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Bar News - March 21, 2003 NH Supreme Court Opinion Summaries DIVORCE – MARITAL ASSETS DUGGAN, J. The respondent husband appealed an order of the superior court (McGuire, J.) approving the recommendations of the Marital Master (Leonard S. Green, Esq.) in his divorce action. He argued that the trial court erred in failing to consider tax consequences when distributing the parties’ marital assets. The supreme court affirmed. During the final hearing of divorce proceedings, the respondent did not object to the petitioner being awarded the marital home so long as he received his equity in the home and as relieved from mortgage liability. The respondent expressed further concern for tax penalties should he have to withdraw from tax-deferred assets for a down payment. The trial court awarded the marital home and its equity to the petitioner and denied the respondent’s request that the petitioner be required to refinance the home to remove the respondent’s name from the mortgage. The petitioner and respondent each received approximately one-half of the value of the total assets. On appeal the respondent argued that the trial court’s distribution of marital assets was not equal because of the negative tax consequences he would incur. The court held that a court in a divorce action may only consider potential taxes in valuing marital assets if a taxable event is certain to occur shortly after the divorce. Nothing in the trial court’s financial decree required the respondent to take actions which would cause negative tax consequences. The court thus concluded that the court did not err by not taking tax consequences into account.
REGIONAL REFUSE DISPOSAL DISTRICTS – INTERSTATE SOLID WASTE COMPACT DUGGAN, J. The petitioner, Peter Franklin, appealed an order of the Superior Court (Morrill,J.) denying his petition seeking access to bills incurred for legal work performed for the NH/VT Solid Waste Project (Project). The court vacated and remanded. Pursuant to the Interstate Solid Waste Compact, RSA ch. 53-D (1991), two regional refuse disposal districts, one each from New Hampshire and Vermont, entered into agreement to form the Project. The New Hampshire District was created by fifteen municipalities, is recognized as "a body politic and corporate" RSA 53-B:7(1991) (amended 1994, 1996), and has the powers of and operates like a municipality. Its operating powers and duties are vested in and exercised by a Regional District Committee. Pursuant to Vermont law, the Vermont District is similarly constituted. Cooperative action is authorized by a vote of the Joint Meeting (representatives of the NH and VT districts) and is implemented by the Executive Committee (chair and vice chair from each district committee and three members elected annually by each district committee). On appeal, the petitioner, who is not a member of the executive committee, argued that the superior court erred when it concluded that he was not a client of the attorneys providing legal services to the Project. He contended that as a member of the governing body for the New Hampshire District, he is a client of the work performed for entities under the Project and is therefore entitled to unfettered access to legal bills. The respondent argued that the Project possesses sufficient independent status to be recognized as the client, and that an attorney represents the Project separate from its members. To determine whether the petitioner is a client of the attorneys who provide services to the Project, the court examined the nature of the Project and its undertakings. Because the Project has no legal status separate from the districts and resembles a joint venture, the court determined that each of the Project’s individual members, the New Hampshire District and the Vermont District, and their joint venture, the Project, are each considered to be the "client" relative to the confidential communications protected by the attorney-client privilege. As such, each district, individually and jointly as the Project, may have access to the Project’s legal bills. Thus, the court determined that the trial court erred in concluding that only the Project, through the Executive Committee and the Joint Meeting, could determine access to the legal bills.
