In re Henry

163 N.H. 175

37 A.3d 320

In the Matter of Marty A. HENRY and Thomas A. Henry.

No. 2010–785.

Supreme Court of New Hampshire.

Argued: Nov. 10, 2011.Opinion Issued: Jan. 13, 2012.

Burnham & Associates, PLLC, of Hampton (Stephanie K. Burnham on the brief and orally), for the petitioner.

Michael F. Mimno, of Andover, Massachusetts, by brief and orally, for the respondent.

HICKS, J.

The respondent, Thomas A. Henry, appeals the final decree in his divorce from the petitioner, Marty A. Henry. He argues that the Derry Family Division ( Moore, J.) erred when it granted the petitioner a fault-based divorce. He also challenges the trial court's division of the parties' property and its decision to award the petitioner alimony. We affirm.

The trial court found the following facts. The parties were married for approximately thirty-six years. Although they did not conceive any children together, in 1979 the respondent adopted the petitioner's son. On May 22, 2009, the petitioner petitioned for a fault-based divorce on the ground that the respondent had “so treated [her] as seriously to injure [her] health or endanger [her] reason.” RSA 458:7, V (2004). She alleged that the parties' relationship broke down approximately a week before she filed for divorce, on May 14, 2009, when the parties' son informed her that the respondent had sexually abused him when he was twelve. She contended that the discovery of this information seriously endangered her health and reason, causing her to suffer from depression, insomnia and weight loss. Although the respondent denied the allegation, the trial court found that his denial was not credible.

Based upon the petitioner's testimony and that of her son and daughter-in-law, as well as an e-mail message and voicemail message from the respondent, the trial court granted the petition for a fault-based divorce, finding that the respondent's inappropriate conduct with the parties' son seriously endangered the petitioner's health and reason. Given the petitioner's inability to provide for her own reasonable needs and the respondent's ability to provide for both his needs and hers, the trial court awarded the petitioner $1,500 per month in alimony until the respondent retires from his current position at General Electric and begins receiving a pension. Additionally, the court ordered a slightly unequal distribution of the parties' assets, with the petitioner receiving fifty-three percent and the respondent receiving forty-seven percent of them. This appeal followed.

Before addressing the parties' arguments, we note that although the trial court specifically ruled upon the petitioner's requests for findings and rulings, the respondent, who is the appealing party, has not provided the requests for findings and rulings in the record submitted on appeal; therefore, the record does not reflect the substance of the trial court's rulings. However, we assume that they support the trial court's decision and, further, we do not consider ourselves limited to the findings and rulings the trial court recited in its narrative order. See In re Guardianship of Nicholas P., 162 N.H. 199, 202, 27 A.3d 653 (2011).

I. Fault–Based Divorce

We first address the respondent's assertion that the trial court erred by granting the petitioner a divorce on the ground of conduct that seriously injured her health or seriously endangered her reason. See RSA 458:7, V; see also In the Matter of Guy & Guy, 158 N.H. 411, 412, 969 A.2d 373 (2009) (explaining that the adverb “seriously” modifies both “injure health” and “endanger reason”).

The gravamen of a cause of action for divorce on this ground is the injury to health or the danger to reason. In the Matter of Guy & Guy, 158 N.H. at 413, 969 A.2d 373. “Whether the behavior proved is a sufficient ground of divorce depends on whether it has seriously injured health or endangered reason. This is the sole test.” Id. (quotation and ellipsis omitted; emphasis added). While the statute does not require proof of conduct that would have affected an average or reasonable person, it does require proof that the health or reason of the complaining spouse was actually affected. Id. Whether the innocent party has been so treated is a question of fact for the trial court. Id. We will sustain the trial court's findings on this issue unless they lack evidentiary support or are legally erroneous. Id.

Because the record supports the trial court's finding that the respondent's conduct seriously injured the petitioner's health or seriously endangered her reason, we uphold it. The parties' son testified that on May 14, 2009, he told the petitioner that the respondent had abused him beginning when he was twelve or thirteen years old. The son said that the abuse happened in connection with “buddy showers,” which were showers he took with the respondent when he was twelve or thirteen years old ostensibly to help him become “familiar with naked men” and to “conserve water.”

