In the Matter of Connie Murabito and Mark Murabito

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0572, In the Matter of Connie Murabito
and Mark Murabito, the court on October 10, 2024, 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 respondent, Mark Murabito (husband), appeals the final decree of
the Circuit Court (Steckowych, J.), issued following a hearing, in his divorce from
the petitioner, Connie Murabito (wife). He argues that the trial court erred in
finding that the marital home is marital property subject to equitable division, in
awarding the wife half its value, and in valuing the home. See RSA 458:16-a
(Supp. 2023). We affirm.

We first address the husband’s argument that the trial court erred in
finding that the marital home is marital property subject to equitable division
and awarding the wife half its value. Although the trial court awarded the home
to the husband, he nonetheless argues that the court erred because “the home
was owned by a real estate trust prior to the parties’ marriage and the [wife]
waived any interest in the trust property.” He also contends that the trial court
erroneously failed to consider certain statutory factors set forth in RSA 458:16-a,
II. We disagree.

“We review a trial court’s determination of what assets constitute marital
property de novo.” In the Matter of Merrill & Merrill, 174 N.H. 195, 197 (2021).
Marital property includes “all tangible and intangible property and assets, real or
personal, belonging to either or both parties, whether title to the property is held
in the name of either or both parties.” RSA 458:16-a, I. The statute “makes no
distinction between property brought to the marriage by the parties and that
acquired during marriage.” In the Matter of Sarvela & Sarvela, 154 N.H. 426,
431 (2006). Regardless of the source, all property owned by each spouse at the
time of divorce is included in the marital estate, and is subject to equitable
division. Id.; Merrill, 174 N.H. at 197.

Once the trial court has determined which assets constitute marital
property, the trial court is afforded broad discretion in determining the equitable
distribution of those assets. See In the Matter of Geraghty & Geraghty, 169 N.H.
404, 417 (2016); In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 16
(2007). “[M]arital property is not to be divided by some mechanical formula[,] but
in a manner deemed just based upon the evidence presented and the equities of
the case.” Geraghty, 169 N.H. at 417 (quotation omitted). “[A]n equal division of
property is presumed equitable unless the trial court decides otherwise after
considering one or more of the factors designated in the statute.” Id. (quotation
omitted). “We will not overturn a trial court’s decision on these matters absent
an unsustainable exercise of discretion or an error of law.” Id. (quotation
omitted).

At the outset, we note that we disagree with the husband that the trial
court erred by failing to consider certain statutory factors set forth in RSA
458:16-a, II. Although the trial court did not specifically cite each factor, a review
of the court’s detailed narrative orders amply demonstrates that the court
considered all relevant factors in reaching its decision to award the marital home
to the husband and divide its value equally between the parties. In any event, it
is well-established that the court need not consider all of the enumerated factors
or give them equal weight. See, e.g., Geraghty, 169 N.H. at 417.

Next, in arguing that the marital home is not marital property subject to
division, the husband relies upon our decision in Chamberlin. In that case, we
determined that certain assets held in an irrevocable trust were properly
excluded from the marital estate, and, therefore, not subject to division, because
the assets in the trust were beyond the reach of the parties, neither of whom had
the right to invade the trust corpus. Chamberlin, 155 N.H. at 17. We reasoned
that “[i]f neither the settlor nor the settlor’s creditors may invade the corpus of an
irrevocable trust, it would be incongruous to count such a trust as a marital
asset, interchangeable with other assets upon which the parties freely may
draw.” Id. In this case, Chamberlin is inapposite. Here, by contrast, it is
undisputed that the marital home is held in a revocable trust, which, as the trial
court found, “[t]he husband can extinguish . . . at will, to his sole benefit,”
thereby “disregarding any contribution wife has made to its value over the many
years of their marriage.” Accordingly, we agree with the trial court that “[i]t
would be patently unfair for [the husband] to be able to keep the entire value of
the property to himself, based on the length of the marriage, and the extent of
wife’s contributions to the home.” Cf. In the Matter of Hampers & Hampers, 154
N.H. 275, 278, 285-86 (2006) (emphasizing statutory obligation to apportion
marital property equitably in awarding assets held in revocable trust).

Although the husband emphasizes that, in 1998, the wife signed a release
waiving her beneficial interest in the trust, the record demonstrates, among other
things, that the husband directed the wife to do so under circumstances related
to a scheme purportedly to shield the property from theoretical creditors;1 that
the wife received no consideration in exchange for releasing her interest; and that
she did not challenge the husband on this issue because she trusted that he was
trying to protect their home and she “just did what [she] was asked to do because

1 Notably, the husband granted a beneficial interest in the trust worth $120,000 to his former

lawyer, thereby actually creating just such a creditor.

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it was [in] the best interest of [their] family.” Moreover, the release was signed
more than 24 years before the parties separated. During that time, the wife
made numerous contributions to the marriage and to the marital home; her
father substantially contributed to an addition to the home as a gift to the
parties; and the husband repeatedly assured her that it would always be their
home and that she would always be able to live there.

On these facts, the trial court could reasonably have disregarded the
release purporting to waive the wife’s beneficial interest in the trust. Cf. Estate of
Wilber, 165 N.H. 246, 251-52 (2013) (holding that postnuptial agreements may
be invalid in situations involving fraud, duress, mistake, misrepresentation,
nondisclosure, unconscionability, or changed circumstances, and explaining that
the fiduciary nature of a marital relationship requires parties to “exercise the
highest degree of good faith, candor and sincerity in all matters bearing on the
terms and execution of the proposed agreement, with fairness being the ultimate
measure” (quotation omitted)). For these reasons, as well as those cited by the
trial court in its detailed order, we conclude that the trial court did not err in
determining that the marital home is a marital asset subject to equitable division,
and that the court sustainably exercised its discretion in awarding the home to
the husband and half of its value to the wife.

Lastly, we address the husband’s argument that the trial court erred in
valuing the marital home. “[W]hile determining whether or not a particular asset
is marital property under the statute is normally a question of law, determining
the value of any given asset is left to the sound discretion of the trial court.”
Chamberlin, 155 N.H. at 16. Here, the trial court accepted the valuation of the
home proffered by the wife’s expert. Although the husband advances several
arguments challenging the expert’s opinion, we note that he specifically
disclaimed any objection to the opinion’s admissibility, and “[w]e defer to the trial
court’s judgment on such issues as resolving conflicts in the testimony,
measuring the credibility of witnesses, and determining the weight to be given
evidence.” Geraghty, 169 N.H. at 416 (quotation omitted). The trial court may
accept or reject, in whole or in part, such portions of the evidence as it finds
proper, including that of expert witnesses, and is not required to believe even
uncontroverted evidence. Id.; Appeal of Pennichuck Water Works, 160 N.H. 18,
41 (2010). Accordingly, we conclude that the trial court did not unsustainably
exercise its discretion in valuing the marital home.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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