ABUSE OR NEGLECT PROCEEDINGS – DUE PROCESS NADEAU, J. Shelby R’s stepfather appealed from a proceeding under the Child Protection Act. See RSA ch. 169-C (2002). The division for children, youth and families (DCYF) filed a petition in district court alleging that Mark H. had abused Shelby R. Following a preliminary hearing, the court ordered Mark H. not to reside in the house or have any contact "whatsoever" with Shelby R. Following an adjudicatory hearing, the district court found that Shelby was abused by Mark H. The district court again ordered Mark H. to have "no contact whatsoever with Shelby." Pursuant to RSA 169-C:28, Mark H. received a de novo review in Superior Court. He filed a "Motion for Appointment of Paula Werme As Counsel," which was accompanied by a financial affidavit. The Superior Court (Dalianis, J.) denied the motion holding that RSA 169-C:10 does not authorize appointment of counsel for Mark H. Following an adjudicatory hearing in which Mark H. was represented by Attorney Werme, the Superior Court found that Mark H. had sexually abused Shelby R. On appeal, Mark H. argued that by prohibiting the court from appointing counsel for indigent stepparents in abuse or neglect proceedings, RSA 169-C:10, II(a) violates the Due Process Clause. The Child Protection Act requires the court to appoint counsel to represent an indigent parent who has been accused of abusing or neglecting his or her own child, see RSA 169-C:10, II(a), and further states that the court "may appoint" counsel for an indigent parent not abused of abuse or neglect in order to protect the parent’s interests. Stepparents are not included in the statute’s provision of counsel. The court agreed with Mark H. that accused stepparents have a legally protected interest at stake in abuse and neglect hearings. The court looked at a balancing of three factors to determine whether the Due Process Clause requires court-appointed counsel for an indigent stepparent: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The court concluded that stepparents are entitled to protection under Part I, Article 15 of the State Constitution. Accordingly, the court concluded that due process under the State Constitution requires the appointment of counsel to stepparents accused of abuse or neglect, under RSA chapter 169-C, and determined that RSA 169-C:10, II is inconsistent with the requirements of due process. DUGGAN, J. Concurred in part and dissented in part. The dissent disagreed with the conclusion that the Due Process Clause in Part I, Article 15 of the New Hampshire Constitution requires court-appointed counsel in every case charging an indigent stepparent with abusing or neglecting his stepchild.
DIVORCE – MARITAL ASSETS BROCK, C.J. The petitioner, Christopher W. Crowe, appealed the divorce decree of the Littleton Family Division (Cyr, J.) awarding the respondent, Jennifer M. Crowe, alimony, child support, and approximately twenty-five percent of the value of marital assets. The court affirmed. After living together and having a child, the parties married. The petitioner is the sole owner of a logging operation and a trucking company. The respondent attended cosmetology school, at the petitioner’s expense, but did not pursue the profession due to the birth of the couple’s child and the limited income generated from the profession. While the parties lived together, the petitioner financed and significantly contributed to building a home. The respondent helped paper walls, paint, tile, remove construction debris, and prepare the grounds, in addition to caring for the couple’s child and occasionally caring for the petitioner’s children from a former marriage. The petitioner also acquired land and a rental property during the parties’ relationship. The petitioner filed for divorce, which the trial court granted on the grounds of irreconcilable differences. The court awarded joint legal custody of their child, granted the respondent primary physical custody of the child, and ordered the petitioner to pay child support. The petitioner was also ordered to pay the respondent $140,000 as her equitable share of the marital assets, $100 per week in alimony for thirty-six months provided that she remains enrolled in a paralegal studies program, and her health insurance premium for thirty-six months. The court divided the furniture and personal property between the two parties and awarded the petitioner the marital home and rental property. On appeal the petitioner argued that the trial court: (1) applied an incorrect standard in distributing the marital assets, considering the short duration of the marriage and the fact that he developed the assets prior to the marriage; (2) erroneously subsumed the period of premarital cohabitation into the duration of the marriage and treated as marital assets property acquired during that time period; (3) improperly determined his income for purposes of calculating child support; 4) erroneously failed to deduct the alimony awarded to the respondent from his income in calculating child support; and (5) erred because the disposition of property, alimony, and child support, in its entirety, was excessive. As to the property settlement, the court found that the statute defining property does not classify property based upon when or by whom it was acquired, but rather assumes that all property is susceptible to division. See RSA 458:16-a, I (Supp.2001). Further, the statute presumes that an equal distribution of marital property is equitable, absent special circumstances. See RSA 458:16-a, II (Supp. 2001). The length of the marriage and the contributions of each party are only two of the factors that the court can consider in determining an equitable division of assets. See id. After reviewing the record, the court declined to say that the trial court’s division of property was an unsustainable exercise of discretion. As to the petitioner’s contention regarding the trial court’s treatment of property acquired while the parties lived together before marriage, the court found that the trial court properly considered the contributions made by each party and concluded that even had the parties not lived together prior to marriage, the trial court’s decision would have been a sustainable exercise of discretion. As to the child support order, the court concluded that the trial court’s determination of income was supported by the record and did not constitute an unsustainable exercise of discretion. The court disagreed that alimony should have been deducted from the petitioner’s gross income. Since the statute is silent as to the timing of the calculations of child support and alimony, the court concluded that the provision was ambiguous. See RSA 458-C:2, I(a). The court held that the alimony ordered in the instant divorce decree was not the type of support contemplated by RSA 458-C:2, I(a). As to the excessiveness of the entire order, the court then examined the alimony award and declined to say that the alimony award was an unsustainable exercise of discretion. The court further declined to say that the decree in its entirety was excessive.
