In the Matter of Leslie Dow and Harry Dow, IV
169 A.3d 960
| N.H. | 2017Background
- Parties divorced after a 30+ year marriage; petitioner (Leslie Dow) previously earned about $21/hr but left work in 2010; respondent (Harry Dow IV) lost union job in 2013 and later started a business.
- Divorce decree (April 2014) stipulated respondent had no ability to pay alimony; petitioner could request alimony once respondent obtained new employment.
- Petitioner moved for alimony in 2015 alleging respondent earned sufficient income from his new business; respondent argued petitioner failed to pursue employment and could earn income.
- Trial court awarded petitioner $750/month for three years, found petitioner capable of contributing to her support and had not taken meaningful steps to become self-sufficient.
- Trial court declined to impute income to petitioner, ruling it lacked authority under RSA 458:19, and denied reconsideration; respondent appealed.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Whether trial court may impute income to a party when calculating alimony | RSA 458:19 IV(e) limits imputation to obligor; court lacked authority to impute income to petitioner | RSA 458:19 permits considering earning capacity; court may impute income to either party | Court held RSA 458:19 authorizes imputation of income to either party when setting alimony |
| Whether IV(e) creates a broad bar on imputing income | IV(e) is sole authority and bars imputing income to obligee | IV(e) is a narrow rule about attributing a subsequent spouse’s income to an obligor, not a general bar | IV(e) is narrow; does not preclude imputing income to the alimony recipient |
| Whether absence of explicit imputation language (unlike child support statute) prevents imputing income | Lack of explicit provision means no imputation authority | IV(b) allows consideration of earning capacities, which supports imputation | Court relied on IV(b)’s grant to consider earning capacity and allowed imputation |
| Whether any error was harmless because trial court didn’t find voluntary unemployment | Petitioner: no change because court did not find voluntary unemployment | Respondent: error could have affected calculation because court found petitioner could earn and had not acted diligently | Court found error not necessarily harmless and remanded for recalculation considering possible imputation |
Key Cases Cited
- In the Matter of Lyon & Lyon, 166 N.H. 315 (statutory interpretation de novo and legislative intent analysis)
- In the Matter of Sutton & Sutton, 148 N.H. 676 (trial court may impute income to alimony recipient based on earning potential)
- Hoffman v. Hoffman, 143 N.H. 514 (earning capacity may be considered in alimony determinations)
- Willey v. Willey, 866 P.2d 547 (Utah Ct. App. 1993) (imputing income to unemployed/underemployed spouse appropriate when setting spousal support)
- Christianson v. Christianson, 671 N.W.2d 801 (N.D. 2003) (courts may impute income where party voluntarily reduced income)
- Dionne v. Dionne, 129 N.H. 638 (upholding alimony where recipient was found capable of earning specified income)
- Parker v. Parker, 122 N.H. 658 (upholding alimony where recipient could earn money to contribute to needs)
- Hoffman v. Town of Gilford, 147 N.H. 85 (plain statutory language controls interpretation)
- In the Matter of Doherty & Doherty, 168 N.H. 694 (remand for further proceedings)