The petitioner testified that the conversation took place as follows:

[M]y son looked at me and brought up these buddy showers that ... had been explained to [me] were so that when he entered high school and ... [was] going to be confronted with the male body ... [the buddy showers were] to make him feel more comfortable....

The expression on his face scared me, and I looked at him and I said, but they were buddy showers. And he told me they were more than buddy showers. I asked him one question, I said can you please tell me the act that I think you're talking about was never consummated, that you weren't violated, and he said I can't tell you that, and I'm sorry.

The petitioner testified that a few days later, after she had met with her divorce attorney, she confronted her husband:

I looked at [the respondent] and I said I know what you've done to my son.... [T]hen I said this is my attorney's card. I filed for divorce this morning, and I want your house keys and credit cards.... I told him his things were in the hot-tub room.... [H]is first comment when I told him I knew what he had done was it's not like it wasn't consensual. And with that remark, my daughter-in-law freaked out, got very upset, how could you call it consensual with a child? He said, well, it was probably a moment of weakness on both parts. And I told him I couldn't let him in the house.

The next morning, the respondent sent an e-mail to the petitioner, which stated: “I don't want to be divorced. I want to stay with my family of 35 years.... I'm deeply sorry I hurt you because I screwed up 30 years ago. I never meant to hurt [our son]....” The respondent also left a voice mail message for the petitioner in which he again stated that the incident “was probably a moment of weakness on both parties' part.” Additionally, the petitioner testified that she asked the respondent about his conduct “on numerous occasions.” The respondent said, “I was just a kid.... I didn't know what [I] was doing.” When the petitioner asked the respondent why the abuse stopped, he “wouldn't answer that question.” At trial, the respondent admitted taking “buddy showers” with the parties' son when the son was a child.

The petitioner testified that when her son told her about the abuse, she “freaked out” and that this “lasted for quite a while.” She testified that she “feel[s] like someone that [she] loved and trusted totally destroyed [her] and [her] son.” The petitioner testified that as a result of learning that the respondent abused her son, she has “had a lot of anxiety attacks” and has “gone into depression.” She testified that as a result of the disclosure, she is seeing a counselor and taking medication for her symptoms. She also testified that she has “lost a little bit of weight a little quicker than they probably wanted [her] to, even though [she] ha[s] had [gastric bypass] surgery to do that.” Additionally, she testified that she suffers from “the shakes, ... lightheadedness[,] ... and ... dizziness,” which she attributes to “nerves.”

The parties' son testified that as a result of his disclosure about the abuse, the petitioner “has been extremely upset, withdrawn, daily almost” and has had “far more bad days than good days.” He testified, “Days she'll sit crying in the dark in the living room in the love seat under a blanket.” He also testified that she has suffered from “weight loss, dropped-foot syndrome” as well as “[p]eriods of lightheadedness, dizziness.”

The evidence supports the trial court's finding that the respondent's conduct caused serious injury to the petitioner's health or seriously endangered her reason. “While the testimony presented by the parties conflicted, the trial judge was in the best position to evaluate the evidence, measure its persuasiveness and assess the credibility of the witnesses.” In the Matter of Mannion & Mannion, 155 N.H. 52, 57, 917 A.2d 1272 (2007). Here, the record supports the trial court's findings, and we find no legal error in its decision to grant the petitioner a divorce on the ground that the respondent's conduct seriously injured her health or seriously endangered her reason.

We reject the respondent's assertion that his alleged conduct was insufficient as a matter of law to constitute treatment that seriously injured the petitioner's health or seriously endangered her reason because it occurred thirty years ago and was not directed towards the petitioner herself. “ Any behavior ” that “affects the other physically or mentally is treatment within the meaning of the statute.” In the Matter of Guy & Guy, 158 N.H. at 413, 969 A.2d 373 (quotations omitted; emphasis added). For a spouse's behavior to satisfy the statute, “[i]t does not matter whether the conduct was directed towards the innocent spouse or whether the guilty spouse engaged in the conduct with malevolent intent.” Id. While the respondent's alleged conduct may have occurred many years ago, the petitioner learned of it only days before filing for...