In the Matter of Whitehead & Whitehead

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Nashua Family Division
Case No. 2024-0155
Citation: In the Matter of Whitehead & Whitehead, 2026 N.H. 13

IN THE MATTER OF KERRI WHITEHEAD AND MICHAEL WHITEHEAD

Argued: September 30, 2025
Opinion Issued: April 2, 2026

Atwood & Cherny, P.C., of Newton, Massachusetts (Mary Beth Sweeney
on the brief and orally), for the petitioner.

Shaheen & Gordon, P.A., of Nashua (Andrew J. Piela on the brief and
orally), for the respondent.

DONOVAN, J.

¶1 The respondent, Michael Whitehead (Husband), appeals a final
divorce decree issued by the Circuit Court (Curran, J.). Husband challenges
the trial court’s award of a portion of his Canadian structured settlement
annuity payments to the petitioner, Kerri Whitehead (Wife), and its denial of his
request for alimony.

¶2 We conclude that the trial court properly applied New Hampshire,
rather than Ontario, law in ruling that Husband’s annuity payments were

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divisible property. However, the court erred when it denied Husband alimony
by failing to consider the effect of the annuity’s division on the parties’ income
or the impact that Husband’s health needs may have on his earning capacity.
Accordingly, we affirm in part, vacate in part, and remand.

I. Facts

¶3 The following facts were found by the trial court or are otherwise
supported by the record. In 1999, while living in Ontario, Canada, Husband
suffered a spinal cord injury during a car accident there. The injury left him a
partial quadriplegic. Husband began playing wheelchair rugby for the
Canadian Paralympic team. While traveling for rugby, he met Wife in Maine,
and they married in 2004.

¶4 Before he met Wife, Husband filed two lawsuits related to the 1999
car accident. He settled the first lawsuit before the parties’ marriage and the
second several years after they wed. Rather than accepting lump sum
payments of the settlement proceeds, Husband negotiated a “structured
settlement,” under which he currently receives monthly payments from two
annuities.

¶5 The annuity established before the marriage (first annuity) provides
Husband with monthly payments that increase in connection with the
Consumer Price Index each year and continue for his lifetime. Husband
obtained this annuity in 2003, using settlement proceeds from the first lawsuit.
The annuity established in 2010 (second annuity), after the marriage, supplies
monthly payments that increase at a set rate yearly but end in 2035.1 A
Canadian insurer owns each annuity policy. The annuity contracts’ terms
provide that Husband’s only right is to receive payments and that he may not
sell the contracts or use them as collateral.

¶6 The parties moved to New Hampshire in 2014. In 2021, Wife
initiated divorce proceedings. She requested, among other things, an equitable
share of the annuities. Husband sought to preclude the division of the
annuities or to receive alimony to offset any division of the annuities.

¶7 Following a final hearing, the trial court issued a narrative order
and final decree. The court determined that because the first annuity vested
before the parties wed, equitable considerations counseled that Husband
should retain it in full. See RSA 458:16-a, I, II (2018 & Supp. 2024). By
contrast, the court awarded the parties equal shares of the second annuity.
See id. The parties appear to agree, and the record reflects, that the second
annuity’s monthly payments began at $3,452.02 Canadian dollars in 2010,

1 A third annuity, not at issue in this case, will begin monthly payments in 2035. Husband
secured this annuity in 2010. The trial court did not consider or divide the third annuity.

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and that these payments have increased yearly and will continue to do so until
they cease in 2035. In addition, the court denied both parties’ requests for
alimony.

¶8 Following the trial court’s order, both parties moved to reconsider.
As relevant to this appeal, Husband’s motion for reconsideration argued that
the court erred by: (1) dividing the second annuity between the parties,
because Ontario law would not classify the annuity as divisible property; and
(2) denying him alimony. The court denied these aspects of Husband’s motion
to reconsider. It also denied Wife’s motion.

