In re Hoyt

171 N.H. 373

196 A.3d 85

In the MATTER OF Steven HOYT and Lesley Hoyt

No. 2017-0238

Supreme Court of New Hampshire.

Submitted: March 8, 2018

Opinion Issued: October 3, 2018

Steven Hoyt, self-represented party, by brief.

Lesley Hoyt, self-represented party, by brief.

LYNN, C.J.

The petitioner, Steven Hoyt, appeals an order of the Circuit Court (Pendleton, J.) reinstating his alimony obligation to the respondent, Lesley Hoyt, and granting an upward adjustment to his child support payments. We affirm.

The following facts are found in the record. The respondent and the petitioner divorced in 2010 after an 18-year marriage. In 2013, the respondent filed a post-divorce petition seeking, among other things, an award of alimony. By order dated October 1, 2014, the Circuit Court (Albee, J.) awarded the respondent "temporary alimony for a period not to exceed 18 months ... in the amount of $150 monthly." According to the trial court, the award was necessary to provide the respondent, who was suffering from tendonitis at the time, with "some temporary assistance" until she was able to restore her health and work a greater number of hours.

The parties have three children. The oldest two are currently over the age of 18. The oldest child recently withdrew from college and moved back in with the respondent due to a medical condition. The middle child attends college but lives with the respondent while school is not in session. The parties' youngest child is in high school, and primarily resides with the respondent.

On May 12, 2016, the petitioner filed a request in the trial court seeking a reduction to his child support obligation because the middle child had recently turned 18. However, in June 2016, prior to receiving approval from the trial court, the petitioner reduced the amount of his monthly child support payment. Thereafter, the respondent requested alimony. Prior to the final hearing, the respondent filed a one-page proposed order seeking to increase child support for the youngest child to $1,100 per month and requesting alimony in the amount of $600 per month. The petitioner requested that the current child support payment be reduced to $982 per month. Accompanying the petitioner's proposed order was a detailed request for factual findings along with legal citation in support of his position.

On January 25, 2017, the court held a final hearing to resolve these issues. The respondent testified at that hearing that the parties' oldest child had to drop out of school due to a medical condition that caused her joints to become easily dislocated and made it difficult for her to get out of bed without assistance. The oldest child also suffered from a neuropathy that caused severe pain and joint stiffness. The respondent explained that she regularly drives her to Dartmouth-Hitchcock Hospital for treatment. The respondent also explained that she is paying for the parties' middle child to go to college and otherwise provides him with financial support. As for the parties' youngest child, the respondent testified that increased costs of extracurricular activities justify an upward deviation in child support. Specifically, the youngest child had recently been invited to go to Disney World with her dance team. According to the respondent, "the cost of the trip alone is $1600," and the additional cost of costumes and other provisions will increase the total bill to $3,000. The respondent stated that the petitioner refused to contribute any money toward the cost of the trip. The youngest child is also in the school band, and the respondent testified that she is responsible for purchasing instruments and uniforms. As a final point, the respondent explained that she had become delinquent with "all" of her credit cards after the petitioner reduced his child support payment, and these bills are "now in collections."

The petitioner argued that the respondent's request for alimony was untimely under New Hampshire law. Specifically, the petitioner took the position that the original alimony award was only "temporary," and thus could not be reinstated because the current request was made more than five years from the original divorce decree. The petitioner also argued that his child support obligation should not be increased to fund the youngest child's extracurricular activities because his "support pays for that already" and "$3,000 is a lot of money" for a trip that was merely "optional."

On March 13, 2017, the trial court issued an order renewing alimony and granting an upward adjustment to the petitioner's child support obligation. The trial court rejected the petitioner's argument that the original alimony award was "temporary," concluding that it was a "permanent award for a set period of time." Moreover, the trial court reasoned that the respondent's current living situation — taking care of three children, one of whom was suffering from "debilitating medical issues" — coupled with her lack of sufficient income, warranted an alimony award of $200 per month for 12 months. As for child support, the trial court found that the respondent's financial difficulties, coupled with the "extraordinary costs related to [the youngest child's] after school activities," warranted a minor upward adjustment to $1053 per month in order to meet the youngest child's needs. The petitioner's motion to reconsider was denied, and this appeal followed.

