In this appeal from a final divorce decree issued by the 10th Circuit Court — Derry Family Division (Moore, J.), the respondent, William Muller, appeals the trial court’s rulings apportioning the equity in the marital home and imputing $68,000 in annual income to him for child support purposes. We affirm in part, vacate in part, and remand.
The following facts are drawn from the record. The petitioner, Gabrielle Muller (Wife), and William Muller (Husband) married in October 2006 and have one minor child, born in July 2007. The parties purchased a home in Auburn in November 2006 with funds from a mortgage loan in the amount of $200,000 from Bank of America, N.A. and $186,332.23 in cash from the Husband’s parents. The marital home is in the Husband’s name. The parties agreed that at the time of trial the home was worth $340,000.
At trial, the parties disagreed as to whether the $186,332.23 from the Husband’s parents was a loan or a gift: the Husband asserted that the money was lent by his parents pursuant to an oral agreement; the Wife understood the money to be a gift, and asserted that the Husband’s parents never indicated that they expected to be repaid. At the time the home was purchased, no second mortgage was filed with the registry of deeds.
In August 2009, nearly three years after the purchase of the marital home, the Husband executed a promissory note to his parents in the amount of $186,332.23, which was signed by the Husband and his father. The typewritten date on the note was November 22,2006, but the Husband did not actually sign the note until August 18, 2009. Approximately one month later, in September 2009, the Wife filed for divorce. On October 14, 2009, the Husband filed with the registry of deeds an undated mortgage deed to his parents, which referenced a November 22, 2006 promissory
Eleven months before trial, the Husband was terminated from his job for poor job performance after multiple warnings. He remained unemployed up to the time of trial.
After a final evidentiary hearing, the trial court awarded the Wife a fault-based divorce pursuant to RSA 458:7, V (2004) (fault based on treatment so as to seriously injure health or endanger reason). In allocating the marital debt, the trial court ruled that the Husband was to be “solely responsible for any obligation due his parents relative to the marital residence.” The court ordered that the residence “shall immediately be placed on the market for sale ... at a reasonably competitive price,” which the court expected would “maximize[ ] the net proceeds after payment of the first mortgage, taxes, and standard closing costs.” (Emphasis added.) The court ordered “the net proceeds of the property” to be “divided equally between the parties.” It continued: “In entering the aforementioned order, this Court is entering a specific finding that it does not find the [Husband’s] representations that the parties agreed to [a] $180,000 loan from the [Husband’s] parents to be credible.” After marshaling the factual bases for its opinion that the Husband and his parents drafted the promissory note and second mortgage in “an attempt to divest the [Wife] of any interest in the marital residence,” the trial court ruled that the note and mortgage did not “evidence a valid debt.” The court concluded its order evenly dividing the equity in the marital residence by noting:
Due to the fact that this Court is entering a finding that [the Husband’s parents’] contribution to the marital residence is not recognized as a debt this Court is left with no other option than to determine that it was initially a gift to the [Husband] and as such has no bearing on the disposition/division of the equity in the marital residence.
The court also found the Husband voluntarily unemployed/underemployed (hereinafter “unemployed”), and, in calculating child support, imputed $68,000 in annual income to him.
On appeal, the Husband argues that: (1) the trial court erred as a matter of law by effectively ordering the parties to disregard the $186,332.23 promissory note and mortgage deed to the Husband’s parents; (2) the trial court unsustainably exercised its discretion by failing to award the Husband the $186,332.23 payment from the Husband’s parents in view of the fact that the court characterized it as a gift; (3) the trial court unsustainably exercised its discretion in awarding the Wife fifty percent of the equity in the marital home; and (4) the trial court’s finding that the Husband was voluntarily unemployed and its decision to impute $68,000 in annual income to him were legally erroneous and unsupported by the record.
We first address the Husband’s argument that the trial court erred as a matter of law by disregarding the Husband’s parents’ interest in the marital residence. He asserts that: (1) the family division lacked subject matter jurisdiction to effectively invalidate the parents’ mortgage deed and promissory note, since disputed claims to marital real estate asserted by third parties must be brought in the superior court in the first instance; (2) the court’s order, effectively abolishing the Husband’s parents’ interest, is not binding upon the parents, since they were necessary parties to the proceeding, but did not participate (nor could they have, since the family division lacks jurisdiction over them); (3) the order
The Wife responds that the trial court did not err when it ordered the sale of the marital residence and distribution of the resulting equity without regard to the Husband’s parents’ interest because “the property was clearly an asset of the marriage, however encumbered, and clearly available for disposition as entered by the trial [c]ourt.” She agrees with the Husband that the trial court “invalidated” the Husband’s parents’ promissory note and mortgage deed, but contends that the recorded instruments “should not operate to invalidate the trial [c]ourt’s [ojrder to sell the marital home,” because the court determined that she did not agree to any obligation to the Husband’s parents, and found that the recorded mortgage constituted fraud.