¶9 This appeal followed. After oral argument, this court asked the
parties to submit supplemental briefing on the issue of whether Ontario or New
Hampshire law determines the second annuity’s status as divisible marital
property.

II. Analysis

A. Choice of Law Regarding Division of Second Annuity

¶10 On appeal, Husband first argues that the trial court erred by
applying New Hampshire, rather than Ontario, law to determine whether the
second annuity is property subject to equitable division at divorce. He posits
that Ontario law proscribes the division of personal injury settlement funds —
such as this annuity — at divorce. Because the parties agree that none of the
facts relevant to the choice-of-law issue are disputed, our review is de novo.
See In the Matter of Geraghty & Geraghty, 169 N.H. 404, 408 (2016).

¶11 Although “[t]his court has respected choice of law provisions” in
financial instruments, Flaherty v. Flaherty, 138 N.H. 337, 339 (1994), Husband
does not point to any choice-of-law term in the annuity contract expressly
favoring Ontario law. Cf. id. at 339-41 (considering whether Massachusetts
law allowed division at divorce of a spendthrift trust whose choice-of-law term
directed that Massachusetts law governed the trust’s administration). Rather,
he contends that Ontario law should determine the second annuity’s status as
divisible property because of Ontario’s interests in the annuity. In support of
this assertion, Husband argues that: (1) an Ontario insurer administers the
annuity; (2) the annuity forms part of Husband’s settlement of an Ontario
lawsuit that he filed while residing in that province; and (3) the underlying
injury occurred in Ontario.

¶12 “When New Hampshire is the forum for a suit in which one or more
other states also have an interest,” we must inquire into choice of law.2

2 We have previously applied our existing choice-of-law framework for conflicting state laws to
analyze a conflict between New Hampshire and Ontario law, as is presented here. See Lessard v.

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Bartlett v. Commerce Ins. Co., 167 N.H. 521, 526 (2015). In doing so, “we first
decide whether a relevant law is substantive or procedural.” Id. “[A]
substantive law creates, defines and regulates rights while a procedural law
prescribes the methods of enforcing such rights or obtaining redress.” In re
M.M., 174 N.H. 281, 289 (2021). The annuity payments’ classification as
marital property determines whether Wife may be awarded a portion of these
payments. See RSA 458:16-a, I, II. Thus, this question presents an issue of
substantive law.

¶13 When faced with a choice between conflicting substantive laws, we
have previously “conduct[ed] an analysis based upon five choice-of-law
influencing considerations.” Bartlett, 167 N.H. at 526; see Clark v. Clark, 107
N.H. 351, 353-55 (1966) (setting forth the five considerations). At our request,
the parties’ supplemental briefs applied the five “choice-influencing
considerations” that we adopted in Clark. Clark, 107 N.H. at 353.

¶14 As we recognized in Glowski v. Allstate Insurance Company,
however, our post-Clark decisions, “particularly in contract cases, have relied
upon the approach taken by the Restatement (Second) of Conflict of Laws.”
Glowski v. Allstate Ins. Co., 134 N.H. 196, 197-98 (1991). Under this
approach, “in the absence of an express choice of law validly made by the
parties, the contract is to be governed, both as to validity and performance, by
the law of the State with which the contract has its most significant
relationship.” Consolidated Mut. Cas. Co. v. Radio Foods Co., 108 N.H. 494,
496 (1968); see Restatement (Second) of Conflict of Laws § 188, at 575 (1971).
In bypassing the Clark test in contracts cases, we have reasoned that the
“choice-influencing considerations” do not “provide enough guidance to reach
the correct result.” Glowski, 134 N.H. at 198. Instead, the mechanical
analysis of the Second Restatement is more appropriate, particularly in
contracts cases, which focus, in part, on the predictability aspect of the Clark
test and the objective of giving effect to the parties’ intentions. See id.;
Consolidated Mut. Cas. Co., 108 N.H. at 496-97.

