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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 ___________________________ Laconia Family Division No. 2009-918 IN THE MATTER OF KENNETH R. CANAWAY AND MARY N. CANAWAY Argued: September 16, 2010 Opinion Issued: December 7, 2010 Conklin & Reynolds, P.A., of Plymouth (Deborah R. Reynolds on the brief and orally), for the petitioner. Law Offices of Paul M. Colella, of Winchester, Massachusetts (Paul M. Colella on the brief and orally), for the respondent. DUGGAN, J. The petitioner, Kenneth Canaway (husband), appeals a decision of the Laconia Family Division (Sadler, J.) denying his petition to terminate alimony payments to the respondent, Mary Canaway (wife), and awarding the wife attorneys' fees. We affirm. The record supports the following facts. The parties were divorced in 1994 following twenty-four years of marriage. At that time, in addition to dividing the parties' marital assets, the court ordered the husband to pay alimony of $2,500 per month for one year, $1,500 per month for the next two years and $1,000 per month indefinitely thereafter. The court ordered indefinite alimony because of the parties' "disproportionate abilities to earn income at present and in the future."

In 2003, the husband filed the first of three motions to modify alimony, alleging that his employer had laid him off because of downsizing and that he could not find another job. He also alleged that poor health limited his ability to work. The court denied his motion, finding that there had not been a "substantial unforeseen change in circumstances making the continuation of the present order unfair or improper." In 2007, the husband again moved to terminate his alimony obligation, alleging that alimony was no longer justified based upon the parties' current financial conditions, his health, and his inability to earn a sufficient income to meet his reasonable expenses. The court denied his motion to terminate alimony, but reduced the payments to $750 per month, indefinitely. The court found that the wife still needed alimony despite an increase in income, that the court that issued the original alimony order knew the parties' situations were likely to change, that the husband had a college education and employment skills that would allow him to obtain employment, and that he still owned substantial unencumbered assets. In 2009, the husband brought his third motion to terminate alimony. He again argued that he could no longer afford to pay alimony, alleging that he had been forced to borrow $69,000 against his home "to make ends meet," that he had to withdraw money from his IRAs to pay his living expenses and alimony, and that he had little to no income. He also contended that his medical condition restricted his ability to find employment. He further alleged that the wife's income exceeded his own, even allowing her to make monthly contributions to her IRA. In response, the wife filed a petition for contempt, alleging that the husband unilaterally ceased paying alimony in December 2008. The trial court found that even with alimony, the wife lived in a "delicate financial balance," and that her budget was about $500 in deficit each month. The court determined that the husband had the ability to pay, but chose to spend his available funds in other areas such as supporting his fianc

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New Hampshire Law