In the Matter of Tara Dickison and Thomas Sileo
Thе court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See
The trial court found the following facts. The parties divorced in 2016. At the time of the divorce, thеy had been married for twenty-two years and had three children, the youngest of whom were fourteen-year-old twins. Wife had not worked outside the home for approximately eighteen years. At the time of the divorce, Husband was a financial advisor whose reрorted annual income in 2016 was $340,000. Pursuant to a stipulated decree, Husband was to pay Wife $5,000 per month in child support and $9,000 per month in alimony. The stipulation stated that Husband‘s obligation to pay alimony “shall terminate upon the life of [Husband].” The parties signed the stiрulation in February 2016 and re-initialed it when they appeared at court in April 2016.
Shortly after the twins graduated from high school, Wife began residing with another man, whom she married in January 2021. Husband continued to pay the full alimony obligation to Wife until December 2022 when Husband notified Wife that he had sent her a check for $8,000. He stated that he was experiencing financial difficulties and suggested “dropping alimony to $5,000 until [he] got caught up.” Wife did not agree to the reduction, stating that she could not “accept the cut at this point.” Husband responded, “you can take me to court. But I‘m always going to protect my business.” Thereafter, Husband unilaterally further reduced his monthly payments.
In April 2023 Husband moved to modify his $9,000-per-month alimony obligation. In May 2023 Wife moved for a finding of contempt against Husband for his reduction in alimony pаyments. Following a hearing, the trial court denied Husband‘s petition to modify after finding that he had not demonstrated a substantial and unforeseeable change in circumstances that warranted modifying the divorce decree. The trial court also found Husband in contеmpt
Husband argues that the trial court erred when it: (1) concluded that Wife‘s remarriage was not a substantial change in circumstances warranting modification of alimony; (2) failed to shift the burden of proof to Wife to establish “extraordinary circumstances or a special situation making it clearly and definitely inequitable for the alimony to cease;” and (3) held Husband in contempt for alimony arrearage.
We consider first Husband‘s argument that the trial court erred when it denied his motion to modify alimony. We will not overturn the trial court‘s denial of a request to modify alimony absent an unsustainable exercise of discretion. In the Matter of Canaway & Canaway, 161 N.H. 286, 289 (2010). To establish that the trial court unsustainably exercised its discretion, Husband must show that the trial court‘s decision was clearly untenable or unreasonable to the prejudice of his case. See State v. Lambert, 147 N.H. 295, 296 (2001).
“[T]he party requesting an 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.” In the Matter of Doherty & Doherty, 168 N.H. 694, 701 (2016). “The trial court must inquire into the changed circumstances of both parties and must take into account all of the circumstances of the parties, including the terms of the stipulation.” Id. (quotatiоn and citations omitted). While the court must inquire into the changed circumstances of both parties, the burden of proof rests with the party seeking modification. Canaway, 161 N.H. at 290-91. “Changes to a party‘s condition that are . . . foreseeable at the time of the decree cannot rise to the level of a substantial change in circumstances sufficient to warrant a modification of an alimony award.” Laflamme v. Laflamme, 144 N.H. 524, 528-29 (1999).
On appeal, Husband does not argue that the trial court‘s ruling that he did not demonstrate a substantial and unforeseeable change in circumstances was an unsustainable exercise of discretion. Rather, Husband asserts that the trial court erred as a matter of law when it concluded that Wife‘s remarriage was not a per se substantial change in circumstances warranting modification of alimony and failed to shift the burden of proof to Wife to establish “extraordinary circumstances or a special situation making it clearly and definitely inequitable for the alimony to cease.” Husband cites Eaton v. Eaton, 90 N.H. 4 (1939), for the proposition that an alimony reсipient‘s remarriage is a substantial change in circumstances as a matter of law, entitling the obligor to terminate alimony unless the recipient proves “extraordinary circumstances or a special situation making it clearly and definitely inequitable for the alimony to cease.” Eaton, 90 N.H. at 7. While we agree with Husband that this
It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). It is the burden of the appealing party, here, Husband, to demonstrate that he raised before the trial court the issues he has presented on appeal. Id.; see also
The final order issued by the trial court set forth the following regarding the legal standard:
Alimony law applicable at the time of the parties’ divorce provides that in order to obtain a modification of support, the moving party must demonstrate that a substantial change in circumstances has arisen since the initial award, making the current support amount either improper or unfair. The New Hampshire Supreme Court has held that changes to a party‘s condition that are both anticiрated and foreseeable at the time of the decree cannot rise to the level of a substantial change in circumstances sufficient to warrant modification of an alimony award. Both parties’ counsel concede that the foregoing legal standard is applicable here despite the amendment to the alimony statute following this divorce. The party seeking modification has the burden of proof.
