In re Estate of Pelton

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

5th Circuit Court-Newport Probate Division
Case No. 2023-0606
Citation: In re Estate of Pelton, 2024 N.H. 69

IN RE ESTATE OF ROGER LEE PELTON

Submitted: September 10, 2024
Opinion Issued: December 19, 2024

Tracy Shepherd, self-represented party, on the brief.

Bragdon, Baron & Kossayda, PC, of Keene (Elana S. Baron on the brief),
for the respondent.

PER CURIAM

¶1 Roger Lee Pelton died intestate. The respondent, Tina Burnham,
entered the estate case claiming to be a surviving spouse. The respondent was
married to the decedent, and they never divorced. She later purportedly
married Lincoln Burnham (Lincoln). Pointing to the respondent’s subsequent
purported marriage, the administrator of the Pelton estate, Tracy Shepherd,
argued that the surviving spouse statute, RSA chapter 560, barred the
respondent’s claim. Specifically, the administrator argued that the respondent
“abandoned” the decedent, see RSA 560:18 (2019), and that the decedent was
justifiably living apart from the respondent because she was “guilty of conduct
which constitutes cause for divorce.” See RSA 560:19 (2019). The Probate
Division of the Circuit Court (Hersh, J.) disagreed with the administrator. On
appeal, the administrator largely re-asserts the arguments made before the
trial court. We affirm in part, vacate in part, and remand.

I. Background

¶2 The trial court found or the record supports the following facts. In
October 2010, Pelton and the respondent were married in Maine. The two
decided to keep their marriage a secret. They lived together from 2008 to 2013.
In September 2013, the respondent purportedly married Lincoln at Pelton’s
home. After the purported marriage to Lincoln, the respondent moved out of
Pelton’s home and moved in with Lincoln. Pelton died intestate on December
13, 2022.

¶3 After Pelton’s death, the administrator, one of Pelton’s three
daughters, submitted his estate for probate. Believing that she was entitled to
a portion of his estate, the respondent filed a “New Case Participant
Information” form in the circuit court and entered the case as a “Surviving
Spouse.” The administrator filed a motion to estop the respondent from
inheriting from the estate as a surviving spouse. Following a hearing, the
circuit court denied the administrator’s motion. The administrator
unsuccessfully sought reconsideration. This appeal followed.

II. Analysis

¶4 RSA 561:1, I, grants a statutory share of the decedent’s estate to a
surviving spouse in the case of intestacy. When a decedent has “surviving
issue” “one or more of whom are not issue of the surviving spouse,” the
surviving spouse will receive “the first $100,000, plus 1/2 of the balance of the
intestate estate.” RSA 561:1, I(e) (Supp. 2023).

¶5 On appeal, the administrator asserts that the trial court erred in
applying RSA 560:18 and RSA 560:19. We address these arguments in turn.

¶6 Our standard for reviewing probate division decisions is set forth by
statute. See RSA 567-A:4 (2019). “The findings of fact of the judge of probate
are final unless they are so plainly erroneous that such findings could not be
reasonably made.” Id. Consequently, we will not disturb the probate division’s
decree unless it is unsupported by the evidence or plainly erroneous as a
matter of law. In re Estate of Dow, 174 N.H. 37, 41 (2021).

¶7 We first address the administrator’s argument that the trial court
erred by finding that the respondent did not “willingly abandon” Pelton. RSA
560:18 provides:

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 If a husband has willingly abandoned his wife and has absented
himself from her, or has willfully neglected to support her, or has
not been heard from, in consequence of his own neglect, for the term
of three years next preceding her death, he shall not be entitled to
any interest or portion in her estate, real or personal, except such
as she may have given to him in her will.

See also RSA 21:3 (2020) (“Gender-specific terms relating to the marital
relationship . . . including without limitation . . . “husband,” “wife,” . . . shall be
construed to be gender-neutral for all purposes throughout New Hampshire
law . . . .”); In re Guardianship of Madelyn B., 166 N.H. 453, 458 (2014)
(explaining that RSA 21:3 applies to all statutes “unless such construction
should be inconsistent with the manifest intent of the legislature or repugnant
to the context of the same statute”).