"On appeal, we will affirm the findings and rulings of the trial court unless they are unsupported by the evidence or legally erroneous." In the Matter of Nyhan and Nyhan, 147 N.H. 768, 770, 802 A.2d 1183 (2002) ; In the Matter of Plaisted & Plaisted, 149 N.H. 522, 523, 824 A.2d 148 (2003). We afford broad discretion to the trial court in determining and ordering child support and alimony. See In the Matter of Johnson & Johnson, 158 N.H. 555, 558, 969 A.2d 365 (2009) ; In the Matter of Nassar & Nassar, 156 N.H. 769, 772, 943 A.2d 740 (2008). "Accordingly, absent an unsustainable exercise of discretion, we will not overturn its factual findings." Nassar, 156 N.H. at 772, 943 A.2d 740. "However, we review its interpretation of the law de novo." Id.

The petitioner argues that the trial court exceeded its statutory authority to award additional alimony. Specifically, he argues that the original award was "temporary" and therefore, under RSA 458:19, could only be adjusted within five years of the original divorce decree. Relying on Judge Albee's use of the phrase "temporary alimony" in the 2014 order, the petitioner argues that Judge Albee clearly intended the award to be "subject to the 5 year limit from the date of the decree."

Alimony is a statutory creature governed by RSA 458:19 (2004) (amended 2018). See 27B C.J.S. Divorce § 501, at 85-87 (2016). RSA 458:19 authorizes the trial court to consider a request for post-divorce alimony in two separate circumstances. One situation arises when a party seeks alimony for the first time after divorce. See RSA 458:19, I. In that scenario, the statute authorizes the trial court to "make orders for the payment of alimony to the party in need of alimony, either temporary or permanent, for a definite or indefinite period of time, if the motion for alimony payments is made within 5 years of the decree of nullity or divorce ...." Id. The other situation occurs when "an order for permanent alimony for a definite period of time" has been previously granted by the trial court. RSA 458:19, VII. Under the statute, "such [an] order may be renewed, upon the petition of either party, provided that such petition is made within 5 years of the termination date of the permanent alimony order." Id.

At the time of the trial court's order, the statute did not define the terms "temporary" or "permanent." The trial court reasoned that "temporary alimony" means an award granted "as part of the temporary orders ... prior to a final order being issued." In the trial court's view, this was "the only interpretation that gives meaning to the words temporary and permanent in light of RSA 458:19, [VII], and its reference to permanent alimony for a defined period." The trial court explained that "while [the alimony granted in 2014] may have been for a temporary period," it "was awarded post final decree ... for the defined period of 18 months, meaning it was permanent for a set period of time under" the statute.

The petitioner argues that our decisions in In the Matter of Fowler and Fowler, 145 N.H. 516, 764 A.2d 916 (2000), and Nassar provide the requisite interpretations for temporary and permanent alimony. We disagree. In both Fowler and Nassar, we simply recognized that while the primary purpose of alimony is rehabilitative, there are certain factual scenarios that override the rehabilitative principle. See Nassar, 156 N.H. at 777, 943 A.2d 740 ; Fowler, 145 N.H. at 520, 764 A.2d 916. We did not specifically define what constituted "temporary" or "permanent" alimony for purposes of the statute.

"Strictly speaking, temporary alimony is the allowance which a spouse may be compelled to pay the other spouse pendente lite, in order to enable the other spouse to maintain or defend the divorce action." 27B C.J.S., supra § 504, at 90. Authority from other states explains that "[t]he purpose of temporary alimony is to furnish a needy spouse with funds sufficient to prevent the spouse from becoming a public charge while his or her rights are being adjudicated." Burtoff v. Burtoff, 418 A.2d 1085, 1092 (D.C. 1980) ; see Belfiglio v. Belfiglio, 99 A.D.2d 462, 469 N.Y.S.2d 978, 979 (1984) ("Temporary maintenance is designed to insure that the needy spouse is provided with sufficient funds to meet his or her reasonable needs pending trial."). By contrast, "[p]ermanent alimony is an award made in conjunction with the determination of the merits of the action." 27B C.J.S., supra § 505, at 92 ; see Wilson v. Superior Court, 31 Cal.2d 458, 189 P.2d 266, 269 (1948) (classifying permanent alimony as "an award made...