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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 ___________________________ Hillsborough-southern judicial district No. 2009-309 IN THE MATTER OF THEODORE J. GOODLANDER AND ELIZABETH M. TAMPOSI Argued: September 8, 2010 Opinion Issued: February 25, 2011 Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief and orally), for the petitioner. Brennan, Caron, Lenehan & Iacopino, of Manchester (William E. Brennan and Jaye L. Rancourt on the brief, and Mr. Brennan orally), for the respondent. CONBOY, J. The petitioner, Theodore J. Goodlander, appeals the final divorce decree issued by the Superior Court (Nicolosi, J.), which awarded him alimony from the respondent, Elizabeth M. Tamposi, and a percentage of the marital property. He argues that the trial court erred by: (1) finding that postdivorce trust income that Tamposi may receive as a beneficiary of certain family trusts is not marital property; (2) retroactively applying the Uniform Trust Code (UTC), see RSA ch. 564-B (2007 & Supp. 2010); (3) using the wrong legal standard to calculate alimony; (4) awarding a near equal division of the parties' non-trust assets; (5) awarding Tamposi 1.6 million dollars from the sale

of a family trust's interest in the Boston Red Sox; and (6) allowing his adult children to intervene in the divorce action. We affirm in part, vacate in part, and remand. I. Facts The following facts are drawn from the record. The parties married on January 25, 1982. Together they have three adult children. Prior to the marriage, Tamposi worked for the Tamposi family business with her father, Samuel Tamposi, Sr., and her five siblings. Goodlander worked in the computer industry and was the owner of Cab Tech, Inc. (Cab Tech). During the course of the marriage, Goodlander formed two additional companies, Storage Computer Corporation (SCC), a publicly traded computer marketing and manufacturing company, and Kristiania Corp. (Kristiania), a real estate holding company. Ownership of the assets of Cab Tech, including all patents, was later transferred to SCC. Goodlander gave each of the parties' children a ten percent share in SCC, while he maintained a twenty-five to thirty percent ownership interest. Meanwhile, Tamposi left her position in the Tamposi family business in 1989 to serve as the Assistant Secretary of State for Consular Affairs in Washington D.C. In 1992, she ended her service in Washington D.C. and, other than some consulting work, has not since been employed outside the home. That same year, Samuel Tamposi, Sr., established two trusts as part of a comprehensive estate plan: the Samuel A. Tamposi, Sr. 1992 Trust, with amendments (SAT Trust); and the Samuel A. Tamposi, Sr. 1994 Irrevocable Trust. The trusts' assets are worth approximately 72 million dollars and consist primarily of real estate or entities that own and manage real estate. At issue in this case is the SAT Trust. Sub-trusts were created for the benefit of each sibling and his or her issue, to be funded by distributions from, and governed by the terms of, the SAT Trust. A spendthrift provision of the SAT Trust states that "[t]he interest of each beneficiary, and all payments of income or principal to be made to or for any beneficiary, shall be free from interference or control by any creditor or spouse (or divorced former spouse) of the beneficiary." Upon Samuel Tamposi, Sr.'s death in 1995, Tamposi and the parties' children became the beneficiaries of the Elizabeth Tamposi sub-trusts (collectively, the EMT Trust). Under the terms of the SAT Trust, each sub-trust, including the EMT Trust, has a trustee with the discretion to pay "such amounts from the net income and principal of the [sub-]trust and in such proportions among them as the trustee considers necessary for [a beneficiary's] education and maintenance in health and reasonable comfort." Tamposi and her children have been receiving distributions from the EMT Trust since 1995.

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In addition, Tamposi acquired certain minority interests in other real estate entities during the course of the marriage, hereinafter referred to as the "non-trust assets." The non-trust assets are valued at approximately $4,818,310. Income from the non-trust assets has been paid to Tamposi according to her ownership interest in these entities. Goodlander enjoyed success in his business endeavors during the first twenty years of the parties' marriage. However, beginning in 2003, the computer industry experienced a market decline and Goodlander's business endeavors began to fail. Goodlander made efforts to revive his businesses, including forfeiting his own salary. He has earned no income since 2003. By 2005, SCC stock had no value and was no longer publicly traded. In an attempt to maintain the financial solvency of SCC, Goodlander secretly withdrew, over a period of years, approximately $898,480 from his children's custodial accounts, for which he served as fiduciary and sole custodian. He also secretly withdrew $80,000 from Tamposi's personal bank account with the use of a power of attorney granted to him for an unrelated purpose. This money was lent to Kristiania, which lent it to SCC, in a failed attempt to salvage the company. In 2006, the parties separated and on May 16, 2007, Goodlander filed for divorce, citing irreconcilable differences. Although the parties' children originally intervened in this case in an attempt to protect their financial interests, they withdrew their petition on the first day of trial. On January 21, 2009, following a six-day hearing, a divorce was granted on the basis of irreconcilable differences. In its final decree, the trial court awarded Tamposi the parties' Gilford home, as well as 49% of the non-trust assets. Goodlander was awarded 51% of the non-trust assets. With respect to the EMT Trust, the trial court concluded that "future distributions or the anticipated stream of income [from the EMT Trust] are not a property interest subject to division, because under the terms of this trust, any distribution is `a mere expectancy.'" As a result, the trial court found that "Mr. Goodlander has no right to the corpus of the trusts, the remainder, or beneficial interest. Other than the alimony that is awarded, he has no right to any distribution from the SAT Trusts or the EMT Trust." As to alimony, the trial court concluded that under the provisions of the UTC, Tamposi could not force a distribution from the EMT Trust to accommodate an award of alimony unless it was to provide for "the most basic food, shelter and medical needs" of her former spouse. Goodlander was therefore awarded $50,000 per year in alimony to meet his "most basic needs," to be paid by the trustee of the EMT Trust to him directly. Goodlander appeals

