In re Britton

174 N.H. 702

273 A.3d 907

In the MATTER OF James R. BRITTON and Patricia F. Britton

Nos. 2020-0029

2020-0313

Supreme Court of New Hampshire.

Argued: March 31, 2021

Opinion Issued: January 5, 2022

Jonathan M. Flagg, of Portsmouth, by brief and orally, for the petitioner.

Devine, Millimet & Branch, Professional Association, of Manchester (Pamela A. Peterson on the brief and orally), for the respondent.

HANTZ MARCONI, J.

The petitioner, James R. Britton, appeals two orders of the Circuit Court (LeFrancois, J.) denying his request to terminate alimony and granting the requests of the respondent, Patricia F. Britton, for contempt for nonpayment of alimony and renewal of alimony. We affirm in part and reverse in part.

I

The parties were divorced in 1985 pursuant to a final divorce decree, which incorporated the parties’ permanent stipulation. The stipulation provided that the petitioner would pay $400 per week in alimony until the respondent died or reached the age of 65. After the respondent turned 65, the stipulation provided that the petitioner would pay her $200 per week in alimony until the death of either the petitioner or the respondent.

In 2016, the respondent filed a petition to bring forward and for contempt, alleging that the petitioner stopped paying alimony. The parties agreed to resolve the matter by stipulation (the 2016 stipulation). The trial court approved the 2016 stipulation, converting it into a court order. Thereafter, the petitioner resumed making $200 weekly payments to the respondent until April 2018. In June 2018, the petitioner filed a motion for modification requesting termination of the alimony award, alleging that he had a substantial decrease in income. In July 2018, the respondent filed a motion for contempt. The trial court held a final hearing on the merits on August 28, 2019.

In November 2019, the trial court issued an order that denied the petitioner's request to terminate alimony and granted the respondent's request to hold the petitioner in contempt for failing to pay alimony. The trial court observed that the 1983 version of RSA 458:19 applied to the parties’ divorce decree, and that it limited alimony to a period of three years unless the order was "renewed, modified, or extended" for an additional three years. See RSA 458:19 (1983). The trial court construed the 2016 stipulation as an extension of alimony for three years from October 2016 to October 2019. The trial court also determined that the petitioner "has not carried his burden of proof to terminate alimony" because he "has not established that he cannot continue to pay alimony of $200 per week," and that the respondent's "circumstances have not changed dramatically since her divorce in 1985."

In the November order, the trial court observed that the respondent had made an oral motion for renewed alimony at the beginning of the August 28 hearing on the merits, but the court deferred ruling on the motion. The respondent then filed a written motion, and the petitioner filed a written objection. Initially, the petitioner requested an additional hearing; however, the parties agreed to have the court decide the motion on the record presented. In a separate order, the trial court again found that the 1983 version of RSA 458:19 was applicable to the respondent's motion and awarded her three years of renewed alimony, from October 2019 to October 2022, in the amount of $200 per week. This appeal followed.

II

We first consider the petitioner's appeal of the trial court's decision on his motion for modification and the respondent's motion for contempt. The petitioner argues that the trial court erred as a matter of law when it found that the 1983 version of RSA 458:19 did not terminate his alimony obligations in 1988 and held him in contempt for discontinuing payments in 2018. The respondent argues that even if the 1983 version of RSA 458:19 limits an alimony order to a three-year duration, the petitioner waived any claim to recover the overpayment of alimony by agreeing to the stipulation, paying alimony for thirty years, and reaffirming his obligation with a new stipulation in 2016. Both parties agree that the 1983 version of RSA 458:19 applies to the parties’ original divorce decree.

The 1983 version of RSA 458:19 provides:

Upon a decree of nullity or divorce, the court may restore to the wife all or any part of her estate, and may assign to her such part of the estate of her husband, or order him to pay such sum of money, as may be deemed just, provided that in cases in which no children are involved, or in which the children have reached the age of majority, the order shall be effective for not more than 3 years .... However, such order may be renewed, modified or extended if justice requires for periods of not more than 3 years at a time; and may compel the husband to disclose, under oath, the situation of his property; and before or after the decree, may make such orders and use such process as may be necessary.

