In the Matter of Hilary Buonopane and John Waite

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0625, In the Matter of Hilary Buonopane
and John Waite, the court on October 2, 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). Because we have not considered documents in the
respondent’s brief and appendix that were not provided to the trial court, see
Flaherty v. Dixey, 158 N.H. 385, 387 (2009), we conclude that the petitioner’s
motion to strike is moot, see In re Guardianship of R.A., 155 N.H. 98, 100-101
(2007) (discussing mootness doctrine). The petitioner’s request for attorney’s
fees incurred in connection with the motion is denied.

The respondent, John Waite (husband), appeals the final decree of the
Circuit Court (Rauseo, J.), following a hearing, in his divorce from the
petitioner, Hilary Buonopane (wife). He argues that the trial court erred in:
(1) dividing the marital estate; (2) treating his North Carolina residence as a
marital asset; and (3) finding him to be in contempt of the court’s anti-
hypothecation order. We affirm.

The husband first argues that the trial court did not divide the marital
estate equitably. “In a divorce proceeding, marital 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.” In the Matter of Letendre &
Letendre, 149 N.H. 31, 35 (2002). We afford the trial court broad discretion in
determining matters of property distribution when fashioning a final divorce
decree. In the Matter of Sanborn & Bart, 174 N.H. 343, 353 (2021). We will
not overturn the trial court’s decision absent an unsustainable exercise of
discretion or an error of law. Id. If the court’s findings can reasonably be
made on the evidence, they will stand. In the Matter of Sanborn, 174 N.H. at
353.

Under RSA 458:16-a, II (2018), “an 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.” In the Matter of Silva &
Silva, 171 N.H. 1, 11 (2018) (quotation omitted). The trial court need not
consider all of the enumerated factors or give them equal weight. Id.
 The trial court found that the wife “contributed significantly” to the
parties’ relationship by taking responsibility “for the care of the house, grocery
shopping, payment of bills and the mortgage.” The court also noted that,
before the parties separated, the wife earned a higher income than the
husband. In addition, the court found that the wife received an inheritance of
approximately $30,000, which she used predominately for the parties’
expenses. The husband disputes these findings. We defer to a trial court’s
judgment on such issues as resolving conflicts in testimony, measuring the
credibility of witnesses, and determining the weight to be given evidence. In
the Matter of Aube & Aube, 158 N.H. 459, 465 (2009).

The husband also argues the court erred in treating the North Carolina
real estate as marital property, asserting that the court’s order is contrary to
North Carolina law. However, New Hampshire law governs this divorce,
including the definition and division of marital property. RSA 458:16-a, I
states that “[p]roperty shall include 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.” Marital property
includes any property acquired up to the date of a decree of legal separation or
divorce. In the Matter of Eckroate-Breagy & Breagy, 170 N.H. 247, 250 (2017);
see RSA 458:16-a, I, II.

The trial court found that the husband purchased the North Carolina
real estate with his first wife. The husband acquired title to the property before
the court entered its divorce decree in this case. The court found the fair
market value of the real estate to be $191,000, the parties’ indebtedness to be
$101,596.16, and their equity to be $89,403.16. After deducting $6,500 from
the equity figure to account for the higher value of the vehicle awarded to wife,
the court awarded her $41,451.58 for her share of the value of the marital
residence. The court ordered the husband to pay that amount to the wife
within 90 days, or the house will be sold, and the wife will receive her share of
the marital estate from the sale proceeds. The husband argues that the court
erred not only in awarding the wife an equal share of the equity in the real
estate, but also in requiring him to pay her for her share within 90 days.

Finally, the husband argues that the trial court erred in finding him to be
in contempt of the anti-hypothecation order. The contempt power is
discretionary, and the proper inquiry is whether the trial court unsustainably
exercised its discretion. In the Matter of Clark & Clark, 154 N.H. 420, 425
(2006). The court noted that its order clearly prohibited the parties from
transferring assets. The court found, and the record supports a finding, that
on July 17, 2023, while the divorce was pending, the husband transferred 2.8
acres of real estate to his mother for no consideration. The trial court awarded
the wife her attorney’s fees incurred in connection with the contempt.

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 Based upon our review of the briefs, the relevant law, the record on
appeal, and the trial court’s thorough and well-reasoned decision, we find the
husband’s arguments to be unpersuasive, and we affirm the trial court’s
decree.

Affirmed.

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

Timothy A. Gudas,
Clerk

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