In the Matter of LeGault & LeGault

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Manchester Family Division
Case No. 2024-0051
Citation: In the Matter of LeGault & LeGault, 2025 N.H. 24

IN THE MATTER OF CLAYTON LEGAULT, JR. AND LISA LEGAULT

Argued: March 6, 2025
Opinion Issued: May 29, 2025

Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief
and orally), for the petitioner.

Shaheen & Gordon, P.A., of Concord (Tracey Goyette Cote on the brief,
and Stephanie K. Annunziata orally), for the respondent.

COUNTWAY, J.

¶1 The respondent, Lisa LeGault (Wife), appeals a final divorce decree
issued by the Circuit Court (Manchester, J). Wife challenges the court’s failure
to award marital assets to her to offset a “premarital” portion of a defined
benefit pension plan in which the petitioner, Clayton LeGault, Jr. (Husband), is
vested. We vacate and remand.

¶2 The following facts were found by the trial court, are undisputed, or
relate the contents of documents in the record. Husband is employed by the
New Hampshire Department of Corrections and contributes to a defined benefit
pension plan through the New Hampshire Retirement System. See Am. Fed’n
of Teachers — N.H. v. State of N.H., 167 N.H. 294, 297 (2015) (noting that the
New Hampshire Retirement System “is a contributory, public employee,
defined-benefit pension plan”). Prior to the parties’ marriage on April 22, 2005,
Husband had been contributing toward his pension for six years. Husband
also participates in the State of New Hampshire Public Employees Deferred
Compensation Plan. Wife has been contributing to a 401(k) plan through her
employer since 1995.

¶3 The parties separated in May 2022, and a petition and cross-petition
for divorce followed. Wife proposed a division of marital assets which, among
other things, would award her 100% of both her 401(k) and Husband’s deferred
compensation plan. It would also award her 50% of the “marital portion” of
Husband’s pension, calculated using the formula we announced in Hodgins v.
Hodgins, 126 N.H. 711 (1985), and would award Husband “the remaining
balance in the account, including the premarital portion of the pension, free
and clear of any right, title, or interest of [Wife].” Wife “explained that she is
not seeking any part of [Husband’s] premarital pension specifically, but that
she is seeking an ‘offset’ of other assets, which includes but is not limited to
100% of [Husband’s] Deferred Compensation Plan, and a cash settlement of
$75,000.00.”

¶4 Wife’s expert witness calculated values for both the “marital” and
“premarital” portions of Husband’s pension and “concluded that approximately
74% of the pension was earned during the parties’ marriage.” In her trial
memorandum, Wife argued that because Husband had not yet retired and “the
pension has such significant value that it cannot be offset with other assets in
the marital estate,” use of a formula to divide the pension was necessary. Wife
proposed an initial division in accordance with our decision in Hodgins. In
that case, we: (1) approved the use of “a decree providing that upon maturity of
the pension rights the recipient pay a portion of each payment received to his
or her former spouse,” Hodgins, 126 N.H. at 715-16 (quotation omitted); and
(2) established “a formula for equitably apportioning pension benefits when the
actual and contingent values are unascertainable,” In the Matter of Sutton &
Sutton, 148 N.H. 676, 680-81 (2002).

¶5 Wife contended, however, that limiting division of Husband’s
pension to an application of the Hodgins formula in this case “results in
dividing only the portion of the benefit that was earned during the marriage,
and awarding [Husband] the benefits that were earned prior to the marriage.”
She further argued that because RSA 458:16-a, I, which was enacted after
Hodgins, provides that all property acquired prior to the marriage is subject to
distribution, “[a]pplication of the Hodgins formula to exclude the premarital
portion of [Husband’s pension] from consideration in the equitable distribution

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of assets would directly conflict with . . . RSA 458:16-a, I, and would result in a
disproportionate and inequitable award to [Husband].”

