In re Schaulin-Viviers

37 A.3d 398

In the Matter of Karen SCHAULIN–VIVIERS and Norris Viviers.

No. 2010–842.

Supreme Court of New Hampshire.

Argued: Oct. 19, 2011.Opinion Issued: Feb. 10, 2012.

Tober Law Offices, P.A., of Portsmouth (Stephen L. Tober and Katharine J. Crawford on the brief, and Ms. Crawford orally), for the petitioner.

Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the respondent.

CONBOY, J.

The respondent, Norris Viviers, appeals an order recommended by a Marital Master ( Geiger, M.) and approved by the Manchester Family Division ( Emery, J.), ruling that his obligation to pay alimony to the petitioner, Karen Schaulin–Viviers, could not be modified because the parties agreed to a lump-sum payment of alimony. We vacate and remand.

The following facts are drawn from the record. The parties married in April 2003 and divorced in October 2007. The divorce decree, based on the parties' permanent stipulation, required the respondent to pay alimony to the petitioner “in an amount equal to $400,000.00 less the net proceeds” paid to the petitioner from the sale of a certain parcel of Florida real estate. The stipulation provided that the respondent would pay the alimony “at the rate of $55,000.00 per year on October 1st of each year beginning October 1, 2008 until paid in full.” It further provided that the alimony was “includable as income to the Petitioner ... and deductible by Respondent” pursuant to pertinent provisions of the federal Internal Revenue Code. The stipulation also required the respondent's alimony obligation to be secured by a third mortgage on his real estate located in Moultonborough.

In October 2008, the parties entered into an agreement that modified the respondent's alimony obligation by allowing him to pay the petitioner the first $55,000 payment in installments with $27,500 to be paid by October 3, 2008, and the remaining $27,500 to be paid in $5,000 increments monthly beginning on November 1, 2008.

In February 2009, the respondent moved to terminate his alimony obligation based upon changed financial circumstances. In his motion, he observed that his total alimony obligation was $282,000 ($400,000 less $118,000 from the proceeds of the sale of the Florida parcel). He alleged that he was a real estate developer and when the parties divorced, his “personal net worth was over 4.5 million dollars and his taxable earnings in 2007 [were] over $540,000.” He alleged that because “[t]he development and real estate market [had] suffered a dramatic down turn” since the parties divorced, his “stream of income and ... net worth” had “evaporate[ed] ... to approximately ... negative 2.3 million dollars.” Therefore, he sought to terminate his alimony obligation because of this “substantial unforeseen change in circumstances.”

In a 2009 order, which neither party appealed, the trial court granted the respondent's motion in part, finding that “the magnitude of the downturn in the economy and the real estate market,” which “was of historic proportions,” warranted restructuring his alimony obligation. The trial court found that the respondent “clearly ha[d] demonstrated a substantial change in his financial circumstances to warrant some relief, at least on a temporary basis until such time as the real estate market and economy begin to improve.” See In the Matter of Canaway & Canaway, 161 N.H. 286, 289, 13 A.3d 320 (2010) (party requesting alimony modification “must show that a substantial change in circumstances has arisen since the initial award, making the current alimony amount either improper or unfair” (quotation and brackets omitted)); see also RSA 458:14 (2004) (except under circumstances not at issue here, court “may revise and modify any order made by it”). Accordingly, the trial court reduced the amount of the respondent's monthly alimony obligation to $2,500 per month, although the court did not modify the total amount the respondent owed the petitioner in alimony, which as of August 2009 was $212,000.

In April 2010, the respondent moved to suspend the temporary alimony obligation imposed by the court's 2009 order. He alleged that since the trial court's 2009 order, his financial circumstances had further deteriorated such that he now had “no funds with which to pay alimony.” In response, the petitioner moved for contempt, arguing that the respondent was in contempt for failing to pay any alimony in April, May and June 2010 as well as June, July, August and September 2009, and for paying only $1,000 per month for April and May 2009.

Following a hearing, the trial court ruled that the respondent's alimony obligation was not modifiable because the parties had agreed to lump-sum alimony, payable over a period of time. See RSA 458:19, IV(a) (2004) (court “may make orders for alimony in a lump sum, periodic payments, or both”). The trial court ruled, however, that the terms under which this obligation could be satisfied were modifiable. Based upon its review of the respondent's financial information, the trial court reduced his alimony obligation to $1,000 per month. However, it found the respondent in contempt and awarded the petitioner her reasonable attorney's fees pursuant to RSA 458:51 (2004). The court ruled that it would not decide the amount of fees to be paid to the petitioner until the period for appealing its order had elapsed or, in the event of an appeal, until the appeal had concluded. This appeal followed.

We first address the petitioner's request that we dismiss the respondent's appeal because he was found to be in contempt and does not challenge the trial court's contempt finding on appeal. We have held:

[I]n limited circumstances, an appeal in a civil case may be dismissed if the appellant has failed to comply with an order of the trial court that relates directly to the issues raised by the appellant on appeal, and the issue of contempt is not being appealed. When a party has consciously and deliberately disregarded a trial court order that has direct bearing upon an issue for which that party seeks relief, we may exercise our discretion to dismiss.

DeMauro v. DeMauro, 147 N.H. 478, 482, 794 A.2d 112 (2002). We have applied this rule only once—in DeMauro. Because we find the circumstances of the instant appeal to be dissimilar to those in DeMauro, we decline to exercise our discretion to dismiss the respondent's appeal.

In DeMauro, “the defendant refused to comply with various trial court orders, including one to execute consent forms for the purpose of ascertaining his financial status.” Id. at 483, 794 A.2d 112. “Further, the defendant, while in contempt, did not attend the final divorce hearings.” Id. In addition, although ordered to do so, he failed to provide any temporary support to the plaintiff. Id. at 480, 481, 794 A.2d 112. Indeed, the trial court issued warrants for his arrest, finding that “the defendant had indicated to the plaintiff that unless she acceded to his offers for the payment of alimony and division of marital property, she would never receive anything from him and that he would continue, with the aid of his vast financial resources, to avoid service of process and arrest,” a threat, the trial court found, “which [had] proven to be all too accurate.” Id. at 480, 794 A.2d 112 (quotations and brackets omitted). We ruled that the defendant's actions reflected an overall “pattern of conduct intended to thwart an equitable distribution of the marital estate to the detriment of the plaintiff,” and exercised our discretion to dismiss his appeal. Id. at 483, 794 A.2d 112. We observed, as well, that in his appeal, the defendant challenged “precisely the outcome that he could have prevented, for it [was] his contempt for failing to execute authorizations that is potentially dispositive of the issue about which he complain[ed]” on appeal. Id.

While at oral argument in this case, the petitioner represented that the respondent had paid no alimony since the trial court found him in contempt, the record on appeal contains no evidence of this. Nor does the record indicate whether, since the trial court issued its contempt finding, the respondent has purged himself of the contempt. Accordingly, we decline the petitioner's request to dismiss the respondent's appeal on this basis.

We next address the respondent's assertion that the trial court erred as a matter of law when it ruled that his alimony obligation could not be modified because the parties agreed to a...