WRIT OF EXECUTION – PROPERTY LIEN NADEAU, J. The plaintiff recovered a judgment against the defendant in 1989. The plaintiff filed a motion for post-judgment relief in 1999, which requested that the superior court renew a writ of execution issued in 1990, and direct the sheriff to satisfy the renewed writ by levying upon the defendant’s property in Conway. In addition, the motion sought a determination as to whether his prior recorded execution created a lien upon the defendant’s property, and if so, the lien’s duration. The Superior Court (O’Neill, J.) denied the motion. The court affirmed. The plaintiff obtained a judgment against the defendant in January 1989. In March 1989, the trial court issued a writ of execution which went unsatisfied. In March 1990, the trial court issued a second writ of execution, which was recorded and levied against the defendant’s property. In 1990, following a bankruptcy that was filed prior to levy against the real estate, the second writ of execution was returned unsatisfied. The plaintiff filed a proof of claim in the bankruptcy proceeding alleging he was a secured lien creditor. The bankruptcy trustee abandoned the defendant’s real estate in 1993 and the defendant’s debts were discharged. The defendant filed for post-judgment relief in 1999. On appeal, the plaintiff argued that the trial court erred as a matter of law by ruling that the 1990 writ of execution had expired and the motion to renew the writ was barred by the statute of limitations. See RSA 527:2, :6 (1997). The plaintiff argued that the recording of the second writ of execution and the subsequent attempt to levy upon the property created an execution lien. He contended that his lien survives until the underlying judgment is satisfied or until the twenty-year limitation period for actions of debt upon a judgment expires. See RSA 508:5 (1997). The plaintiff also asserted that the defendant’s bankruptcy proceeding stayed the second writ of execution and levy. The court rejected the plaintiff’s argument that an execution lien is governed by the limitation period for actions of debt upon a judgment. See RSA 508:5. The court adopted the principle that absent a statute to the contrary, an execution lien expires on the return day of the writ of execution upon which the lien is based, or when the writ is returned unsatisfied. The court determined that just as levy may not be supported by an expired or unsatisfied execution, neither may an execution lien. Because the plaintiff’s second writ of execution was returned unsatisfied, the plaintiff’s motion for post-judgment relief, filed about nine years after the second writ was returned, fell far outside the prescribed limitations period for seeking issuance of a successive writ of execution. See RSA 527:6. The plaintiff had no valid and enforceable writ of execution and thus any execution lien had terminated. Therefore, the trial court did not err in denying the plaintiff’s motion for post-judgment relief. The court found unavailing the plaintiff’s contention that the defendant’s bankruptcy stayed the execution.