¶6 The court issued a narrative order and final decree on November 7,
2023. It divided Wife’s 401(k) and Husband’s deferred compensation plan
equally between the parties and divided Husband’s pension according to the
Hodgins formula. It also adopted Wife’s proposal with respect to designation of
Wife as the 100% beneficiary of the 50% survivor option benefit in Husband’s
pension and assignment of pre-retirement death benefits should Husband
predecease Wife prior to commencing receipt of his pension benefits. The court
explained:

[Wife’s] arguments about the incompatibility of Hodgins and the
intent of RSA 458:16-a are well-reasoned and well-founded.
However, this Court is bound to follow precedent that has not been
overruled. The conflict between [the] statute and its application in
case law is not so clear that the Court considers Hodgins to have
been superseded on this point. Because [Wife] has not directed the
Court to binding precedent that separates a defined benefit plan
into its marital portion (divided pursuant to Hodgins) and also a
pre-marital portion that must be divided or offset by other marital
assets, the Court is not persuaded.

(Citations omitted.) This appeal followed.

¶7 On appeal, Wife presents two issues for review: (1) whether the trial
court erred in excluding the premarital portion of Husband’s pension from the
marital estate; and (2) to the extent Hodgins has been interpreted to exclude
the premarital portion of a pension from the property subject to equitable
division, whether RSA 458:16-a, I, “abrogate[s] or derogate[s] the Hodgins
decision.”

¶8 Before addressing Wife’s arguments, we examine Hodgins and RSA
458:16-a. In Hodgins, the husband had a fully-vested pension but had not yet
retired. Hodgins, 126 N.H. at 713. His pension was based on his employment
that began after the parties were married; no portion was earned prior to the
parties’ marriage. Id. We recognized that “when retirement benefits do not
have value realizable after the husband’s death, the ability of the trial court to
allocate them in an equitable division of property is most difficult.” Id. at 715
(quotation omitted). We remanded for the trial court to “ascertain the actual
and contingent values for Mr. Hodgins’s pension,” if possible. Id. at 715. We
then stated, however, that if “the nature of [the] pension will make it impossible
to compute the foregoing amounts in any meaningful way,” the decree could
direct that, upon maturity of the pension benefit, Mr. Hodgins pay Mrs.
Hodgins a portion of each benefit payable to him. Id. at 715-16.

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 [¶9] We further stated:

Such a decree must take account of the fact that only those
pension benefits which are attributable to the retiree’s employment
during the marriage are subject to distribution.

Assuming arguendo that, on remand, the trial court were to
find such a decree appropriate in this case, and similarly assuming
that an equal distribution were to be called for, the decree would
direct Mr. Hodgins, upon commencement of his pension benefits,
thereafter to pay for Mrs. Hodgins one-half of a percentage of each
benefit payable to him, less taxes. The percentage would be derived
by dividing the number of months Mr. Hodgins was employed,
during the marriage and prior to commencement of the divorce
proceedings, by the total number of months of credits he will have
earned toward his pension as of the date benefits commence.

Id. at 716 (citations omitted).

¶10 After Hodgins was decided, the legislature enacted RSA 458:16-a,
which, for the first time, statutorily defined property subject to equitable
division in a New Hampshire divorce action. See Blanchard v. Blanchard, 133
N.H. 427, 430 (1990); Laws 1987, 278:1. Paragraph I of that statute provides:

Property 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. Intangible property includes, but is not limited to,
employment benefits, vested and non-vested pension or other
retirement benefits, or savings plans. To the extent permitted by
federal law, property shall include military retirement and
veterans’ disability benefits.

RSA 458:16-a, I (2018).

¶11 Thereafter, we directed courts to employ a two-step analysis in
equitably dividing the property of divorcing parties. See In the Matter of
Routhier & Routhier, 175 N.H. 6, 11 (2022). “First, the court determines, as a
matter of law, which assets constitute marital property under RSA 458:16-a, I.
Then, the court exercises its discretion to equitably distribute those assets
pursuant to RSA 458:16-a, II.” Id. at 11-12 (citation omitted). “Trial court
determinations under RSA 458:16-a, I, are reviewed de novo, while equitable
divisions of property pursuant to RSA 458:16-a, II are reviewed for an
unsustainable exercise of discretion.” In the Matter of Chamberlin &
Chamberlin, 155 N.H. 13, 16 (2007).