¶8 The trial court found that “the evidence supports the reasonable
inference that, for whatever reason, the decedent tacitly consented and/or
otherwise agreed with Respondent’s subsequent life choices.” The record
supports this finding. Thus, relying on Clark v. Clement, 71 N.H. 5 (1901), the
trial court determined that “[s]uch an arrangement vitiates a claim of
abandonment as it is defined in New Hampshire law.” The trial court’s
conclusion is correct.

¶9 The abandonment statute has remained unchanged since at least
1891. Compare RSA 560:18 with PS ch. 196 § 18 (1891). In Clark, we
interpreted the statute to conclude that an agreement between a husband and
wife to live apart did not constitute statutory abandonment. Clark, 71 N.H. at
6. We explained that merely “cohabitat[ing] with another woman . . . does not
as a matter of law make out a case of abandonment.” Id. Therefore, consent of
the other spouse defeats a claim of abandonment. Id. (“The issue . . . [is]
whether [the husband] abandoned his wife without her consent or approval.”);
see also Foote v. Nickerson, 70 N.H. 496, 518-19 (1900) (holding that the
statute did not apply to divest the husband’s spousal share when the husband
and decedent wife agreed to live apart prior to the decedent’s death).
Accordingly, the trial court’s conclusion regarding RSA 560:18 is not
unsupported by the evidence or plainly erroneous as a matter of law. See Dow,
174 N.H. at 41.

¶10 The administrator next argues that RSA 560:19 bars the
respondent from inheriting a surviving spousal share because she engaged in
“bigamy” and adultery. RSA 560:19 provides:

If, at the time of the death of either husband or wife, the decedent
was justifiably living apart from the surviving husband or wife
because such survivor was or had been guilty of conduct which

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 constitutes cause for divorce, such guilty survivor shall not be
entitled to any interest or portion in the real or personal estate of
said decedent, except such as may be given to such survivor by the
will of the deceased.

¶11 Adultery is conduct that constitutes cause for divorce; bigamy is
not. See RSA 458:7 (2018). For the purposes of analyzing RSA 560:19, the
trial court drew “the reasonable inference” that the respondent engaged in
adultery. However, the court found that the evidence supported that the
decedent “impliedly consented to the Respondent’s lifestyle choices.” The trial
court also concluded that because the decedent had not commenced an action
for divorce, it did not need to decide “whether sufficient grounds existed for the
Decedent to seek a divorce for cause.”

¶12 We have interpreted RSA 560:19 to require a different analysis. By
its plain language, the statute requires, in relevant part, a finding that the
“decedent was justifiably living apart [from the surviving spouse] because such
survivor was or had been guilty of conduct which constitutes cause for
divorce.” RSA 560:19. We have described the statute’s two conditions —
“justifiably living part” and “guilty conduct” — to be “interdependent conditions
which must exist at the time of death.” Gove v. Crosby, 98 N.H. 469, 472
(1954) (Gove I) (“[T]he decedent is required to have been living apart because
such a cause existed . . . indicating that some decision on the part of the
decedent is required.”). The burden is on the administrator to prove these two
conditions. Gove v. Crosby, 100 N.H. 380, 381 (1956) (Gove II). Only after
both conditions are satisfied does the analysis consider the claiming spouse’s
affirmative defenses, such as condonation. See Tibbetts v. Tibbetts, 109 N.H.
239, 241 (1968) (explaining that condonation is a “question of intent . . .
evidencing a full, free and voluntary forgiveness”). In the context of
interpreting RSA 560:19, we have stated that evidence of such an affirmative
defense must be “conclusive.” Gove I, 98 N.H. at 474.

¶13 The trial court made no finding with respect to RSA 560:19’s first
condition. On remand, it should. With respect to the second condition, we
agree that the evidence supports the trial court’s conclusion that the
respondent engaged in adultery. The trial court may then consider whether
there is “conclusive” evidence of an affirmative defense to adultery. See id.

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 [¶14] Accordingly, we vacate and remand to the trial court for
proceedings consistent with this opinion. We have considered the
administrator’s remaining argument and have concluded that it does not
warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed in part; vacated in part;
and remanded.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

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