,
Clerk

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