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 [¶12] Wife argues that the clear and unambiguous language of RSA
458:16-a “does not permit an interpretation that excludes the premarital
portion of a pension from the definition of marital property.” We agree. “RSA
458:16-a, I, makes no distinction between property brought to the marriage by
the parties and that acquired during marriage . . . .” In the Matter of Crowe &
Crowe, 148 N.H. 218, 222 (2002). While the court, in its discretion, may
“consider when and by whom property was acquired in determining its
distribution,” In the Matter of Sarvela & Sarvela, 154 N.H. 426, 431 (2006), “all
property of the parties is subject to distribution, provided that it was acquired
up to the date of a decree of legal separation or divorce,” In the Matter of
Preston & Preston, 147 N.H. 48, 50 (2001).

¶13 We now consider whether RSA 458:16-a, I, overrules or abrogates
Hodgins. We conclude that it does not, but we now clarify the limitations on
the Hodgins formula’s applicability. In Hodgins we held, consistently with RSA
458:16-a, I, that “an unmatured pension, particularly when it is fully vested, is
an asset that should be considered in any equitable property distribution.”
Hodgins, 126 N.H. at 715. We were tasked in Hodgins with determining a
method to equitably apportion a pension benefit that had no portion earned
prior to marriage but toward which the employee would continue to earn credit
after divorce. See id. at 713. We therefore noted that a decree providing for
distribution to the wife of a portion of each benefit payable to the husband at
maturity of the pension benefit “must take account of the fact that only those
pension benefits which are attributable to the retiree’s employment during the
marriage are subject to distribution.” Id. at 716. We have repeated that
statement in subsequent decisions. We have not, however, addressed whether
or how Hodgins should apply when some portion of a pension has been earned
prior to marriage. See, e.g., Sutton, 148 N.H. at 677 (noting that parties
married in 1970 and, as of 1981, husband had a defined benefit pension
through employment); Rothbart v. Rothbart, 141 N.H. 71, 73 (1996) (noting
that parties had been married twenty-three years and that husband had been
employed almost fourteen years with his current employer, through which he
had a vested pension). But cf., In the Matter of Costa & Costa, 156 N.H. 323,
325, 330-31 (2007) (vacating division of husband’s retirement benefits in case
where husband’s employment began in 1987 and the parties married in 1992,
and remanding with instruction that if “buyout is not a feasible option . . . the
trial court should enter a decree . . . per Hodgins”).

¶14 We now clarify that Hodgins continues to provide the default rule
for cases where, as in Hodgins, no portion of the pension was earned prior to
marriage. See Rothbart, 141 N.H. at 76 (describing Hodgins as a “default
formula”). However, because the issue was not before us in Hodgins, that case
does not address how to apportion pension benefits when some portion of
those benefits was earned prior to marriage. See Hodgins, 126 N.H. at 713.

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 [¶15] Wife argues that in this case, the trial court erred by “failing to
include the premarital portion of [Husband’s] pension benefits in the marital
estate.” It is unclear from the narrative order, however, whether the trial court
erroneously interpreted Hodgins to require exclusion of the premarital portion
of Husband’s pension, or whether the court used the Hodgins formula to
apportion the marital portion, as both parties asked the court to do, and then,
as it had the discretion to do, awarded the entire premarital portion to
Husband, without offset, as part of an overall equitable division. See Routhier,
175 N.H. at 11. While, on the one hand, the order suggests that the court may
have believed it lacked authority to divide the premarital portion or to offset it
with other assets, on the other, the order states:

The Court finds this distribution to be the most equitable
considering the parties’ assets and the length of the marriage.
Although the premarital portion of [Husband’s] pension has not
been separately divided, [Wife] is moving forward with a significant
portion of the marital estate, including retirement assets of her
own and half of the marital portion of [Husband’s] pension.

¶16 Because we cannot determine from the trial court’s order which of
these alternatives formed the basis for its property division, we vacate and
remand for further proceedings consistent with this opinion.

Vacated and remanded.

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

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