Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Salem Family Division No. 2006-518 IN THE MATTER OF CHRISTINE COSTA AND MICHAEL L. COSTA Argued: April 17, 2007 Opinion Issued: October 18, 2007 Shanelaris & Schirch, PLLC, of Nashua (Jane M. Schirch on the brief and orally), for the petitioner. Linda A. Theroux, of Merrimack, by brief and orally, for the respondent. BRODERICK, C.J. The respondent, Michael L. Costa, appeals from the final divorce decree recommended by a Marital Master (DalPra, M.) and adopted by the Salem Family Division (Korbey, J.). He makes numerous claims of error with respect to the trial court's division of marital assets. We affirm in part, vacate in part, and remand. I The following facts were either found by the trial court or are supported by the record. The petitioner, Christine Costa, married the respondent in August 1992. They have two children, born in 1993 and 1999. The respondent has an associate's degree, and has been employed by the Massachusetts Water Resource Authority (MWRA) since 1987. The petitioner is not a college graduate, and was employed by various banks throughout the parties' marriage.

The parties separated in November 2004, and the petitioner filed for a fault-based divorce shortly thereafter. She alleged that her husband had committed adultery and treated her with "extreme cruelty." See RSA 458:7 (2004). However, after a four-day trial, the master "[did] not find . . . that adultery was the primary cause of the breakdown of the marriage." Rather, the master found it "abundantly clear" that the parties' "lack of communication and cooperation" had led to their separation. As a result, he recommended entry of a divorce on the ground of irreconcilable differences. See RSA 458:7-a (Supp. 2006). Despite declining to assign fault in the breakdown of the parties' marriage, the master recommended an unequal division of the parties' marital assets: The recommended property division shall result [in] a greater than equal portion of the marital estate awarded to the Petitioner for the following reasons: she shall be required to provide suitable housing for the children; the Respondent's ability to acquire capital assets is greater than the Petitioner's; [and] the Respondent's current and future earning capacity is greater than the Petitioner's. The master's support calculations reveal that at the time of the divorce, the petitioner earned $48,000 annually, while the respondent earned $70,800. The petitioner was awarded primary physical custody of the parties' children, while the respondent was ordered to pay $284 weekly in child support, or approximately $14,800 annually. The petitioner was awarded title to the marital home, valued at $300,000, but was required to assume sole responsibility for the mortgage on the property, which had an outstanding balance of $234,000. She was also ordered to discharge a $15,000 debt owed by the parties to her brother. The petitioner was awarded the parties' 2001 Toyota Camry, valued at approximately $10,000, but subject to a loan balance of approximately $3,700, for which she was solely responsible. The petitioner was also awarded one-half of the respondent's retirement savings account with the MWRA, "valued as of April 1, 2006." The master made no finding as to the account's actual value. The record reveals only that the respondent had accumulated $67,526.97 in his retirement account as of January 13, 2006. The respondent, who was forty-two years old at the time of trial, had funded his retirement account through mandatory weekly payroll deductions since 1987. The petitioner was ordered to prepare a qualified domestic relations order to effectuate a transfer of her ordered interest in the account's funds.