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the final divorce decree on several grounds. We address each of his arguments in turn. II. Trust Distributions as Marital Property Goodlander first argues that the trial court erred in finding that any post-divorce distributions from the EMT Trust are not marital property subject to division. Specifically, he argues that Tamposi has a vested right in the SAT Trust and, therefore, he is entitled to a portion of the future distributions she receives through the EMT Trust. Therefore, he argues, the trial court erred in concluding that Tamposi's right to future distributions from the EMT Trust rises only to the level of a "mere expectancy." We disagree. "[T]he trial court first determines, as a matter of law, what assets are marital property under RSA 458:16-a, I, and thus subject to equitable distribution, and then exercises its discretion to make an equitable distribution of those assets." In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 16 (2007). "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." Id. Because Goodlander challenges the ruling that future distributions of the EMT Trust are not marital property, our review is de novo. "[Marital] [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." RSA 458:16-a, I (2004). Here, the parties do not dispute that the corpus of the SAT Trust is not marital property subject to division under the statute, as Tamposi has no right to invade the trust corpus. See Chamberlin, 155 N.H. at 17 ("If neither the settlor nor the settlor's creditors may invade the corpus of an irrevocable trust, it would be incongruous to count such a trust as a marital asset, interchangeable with other assets upon which the parties freely may draw."); see also RSA 564B:5-505 (a)(2). Nevertheless, Goodlander argues that because an independent trustee is authorized to make distributions from the EMT Trust to Tamposi for her "education, maintenance in health and reasonable comfort," she has a vested right to future distributions from the EMT Trust. In support of his argument, Goodlander cites Chamberlin, in which we concluded that "the marital interest subject to division is not the [trust corpus] itself but the parties' interest in the trust." Chamberlin, 155 N.H. at 18 (quotation and brackets omitted). While we agree that the parties' interest in the trust is paramount in determining whether the trust assets are marital property, we do not agree that Tamposi's interest in any future distributions of the EMT Trust constitutes more than a mere expectancy.

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"A perfect vested right can be no other than such as is not doubtful, or depending on any contingency, but absolute, fixed and certain." In the Matter of Goldman & Elliott, 151 N.H. 770, 774 (2005) (quotation omitted). [I]f a distribution to or for the benefit of a beneficiary is subject to the exercise of the trustee's discretion, whether or not the terms of a trust include a standard to guide the trustee in making distribution decisions, then the beneficiary's interest is neither a property interest nor an enforceable right, but a mere expectancy. RSA 564-B:8-814(b). Here, Tamposi's hope for a discretionary distribution from the EMT Trust is not a fixed, certain and absolute right. The terms of the SAT Trust state that all assets of the SAT Trust are to be controlled and managed by investment directors Samuel A. Tamposi, Jr. and Stephen A. Tamposi, Tamposi's brothers. The directors are given the powers of "management, control, handling, financing, refinancing and structuring of any and all real estate interests," as well as "full power and authority to direct the retention or sale of all other assets . . . included in the trust property." Each sub-trust, including the EMT Trust, is funded by distributions made from the SAT Trust by the investment directors. Testimony at the parties' divorce hearing indicated that certain funds generated from the SAT Trust assets are generally not reinvested; rather, the practice of the investment directors has been to distribute such funds to the sub-trusts once the balance of the "common account" of the SAT Trust reaches approximately $50,000. Once funds have been distributed to the sub-trusts by the investment directors, the trustee of each sub-trust has the discretion to distribute those funds to the trust beneficiaries for their "education and maintenance in health and reasonable comfort," bearing in mind that he or she has a fiduciary duty to all beneficiaries of the trust and must pay out taxes and other expenses necessary to meet the trust's financial obligations. A beneficiary is thus twice removed from access to the trust assets

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