¶15 The issue before us concerns the parties’ marital relationship.
Specifically, Husband argues that Wife may not claim a right, arising from the
marriage, to a portion of the second annuity’s payments. This appeal does not
concern the insurer’s relationship with Husband under the annuity contract.
Indeed, the trial court’s divorce decree — which instructed “[c]ounsel and the
parties [to] work to effect this mandated division of the second annuity” — did
not, by its express terms, impose new obligations on the insurer. Rather, the
court’s order contemplated the possibility that Husband could direct a portion
of each annuity payment to Wife upon receipt from the insurer. Accordingly,
the subject of our choice-of-law inquiry is the parties’ marital contract, which
gives rise to Wife’s equitable claim to a portion of the annuity payments. See

Clark, 143 N.H. 555, 556-59 (1999).

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Black’s Law Dictionary 1160 (12th ed. 2024) (defining “marriage” as “[t]he legal
union of a couple as spouses,” the validity of which requires “parties legally
capable of contracting to marry”).

¶16 Our choice-of-law analysis in In the Matter of Geraghty & Geraghty,
another dissolution of marriage case, supports using the Second Restatement’s
approach here. See In the Matter of Geraghty & Geraghty, 169 N.H. at 408-10.
In that case, we assumed, without deciding, that Clark applied because the
parties did not challenge the trial court’s reliance on the test. Id. at 408. We
also recognized marriage as a kind of contract, however, by analyzing the
parties’ expectations when they wed under the Clark test’s “predictability of
results” factor. See id. at 409-10. This factor “is usually implicated only in
suits involving contractual or similar consensual transactions.” Id. at 409.

¶17 To determine whether New Hampshire or Ontario law governs the
annuity payments’ status as divisible marital property, we thus apply the
Second Restatement’s approach to the parties’ contract: their marriage
agreement. Under this approach, we consider whether New Hampshire or
Ontario has “the most significant relationship” with the marriage. Glowski,
134 N.H. at 198. The parties moved to New Hampshire in 2014 and built a
home in this state. During this time, they used the annuity to support the
family and considered it in long-term financial planning. Until Husband
indicated in 2020 that he wanted a divorce, the parties and their children lived
together in New Hampshire, subject to Husband’s absences for work-related
travel.

¶18 By contrast, despite Husband’s individual connection to the
province, Ontario has a minimal relationship to the parties’ marriage. The
parties did not wed in Ontario, nor did they live there together before or during
their marriage. Consequently, New Hampshire has a more significant
relationship with the parties’ marriage than Ontario.

¶19 Husband claims that because the parties married in Maine, they
could not have specifically expected New Hampshire law to control the
annuity’s division in the event of a divorce. Jurisdiction over a divorce is
governed by the place of filing, however, and in practice, the forum state’s law
generally controls equitable distribution issues. 24 Am. Jur. 2d Divorce and
Separation § 172 (2008); B. Turner, 1 Equitable Distribution of Property § 3:13,
Westlaw (4th ed., database updated Dec. 2025). Further, “[t]he essence of the
marriage contract is that the parties should engage to live with each other for
life.” Powell v. Powell, 97 N.H. 301, 302 (1952). Due to “the mobility of modern
life,” Potter v. Rosas, 111 N.H. 169, 171 (1971), relocating across state borders
is common. When they wed, the parties could therefore expect that certain
aspects of their marriage — including classification of their intangible property
if they divorced — would be subject to the laws of a future state of shared
residence. But cf. In the Matter of Geraghty & Geraghty, 169 N.H at 407, 409-

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10 (concluding, in the context of a fraud-based annulment petition, that parties
would expect the law of the state where they wed and lived at the marriage’s
outset to decide whether their marriage was valid at its inception).