(citations and quotations omitted). The trial court then applied this legal standard and dеtermined that Husband had not demonstrated a substantial and unforeseeable change of circumstances warranting modification of the 2016 divorce decree.
Husband‘s brief cites to his motion to modify and his motion to reconsider the final order to demonstrate that he raised the effects of Wife‘s remarriage in the trial court. See
We turn now to Husband‘s argument that the trial court erred when it held him in contempt for alimony arrearage and failed to offset his arrearage by additional support payments he made post-divorce. We understand Husband‘s argument to be: (1) that the trial court erred by not modifying or terminating alimony payments due to Wife‘s remarriage, and, therefore, by holding him in contempt for not making alimony payments he was not required to make; and (2) that the factual finding that Husband‘s failure to pay was willful and blatant was unsupported by the record, in part because the record supports his assertion that he made substantial alimony overрayments prior to his underpayments. We need not address the first of these arguments because it is premised on his unpreserved contention that Wife‘s remarriage amounted to an unrebutted per se change in circumstances ending the alimony obligation. We therefore turn to his second argument that it was error for the trial court to find that his failure to pay was willful.
The basis for a finding of contempt is the willful disobedience by the party charged of an existing court order. Stone v. Stone, 111 N.H. 167, 168 (1971). Because the contempt power is discretionary, the proper inquiry is not whether we would not have found the respondent in contempt but whether the trial court unsustainably exercised its discretion. In the Matter of Giacomini & Giacomini, 150 N.H. 498, 500 (2004). When we review for an unsustainable exercise of discretion, we are deciding whether the record establishes аn objective basis sufficient to sustain the discretionary judgment made. In the Matter of Braunstein & Braunstein, 173 N.H. 38, 47 (2020).
The trial court signed Wife‘s proposed order on contempt, which included a number of findings that undermine Husband‘s assertion that certain payments were overpayments of alimony. The trial court‘s findings that some of the payments were used to cover expenses that Husband was obligated to pay pursuant to the divorce decree and that Husband had voluntarily agreed to pay for certain expenses related to the children are supported by the record. The trial court‘s further finding that Husband failed to demonstrate that he made any overpayments is also supported by the record. While Husband offered a chart into evidence that purportedly detailed what he had paid to Wife (or on hеr behalf) that exceeded what he owed in alimony, the trial court did not admit the chart into evidence because it had not been provided to opposing counsel in advance of the hearing. While Husband testified that he had made an aggregate overpayment of about $100,000 to Wife‘s benefit, after the trial court excluded the chart Husband did not offer evidence providing the amount and explaining the nature of each of those payments. Absent such evidence,
Furthermore, no evidence was presented that Husband had even notified—much less reached agreement with—Wife that his payments in excess of his alimony obligation would be a credit against his future obligation. Wife testified that the additional payments Husband had made were not alimony and that she was “blindsided” when Husband told her he would be reducing the alimony payments. In addition, Husband testified that due to a substantial tax bill his intention was to reduce alimony temporarily, that he was unable to keep up with the court-ordered payments, that his intention was to “be able to continue to keep up with that,” but that he thought that “there should be some sort of credit for the overpayment.” This testimony supports a finding that Husband reduced the alimony payments due to temporary financial strain and not because he believed that he was entitled to a credit for his alleged overpayments. This evidence also supports the trial court‘s factual finding that Husband‘s failure to pay was “blatant and willful.” Husband did testify that he understood the overpayments to be alimony; that he knew he needed to “prepay when [he] could, because there might be periods when [he] would need to cut it back“; that he understоod that his agreement with the Wife was “flexible“; and that he assumed that Wife would agree to a reduction when his business was not doing well. The trial court, however, was not required to believe and credit Husband‘s testimony characterizing the payments over Wife‘s testimony and the other evidence presented at the hearing. See In the Matter of Henry & Henry, 163 N.H. 175, 181 (2012) (factfinder entitled to accept or reject, in whole or in part, the testimony of any witness or party, and is not required to believe even uncontroverted evidence).
Because “conflicts in the testimony, questions about the credibility of witnesses, and the weight assigned to testimony are matters for the trial court to resolve,” see In the Matter of Kurowski & Kurowski, 161 N.H. 578, 585 (2011), and because the record establishes an objective basis sufficient to sustain the discretionary finding of contempt, Braunstein, 173 N.H. at 47, we must sustain the trial court‘s ruling finding the Husband in contempt.
Affirmed.
MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ., concurred.
Timothy A. Gudas,
Clerk