We note first that the Wife’s argument that the recorded mortgage posed no impediment to the court’s disposition of the property is unavailing. “The equitable interest of a non-owner spouse in marital property does not super[s]ede the rights of creditors of the owner spouse during the pendency of the couple’s divorce proceeding.” In re Skorich,
“The family division is a court of limited jurisdiction, with exclusive power conferred by statute to decide cases in certain discrete areas, including petitions for divorce.” Id. (quotation omitted). Because the powers and jurisdiction of the family division are limited to those conferred by statute, see In the Matter of Mallett & Mallett,
“When undertaking statutory interpretation, we first examine the language found in the statute and where possible, we ascribe the plain and ordinary meanings to words used.” In the Matter of Gray & Gray,
The legislature created the judicial branch family division to provide “prompt and fair resolution of family issues by justices and marital masters specially selected and trained to deal effectively with such issues,” and to assign “all family matters of a single family to one family division justice or marital master located in a family division court that is geographically accessible to the family.” RSA 490-D:l (2010) (amended 2012). To this end, the statute provides that jurisdiction over, inter alia, “[petitions for divorce, nullity of marriage, alimony, custody of children, support, and to establish paternity,” are “exclusively exercised through the judicial branch family division as procedurally jurisdiction was previously exercised in the superior . . . court[ ].” RSA 490-D:2, I (2010). “Accordingly, in this state, original jurisdiction is granted to the judicial branch family division regarding divorce matters.” Daine,
Although RSA chapter 490-D expressly defines the family division’s jurisdiction as encompassing “divorce” generally, the overall scheme of the relevant divorce statutes governs issues of, among other things, the division of property and orders of support. Mallett,
However, RSA 458:16-a (2004) allows the family division to distribute only property that belongs to the divorcing parties. See RSA 458:16-a, I (“Property shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties.” (emphasis added)); In the Matter of Chamberlin & Chamberlin,
Because the
Our reading of the powers granted the family division under the current statutory scheme is supported by canons of statutory interpretation. Neither RSA chapter 490-D nor RSA chapter 458 reflects an intent on the part of the legislature to grant the family division jurisdiction, either exclusive or concurrent with the superior court, to invalidate the property interest of a non-divorcing party. In the absence of express legislative authorization, the family division has no jurisdiction to determine the validity of a third party’s interest in the parties’ marital property. See Daine,
This interpretation is also supported by the development of the law in the probate court context. In the absence of an explicit legislative grant of probate court jurisdiction over real property disputes, we held in O’Dwyer that the superior court was the proper forum for such a dispute, and the probate court lacked such jurisdiction. See In re Estate of O’Dwyer,
Because “[w]e interpret legislative intent from the statute as written and will not consider what the legislature might have said or add words that the legislature did not include,” Beal,
Finally, the Husband asserts that the record does not support the trial court’s finding that he was voluntarily unemployed and its imputation to him of $68,000 in annual income for child support purposes. Specifically, the Husband advances four claims. First, he maintains that the trial court erred by finding him voluntarily unemployed in its final order because the court had earlier found that he was not voluntarily unemployed. Second, he contends that, because testimony at the final hearing reflected that he had been involuntarily terminated from his employment, the trial court’s finding of voluntary unemployment constituted legal error. Third, he argues that the trial court erred by imputing income only to him and not to the Wife, even though she was also unemployed. Fourth, he contends that the trial court erred by imputing income to him at his highest previous income level. We disagree with all four contentions.
As to his first claim of error, the Husband relies on two October 2010 temporary orders, which, according to the Husband, preclude an ultimate finding of voluntary unemployment. In an October 6,2010 temporary order, the trial court granted the Husband’s request for reduction of his child support obligation to reflect his employment termination. However, the court made no ruling as to whether the Husband was voluntarily unemployed. Moreover, the court expressly stated that its order was “subject to modification upon the completion of discovery, [and] subject to recapture at the parties’ final hearing.” In its subsequent temporary order of October 25, 2010, the court again made no ruling as to whether the Husband was voluntarily unemployed. Because the temporary orders were subject to modification at the final hearing, we reject this claim of error.
The Husband next argues that because he had been involuntarily terminated from his employment eleven months before trial, the trial court erred in finding that he was voluntarily unemployed. Because trial courts are in the best position to determine the parties’ respective needs and their respective abilities to meet them, see In the Matter of Donovan & Donovan,
In calculating gross income for child support purposes, a trial court has the discretion to consider “the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.” RSA 458-C:2, IY(a) (2004). Whether a party is voluntarily unemployed is a question for the fact finder, whose decision will not be disturbed on appeal if supported by evidence in the record. In the Matter of Stall & Stall,
Our case law regarding a trial court’s consideration of the circumstances of a
However, the holding in Sarvela does not preclude a trial court from considering facts and circumstances bearing on a parent’s intent to avoid payment of child support, including the facts and circumstances surrounding the parent’s termination from employment. See id. at 434-36. In fact, in the same year we decided Sarvela, we recognized the relevance of a party’s intent to avoid child support on the question of voluntary unemployment. See In the Matter of Bazemore & Jack,
Here, the record supports the trial court’s finding that the Husband was voluntarily unemployed. The trial court noted that the circumstances of the Husband’s termination were “suspect,” but it primarily focused on the Husband’s actions during the eleven months between the time that he lost his job through the commencement of trial, and found that the Husband had the ability to become employed. The trial court did not find credible the Husband’s assertion that he was looking for work “all the time.” At the final hearing, the Husband testified that his efforts to seek employment consisted mainly of checking a website, jobsnh.com, every day. Cf. Stall,
Nor does the trial court’s decision to impute income only to the Husband and not to the Wife support reversal. The Husband alleges simply that the Wife, like the Husband, is unemployed, and that in a temporary order, the trial court suggested that she seek employment by the time of the final hearing. The trial court found, and the record reflects, that the Wife is the primary caregiver to the parties’ child. Although the court also stated that it anticipated that the Wife would be “gaining
If a trial court determines that a parent is voluntarily unemployed or underemployed, the court “may consider as gross income the difference between the amount that parent is earning and the amount that parent has earned.” RSA 458-C:2, IV(a). When he was terminated from his employment eleven months prior to trial, the Husband was earning an annual salary of approximately $68,000. Under all the circumstances, we find no error in the trial court’s imputation of $68,000 in annual earnings to the Husband for purposes of calculating child support.
Affirmed in part; vacated in part; and remanded.