¶20 On the other hand, the parties would not reasonably expect that
the law of a jurisdiction in which they had neither married nor resided together
would apply during their divorce proceeding. The fact that, when the parties
married, Husband had obtained one annuity owned by a Canadian insurer and
had a second lawsuit still pending in Ontario does not alter our conclusion.
Indeed, by the time he finished negotiating the second annuity’s terms in 2010
— several years into the parties’ marriage — Husband no longer lived full-time
in Ontario and had instead lived in multiple states with Wife. Applying a
foreign jurisdiction’s law to classify a personal injury settlement, due merely to
that jurisdiction’s connections with the insurer and the underlying lawsuit,
would inject uncertainty into New Hampshire divorce proceedings. This
concern countervails Husband’s argument that applying Ontario law would
promote uniformity of decisions by guaranteeing consistent treatment of
Canadian annuities.

¶21 Finally, contrary to Husband’s argument, Boucher v. Boucher is
inapposite. See Boucher v. Boucher, 131 N.H. 377 (1988). There, we held that
Vermont law should apply when deciding whether the parties had acquired an
equitable real property interest in a building in Vermont that was divisible in
their New Hampshire divorce proceeding. Id. at 378, 381-82. We reasoned
that applying Vermont law would “most likely serve the parties’ expectations”
because “the property is located in Vermont, and any money advanced served
to improve the Vermont property.” Id. at 381. We explained that “[t]he place
where the property is to be kept and used . . . is the place to whose law the
parties . . . would normally look.” Id. (quotation omitted). By definition, the
real property in Boucher would permanently “be kept and used” in Vermont.
Id. (quotation omitted). Here, in contrast, the annuity’s funds supported the
parties’ household in New Hampshire during much of their marriage. The
Canada-based insurer owning the annuity is merely a vehicle to distribute the
funds to Husband. Indeed, the choice-of-law determination in probate
proceedings follows a similar logic: a decedent’s “real property passes according
to the law of the state where it lies,” whereas “a decedent’s personal property
passes according to the law of the state of domicile.” In re Estate of Rubert,
139 N.H. 273, 276 (1994).

¶22 Thus, the trial court correctly applied New Hampshire law in
determining whether Husband’s annuity payments were divisible marital
property. In New Hampshire, a personal injury award or settlement obtained
by one spouse prior to divorce is divisible “regardless of the underlying purpose
of the award or the loss it is meant to replace.” In the Matter of Preston and
Preston, 147 N.H. 48, 49 (2001) (affirming the distribution at divorce of a
personal injury settlement annuity); see also RSA 458:16-a, I (providing that

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the property subject to division at divorce “include[s] 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”).
Accordingly, because Husband secured the second annuity before the parties
divorced, New Hampshire law deems it divisible.3 See In the Matter of Preston
and Preston, 147 N.H. at 49.

¶23 We thus affirm the court’s determination that the second annuity
constituted property subject to equitable division. See id.; RSA 458:16-a, I. As
Husband does not argue that the trial court inequitably divided the annuity, we
need not consider whether the court’s award of half of the second annuity to
Wife was a proper exercise of its discretion. See RSA 458:16-a, II.

B. Alimony

¶24 Next, Husband asserts that the trial court erroneously denied him
alimony, which he conditionally sought in the event the court awarded some of
his annuity payments to Wife. “The circuit court has broad discretion to
award alimony.” In the Matter of Routhier & Routhier, 175 N.H. at 15. “We
review the court’s alimony determination for an unsustainable exercise
of discretion, and we will uphold its factual findings unless they are
unsupported by the evidence.” Id. “We defer to the trial court’s judgment in
resolving conflicts in testimony, measuring the credibility of witnesses, and
determining the weight to be given to evidence.” In the Matter of Cohen &
Richards, 172 N.H. 78, 93 (2019). “In a contested proceeding, an order denying
alimony ‘shall include . . . [f]indings supporting the court’s decision to . . . deny
the requested alimony.’” In the Matter of Routhier & Routhier, 175 N.H. at 15
(quoting RSA 458:19-a, VI(b)(1) (2018)).