We have previously held that an obligation to pay alimony under this version of the statute automatically expired after three years unless renewed, modified, or extended. See In the Matter of Canaway & Canaway, 161 N.H. 286, 291, 13 A.3d 320 (2010). Furthermore, we have held that a stipulation providing for a term of alimony beyond the three-year limit does not override the statutory expiration of the alimony obligation. See Morphy v. Morphy, 112 N.H. 507, 509, 298 A.2d 580 (1972) ( Morphy I ). As a result, because the original alimony award was first entered in 1985, we conclude that the petitioner's alimony obligations expired in 1988.

Likewise, we conclude that the court order approving the 2016 stipulation did not serve to renew or extend the 1985 alimony award. See In the Matter of Goulart & Goulart, 158 N.H. 328, 330, 965 A.2d 1068 (2009) ("The superior court's ... approval of the parties’ stipulated parenting plan made the stipulation an order."). We reject the trial court's characterization of the 2016 stipulation as an extension of alimony. The parties expressly stated in the 2016 stipulation that its purpose was to resolve the respondent's petition to bring forward, to enforce the 1985 divorce decree, and for contempt. Nothing in the 2016 stipulation purports to extend or renew alimony; in fact, the only provision referencing alimony provides that the petitioner "shall pay any and all future weekly alimony payments to [the respondent] in a timely manner via the office at Exeter River Landing." The 2016 stipulation does not state an amount of alimony, but the petitioner paid, and the respondent accepted, $200 per week, indicating that the parties believed that the 1985 alimony award remained in force. The 2016 stipulation did not renew or extend the 1985 alimony award, but merely resolved the respondent's pending petition under an erroneous understanding that the original alimony award was still in effect. Accordingly, we agree with the petitioner that the 2016 stipulation did not serve to renew or extend the 1985 alimony award. See Morphy I, 112 N.H. at 509, 298 A.2d 580.

We have previously held that, when an alimony award has expired by statute, the payor cannot be held in contempt or ordered to pay arrearages. Id. Since we have concluded that the petitioner's obligation to pay alimony expired in 1988, we hold that the trial court erred in finding the petitioner in contempt of the 2016 stipulation and order. See, e.g., Goulart, 158 N.H. at 332, 965 A.2d 1068 (finding that it was plain error based on mistake of law for the family court to enforce a provision of the divorcing parties’ court-approved stipulation because it was unenforceable by statute).

In addition, because we conclude that the trial court erred in holding the petitioner in contempt, and because the trial court set forth no alternative reason that attorney's fees should be awarded, we likewise conclude that the trial court erred when it awarded attorney's fees to the respondent on the motion for contempt. See DePalantino v. DePalantino, 139 N.H. 522, 526, 658 A.2d 1207 (1995) (reversing the trial court's award of attorney's fees because the favorable ruling had been overturned and the trial court had made no other finding to support awarding attorney's fees).

The petitioner next argues that the trial court erred when it declined to order reimbursement from the respondent or, in the alternative, credit the overpayment toward his future alimony obligations. As noted above, the petitioner did not have an obligation to pay alimony after the alimony award expired in 1988. As a result, the amounts the petitioner paid in error based on the mistaken belief that the 1985 alimony order remained in effect were not required and were, therefore, voluntary. Absent fraud, "money voluntarily paid under a mistake of law cannot be recovered." Harding v. Hewes, 87 N.H. 488, 488, 179 A. 343 (1935) ; see also Mullins v. O'Brien, 93 N.H. 118, 118-19, 36 A.2d 625 (1944) ("A person who has conferred a benefit upon another induced thereto by a mistake of law, is entitled to restitution thereof if his mistake was caused by reliance upon a fraudulent misrepresentation of the law by the other."). The petitioner has not made any allegation of fraud. As a result, the petitioner is not entitled to reimbursement for any of the sums he paid to the respondent between 1988 and 2018. Harding, 87 N.H. at 488, 179 A. 343.

Nor are we persuaded by the petitioner's argument that the trial court erred by denying his request for credit for payments made between 1988 and 2018 toward any future alimony obligations. Even assuming, without deciding, that the trial court had discretion to allow such credit, the trial court made numerous findings concerning the respondent's ongoing need for continued alimony support. Thus, the trial court implicitly concluded that crediting voluntary payments toward future alimony obligations would not meet the respondent's need. Accordingly, we conclude that the...