2

The master awarded the respondent a 1997 Toyota Tacoma, which his financial affidavit valued at $6,230. He was also awarded a 1968 GTO automobile which the master found to have "minimal value," as well as some sports memorabilia, a comic book collection, and a large-screen television. The petitioner retained all other furniture and personal property. Finally, the master awarded the parties "their respective checking and/or savings bank accounts . . . and the like . . . as shown on their individual financial affidavits filed with the court." On appeal, the respondent argues that the trial court erred when it: (1) awarded all the equity in the marital home to the petitioner; (2) ordered him to continue making weekly payments on the 2001 Toyota Camry for sixty days after entry of the final divorce decree, and until the petitioner refinanced the vehicle in her own name; (3) failed to award him certain items of personal property; (4) awarded one-half of his retirement savings account to the petitioner without utilizing the formula set forth by this court in Hodgins v. Hodgins, 126 N.H. 711, 715-16 (1985), superseded on other grounds by RSA 458:16-a, I (1992), and without addressing survivorship rights to the account; (5) ordered him to "become current" on all obligations imposed by temporary orders issued at the outset of the parties' divorce; and (6) failed to address the petitioner's alleged unauthorized depletion of a joint bank account after the parties' separation. We address each issue in turn. II The trial court is afforded broad discretion in determining matters of property distribution when fashioning a final divorce decree. In the Matter of Ramadan & Ramadan, 153 N.H. 226, 232 (2006). We will not overturn a trial court's decision on these matters absent an unsustainable exercise of discretion, id., or an error of law, In the Matter of Letendre & Letendre, 149 N.H. 31, 34 (2002). III The respondent first argues that the master erred by awarding "almost the entire marital estate" to the petitioner absent a finding of fault against him, "and without articulating any specific findings and rulings to justify such an order." He takes particular exception to the award of all the equity in the parties' marital home to the petitioner, along with two months' worth of payments on the Toyota Camry following entry of the final divorce decree, and all personal property not specifically disposed of by the decree. With regard to this last item, the respondent challenges the trial court's summary denial of his post-decree motion for reconsideration, which sought a revised award of personal items such as tools, pictures, and clothing left in the marital home.

3

"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." Letendre, 149 N.H. at 35. Under RSA 458:16-a, II (2004), 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. Id. "Under the statute, the court need not consider all factors or give them equal weight." In the Matter of Crowe & Crowe, 148 N.H. 218, 221 (2002). RSA 458:16-a, IV (2004), in turn, requires the trial court to "specify written reasons for the division of property which it orders." Initially, we disagree with the respondent's characterization of the master's award to the petitioner. Setting aside the proper division of the respondent's pension, which we address later, the record reveals that the petitioner received some $310,000 out of approximately $320,000 in divisible assets. Notably, however, the record also reveals that the petitioner was ordered to assume approximately $252,000 in debt that might otherwise have been assignable in whole or in part to the respondent. This debt allocation substantially reduced the value of the petitioner's award. Moreover, the master appropriately referenced several factors listed in RSA 458:16-a to support his decision. He cited the petitioner's need as the custodial parent to own and occupy the marital home, the respondent's historically higher income, and the respondent's greater ability to acquire capital assets. See RSA 458:16-a, II(b)-(e). Specifically, the master emphasized that the petitioner "is and always has been" the primary caretaker of the parties' children, and that the respondent had often neglected to take the children during his designated visitation periods. The master also noted the respondent's long-term employment with the MWRA. The petitioner, by contrast, had recently lost her job, had changed jobs several times throughout the parties' marriage, and lacked higher education, decreasing her chances of securing a better-paying position with comprehensive benefits. Given this record, we conclude that the master made sufficient findings to justify an unequal apportionment of the parties' marital assets favoring the petitioner. Accordingly, since "[a] trial court is not precluded from awarding a particular asset in its entirety to one party," Letendre, 149 N.H. at 36, we conclude that it was within the trial court's discretion to award the petitioner the equity in the parties' marital home. Furthermore, we find no error in the trial court's award of household items of apparently de minimus value to the petitioner, or in its extension of the respondent's obligation to make payments on the Toyota Camry for two months after entry of the final decree. We note the respondent's representation in his brief that fifty dollars continued to be deducted from his paycheck each week to pay for the Toyota Camry during the pendency of this appeal. On remand, the trial court shall

4

evaluate this claim, and credit the respondent for any payments made in excess of those mandated by the final decree. IV The respondent next asserts that the trial court erred because it failed to employ the Hodgins formula when dividing his retirement savings. See Hodgins, 126 N.H. at 715-16. He principally objects to the court's inclusion of his savings accrued prior to the parties' marriage, and after the petitioner filed for divorce, in its award. His arguments necessitate further analysis of the nature of the MWRA retirement system. The MWRA is a public entity, and its employees' retirement benefits are governed by Massachusetts law. See generally Mass. Gen. Laws Ann. ch. 32,

Download 2006-518, I/M/O of CHRISTINE COSTA AND MICHAEL COSTA.pdf

New Hampshire Law