¶25 Husband first contends that, in rejecting his alimony request, the
court erred by not considering the reduction in his monthly income due to the
court’s award of half of the second annuity to Wife. “Alimony determinations
are based primarily upon the parties’ income and need.” Id. Where contested,
an award of term alimony requires a finding that:

(a) The party in need lacks sufficient income, property, or both,
including property apportioned in accordance with RSA 458:16-
a, to provide for his or her own reasonable needs, taking into
account the marital lifestyle and the extent to which the parties

3 Under RSA 458:16-a, I (2018 & Supp. 2024), the annuity contract’s restriction on Husband’s
ability to transfer his rights to annuity payments does not limit a court’s ability to classify the
annuity as divisible marital property. Cf. In the Matter of Earley & Earley, 174 N.H. 220, 223
(2021) (reversing trial court’s distribution, during divorce proceeding, of interest in trust with
spendthrift clause restraining any transfer of beneficiary’s interest, because relevant statute’s
plain text provided that interests in spendthrift trusts are not divisible marital property under RSA
458:16-a, I).

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must both fairly adjust their standards of living based on the
creation and maintenance of separate households; or

(b) The party in need is unable to be self -supporting at a standard
of living that meets reasonable needs through appropriate
employment . . . .

RSA 458:19-a, I (2018 & Supp. 2024). Regarding what constitutes “reasonable
needs” under RSA 458:19-a, I(a) and (b), we have clarified that “[t]he supported
spouse’s needs are not, however, limited to the barest necessities,” and an
alimony determination “should also take into account the standard of living
established during the marriage and the financial status of both plaintiff and
defendant.” In the Matter of Fowler and Fowler, 145 N.H. 516, 521 (2000)
(brackets omitted).

¶26 Husband conditionally requested $2,713 per month in alimony if
the trial court awarded Wife a portion of his annuities. Husband’s total
income, as reported to the trial court, amounted to $9,647.53 per month.4 Of
this figure, $5,353.90 came from payments from the first and second
annuities. The record does not establish how much of this money derived from
each annuity. Meanwhile, Wife’s reported monthly income was $8,755.

¶27 The second annuity’s division effectively reduced Husband’s
monthly income and commensurately increased Wife’s. The trial court did not
acknowledge the annuity’s division when considering the parties’ alimony
requests, however. Rather, the court stated only that — based on the parties’
incomes before accounting for the annuity’s division — the parties “enjoy a
high standard[] of living based on equally comfortable salaries.”

¶28 Wife observes that upon the second annuity’s division, Husband’s
net income should exceed his monthly expenses, based upon the numbers he
provided to the trial court. See RSA 458:19-a, I (stipulating that, where
alimony is contested, the court must find that the party requesting alimony
“lacks sufficient income, property, or both” to meet that party’s “reasonable
needs” or “is unable to be self-supporting”). As the trial court noted, however,
the parties “concur[red] that splitting their households [would] increase
respective costs.” Thus, given the conditional nature of Husband’s alimony
request and the court’s mandate to consider “the financial status of both

4 Wife contends that Husband has additional income the trial court likely did not consider,
because he testified that he receives travel and volunteer reimbursements that he did not disclose
in his financial affidavit provided to the court. However, “[r]eimbursements for business and
travel expenses by one’s professional association or employer should not be considered by the
court in determining one’s ability to pay alimony and child support” and “are not properly
considered as part of [one’s] net accession to wealth.” Thayer v. Thayer, 119 N.H. 871, 873 (1979),
superseded by statute on other grounds as stated by In the Matter of Clark & Clark, 154 N.H.
420, 425 (2006). Accordingly, Wife’s argument is without merit.

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plaintiff and defendant,” In the Matter of Fowler and Fowler, 145 N.H. at 521,
we conclude that the court unsustainably exercised its discretion by failing to
consider the second annuity’s division when assessing Husband’s need for
alimony. We therefore vacate the portion of the order denying Husband
alimony and remand for the court to make factual determinations regarding
the effect of the second annuity’s division on Husband’s ability to meet his
reasonable needs. See RSA 458:19-a, I(a), (b).

