In Re Nassar
156 N.H. 769, 2008 N.H. LEXIS 21, 943 A.2d 740 (2008)
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Rule of Law:
In a no-fault divorce, a court cannot consider fault when determining alimony, nor can it base an award on the mere expectancy of future gifts from third parties or include an automatic cost-of-living adjustment untethered to the parties' actual financial circumstances.
Facts:
- George J. Nassar (husband) and Maureen Nassar (wife) were married in 1983 after living together for approximately ten years.
- Throughout their marriage, the husband's parents allowed the couple to live rent-free in a house they owned on Squam Lake.
- The couple lived a modest lifestyle; the wife worked as a waitress and the husband worked seasonal jobs, operating a boat tour in the summer and a ski check booth in the winter.
- In 2000, the husband pushed the wife, causing her to fall. She moved out for three weeks but returned, she testified, for the sake of their children.
- The husband began to suspect the marriage would fail sometime between 1995 and 2000 but did not communicate this to his wife.
- On March 15, 2005, the husband informed his wife that he was unhappy and wanted a divorce.
- After the divorce filing, the husband's parents initiated eviction proceedings against the wife, forcing her to move out of the Squam Lake house.
- Immediately after the wife vacated, the husband moved back into the house, executing a formal rental agreement with his parents for the first time.
Procedural Posture:
- George J. Nassar and Maureen Nassar filed for divorce in the Plymouth Family Division, a trial-level court in New Hampshire.
- The trial court granted the wife temporary alimony of $800 per month.
- The parties entered a partial stipulation on most issues, but the issue of alimony proceeded to a final hearing.
- The Family Division issued a final order awarding the wife permanent alimony of $1,100 per month, subject to an annual cost-of-living increase.
- The husband, George J. Nassar, appealed the final alimony order to the Supreme Court of New Hampshire.
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Issue:
Does a trial court abuse its discretion in awarding alimony by considering impermissible factors such as fault in a no-fault divorce, an automatic cost-of-living adjustment, and the potential for one party to receive future gifts from parents, and by ordering permanent alimony without sufficient findings to support it?
Opinions:
Majority - Duggan, J.
Yes. A trial court abuses its discretion by basing an alimony award on impermissible factors. First, when a court grants a divorce on the grounds of irreconcilable differences, fault may not be considered in determining alimony. The trial court erred by considering the husband's 'conduct' and the 'underlying circumstances giving rise to the divorce' as this was tantamount to an impermissible consideration of fault. Second, an alimony award cannot be subject to an automatic annual cost-of-living increase based on the Consumer Price Index, as any modification must be based on actual changes in the parties' financial circumstances, not on general economic trends. Third, an award of permanent alimony was unwarranted because the primary purpose of alimony is rehabilitative, and the record showed the wife was in good health with marketable skills and capable of becoming more self-sufficient. Finally, a court cannot factor in a party's mere expectancy of future gifts or support from third parties, such as the husband's parents continuing to provide housing, because such expectancies are speculative and beyond the party's control.
Analysis:
This decision significantly clarifies the boundaries of trial court discretion in awarding alimony in New Hampshire. It strictly enforces the prohibition against considering fault in no-fault divorces, preventing parties from introducing fault-like evidence under the guise of 'conduct' or 'circumstances.' The case establishes a new precedent by banning automatic cost-of-living adjustments for alimony, extending a principle previously applied to child support. It also reinforces that permanent alimony is an exception for spouses who cannot become self-supporting, not a default for long-term marriages, and aligns New Hampshire law with other jurisdictions by precluding consideration of speculative future gifts.
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