In the Matter of Susan Spenard and David Spenard
167 N.H. 1
N.H.2014Background
- Susan and David Spenard married in 1998, one child born during the marriage; joint divorce petition filed 2010 and final hearing held Dec. 2012.
- David worked in real estate/title work (cyclical); sold a real estate business in 2007 for ~$450,000 and later obtained steady state employment in Oct. 2012.
- Susan worked as an entertainer during the marriage, reduced hours after child’s birth, and claimed since June 2012 she could not work due to health issues but offered no expert medical testimony at trial.
- Evidence at trial: testimony that Susan earned $1,000–$1,600 per night when working; investigator’s interview corroborating high nightly earnings; bank records showing discretionary spending while she claimed disability.
- David sold a $190,000 promissory note in April 2012 and held a $20,000 note; he did not disclose those notes on later financial affidavits; trial court awarded assets as listed on affidavits but did not mention the notes.
- Trial court: imputed $4,000/month income to Susan, denied motion to reopen for new medical evidence, and issued property division that omitted findings on promissory notes; Supreme Court affirmed in part, vacated property division and remanded.
Issues
| Issue | Spenard (petitioner) Argument | David (respondent) Argument | Held |
|---|---|---|---|
| Whether trial court properly imputed $4,000/mo income to Susan for child support/alimony | Court lacked an express finding of voluntary unemployment; Susan is 45 and medically unable to work | Imputation proper based on past earnings, investigator report, discretionary spending | Court upheld imputation: implied finding of voluntary unemployment was supported by record and $4,000/mo earning capacity was reasonable |
| Whether trial court erred by denying motion to reopen for newly discovered medical evidence | Couldn’t obtain diagnosis before trial because respondent failed to provide insurance per temporary orders; new neurologist diagnosis shows disability | Respondent had cured insurance and obligations months before trial; petitioner was at fault for not obtaining diagnosis | Denial affirmed: court reasonably could find petitioner at fault for failing to secure diagnosis before trial |
| Whether trial court failed to account for promissory notes (sale proceeds and remaining note) in property division | Notes/proceeds were marital property (and sale may have violated anti-hypothecation order); court failed to consider them | Argues trial court made reasonable findings regarding notes (but notes were not disclosed) | Property distribution vacated and remanded: trial court made no findings on notes, must consider them and make specific findings on remand |
| Whether trial court misidentified/awarded interest in two investment accounts and lacked jurisdiction over accounts allegedly owned by petitioner’s parents | Accounts were funded by petitioner’s parents and thus may be third-party property outside court’s power | Trial court properly distributed accounts as listed on affidavits | Court did not decide on the accounts now because property division vacated; on remand court must make findings regarding ownership and third-party interests before awarding any interest |
Key Cases Cited
- In the Matter of Brownell & Brownell, 163 N.H. 593 (trial court has broad discretion in divorce decrees)
- In re Muller, 164 N.H. 512 (voluntary unemployment is factual question for factfinder)
- Town of Weare v. Paquette, 121 N.H. 653 (party seeking to reopen must show no fault in failing to discover evidence)
- Bricker v. Sceva Speare Mem’l Hosp., 114 N.H. 229 (same standard for reopening based on newly discovered evidence)
- In the Matter of Donovan & Donovan, 152 N.H. 55 (no requirement for express finding of voluntary unemployment)
- In the Matter of Heinrich & Heinrich, 164 N.H. 357 (property acquired up to decree date is subject to equitable distribution)
- In the Matter of Preston and Preston, 147 N.H. 48 (financial instruments/annuities can be marital property)
- In the Matter of Nassar & Nassar, 156 N.H. 769 (court must make specific findings when dividing marital property)
- In the Matter of Chamberlin & Chamberlin, 155 N.H. 13 (court must analyze third-party ownership and rights to income when assessing marital property)