¶29 Husband also suggests that the trial court improperly disregarded
his testimony regarding the effect of his health needs on his earning potential.
He testified that because of shoulder pain, he planned to retire from the
Canadian Paralympic rugby team, which paid him a salary, following the 2024
Paris Paralympics. In addition, Husband testified that he would likely require
full-time nursing assistance as he aged, due to his quadriplegia. In its order,
however, the trial court stated that although Husband “points to anticipated
retirement after the 2024 Paralympics and speculates on the potential for
future ill health,” it “received no expert testimony on any of these aspects.” The
court found that “both parties are in peak earning years [and] in relatively
good-health.” It noted that if Husband suffered “poor health or other
downturn,” he could seek a modification of the alimony order. See RSA
458:19-aa (2018 & Supp. 2024) (discussing alimony modification).

¶30 Although the court discounted Husband’s description of his
intensifying medical needs as unsupported by expert testimony, we have
previously reversed a trial court’s alimony order due to the court’s failure to
account for the requesting party’s “health and restricted earning ability,” even
absent expert evidence. See Murphy v. Murphy, 116 N.H. 672, 674-75 (1976)
(reversing alimony order as “paltry and penurious” given wife’s testimony
regarding her gallbladder removal, other surgeries, and congenital kidney
ailment); see also Marsh v. Marsh, 123 N.H. 448, 451 (1983) (affirming alimony
award, over husband’s charge that it was excessive, where wife “testified that
. . . her present physical disabilities would prevent her from working on a full-
time basis in the future”). Further, we disagree with the trial court’s statement
that Husband’s ability to seek an alimony modification sufficiently accounts for
any medical concerns, because modification is the available remedy for “a
substantial and unforeseeable change of circumstances” occurring after an
alimony order’s issuance. See RSA 458:19-aa, I(a)(1) (emphasis added). Here,
Husband testified regarding his expected impending retirement and likely
healthcare needs. Thus, on remand, the trial court should consider any effect
that Husband’s health complications may have on his expenses or ability to
earn income.

¶31 Finally, Husband asserts that the trial court improperly speculated
that he could supplement his income through coaching, speaking, and other
activities. He argues that In the Matter of Nassar & Nassar, in which we held
that the trial court could not consider the husband’s potential to receive money

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from his parents in making its alimony determination, restricts a court’s ability
to speculate regarding parties’ future circumstances. See In the Matter of
Nassar & Nassar, 156 N.H. 769, 778-79 (2008). In that case, however, we
reasoned that gifts from others are unpredictable: a party’s “‘expectancy may
never be realized because of diminution of the donor’s wealth or a change in
the planned disposition of his property.’” Id. at 779 (quoting Rubin v. Rubin,
527 A.2d 1184, 1189-90 (Conn. 1987)). Here, by contrast, the court assessed
Husband’s own ability to seek remunerative opportunities due to his athletic
career. This assessment is exactly the type of inquiry courts must conduct
when evaluating alimony requests. See id. at 777 (“[T]he primary purpose of
alimony is rehabilitative. . . . Alimony should, therefore, generally be designed
to encourage the recipient to establish an independent source of income.”
(quotations omitted)). Accordingly, the court did not err by considering this
evidence, and it may do so again on remand.

III. Conclusion

¶32 In summary, we conclude that the trial court properly determined
that Husband’s second annuity was divisible property. We also conclude,
however, that the court erred by declining to consider the effect of the annuity’s
division on the parties’ income or Husband’s testimony regarding the impact of
his health on his earning capacity when it made its alimony determination. We
therefore affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.

Affirmed in part; vacated in part;
and remanded.

MACDONALD, C.J., and COUNTWAY and GOULD, JJ., concurred.