PUBLIC EMPLOYEE LABOR RELATIONS – PROBATIONARY EMPLOYEES BROCK, C.J. The petitioner, the International Brotherhood of Police Officers (IBPO), appealed a decision of the public employee labor relations board (PELRB) which dismissed an unfair labor practice charge after concluding that "probationary employees" are not protected under the Public Employee Labor Relations Act. See RSA chapter 273-A:1 (1999 & Supp. 2001). The court reversed and remanded. The IBPO filed an unfair labor practice charge against the Town of Atkinson alleging an employee’s wrongful termination because of his union activity, in violation of RSA 273-A:5, I(a), (b), (c), & (g) (1999). Following a hearing, the PELRB found the employee to be a "probationary employee," because he had not completed twelve months of employment. See RSA 273-A:1, IX. Because the employee was probationary, the PELRB dismissed the charge and found that the employee was not covered by the Public Employee Labor Relations Act (PELRA). On appeal the IBPO argued that RSA 273-A:5, I(c) prohibits discrimination in hiring and tenure for the purpose of encouraging or discouraging membership in any employee organization. The town argued that because the PELRA excludes probationary employees from the definition of public employees, RSA 273-A:5 offers no protection in their hiring or tenure, and that "employee" is an abbreviated form of "public employee." The court disagreed with the town’s argument, and concluded that the language of RSA 273-A:5, I(c) prohibited employers from discriminating in the hiring of employees for the purpose of discouraging membership in any union. Since a person applying to be hired by a public employer will not usually already be a "public employee," the court concluded that the legislature intended to prohibit a public employer from refusing to hire an applicant based on the applicant’s union view or activities. The court thus held that subsection I(c) prohibits discrimination against probationary employees as well. DISSENT: Nadeau, J. The dissent agreed with the town because the Public Employee Labor Relations Act specifically excludes probationary employees from the definition of public employees, with no protection in their hiring or tenure in RSA 273-A:5.
AGGRAVATED FELONIOUS SEXUAL ASSAULT – FELONIOUS SEXUAL ASSAULT – DOUBLE JEAPORDY NADEAU, J. The defendant was convicted in Superior Court (Fauver, J.) of nine counts of aggravated felonious sexual assault, see RSA 632-A:2 (1996) (amended 1997, 1998, 1999), and four counts of felonious sexual assault, see RSA 632-A:3 (1996) (amended 1997). The court reversed and remanded. The court determined that the jury could have found that the defendant, at age fourteen, began sexually molesting his six-year old cousin, and repeatedly molested his cousin for the next five years. After the victim reported the abuse, the defendant was arrested. Nine indictments charged the defendant with engaging in specific sexual acts against the victim for a period of one to two years, and four indictments charged the same acts but over a broader time. At trial, the defendant argued that the State would have to either proceed on single-year or multiple-year indictments. The State argued that the temporally broad indictments were alternative theories to the temporally narrow indictments. The court concluded that the broader indictments were appropriate as alternative theories and that if the defendant were convicted on the nar rower indictments, then he could not be sentenced on the alternative theories. The State later conceded that the trial court violated the double jeopardy provisions of the United States and New Hampshire Constitutions when it sentenced the defendant on both the temporally broad and narrow indictments. The State filed a motion to vacate the sentences stemming from the broad indictments. The trial court granted the State’s motion and vacated those sentences. On appeal, the defendant argued that: (1) the four comprehensive convictions should be vacated with prejudice and the nine remaining convictions vacated and remanded for a new trial as they collectively violated the Double Jeopardy Clause of the New Hampshire Constitution, N.H. CONST. pt. I, art. 16; (2) the trial court erred by deferring until the close of the evidence the defendant’s motion to dismiss an indictment for attempted aggravated sexual assault, see RSA 629:1 (1996) (amended 1999); RSA 632-A:2; and (3) the trial court erred by prohibiting the defendant from questioning the victim as to her familiarity with sexual matters, independent of her contact with the defendant. The court found that vacating the overlapping sentences does not address the defendant’s challenge to the State’s indictment scheme, and agreed with the defendant’s argument that prosecuting him under both temporally narrow and broad indictments constituted a double jeopardy violation. Thus, the court reversed the convictions entered upon temporally broad indictments. As to whether the indictment scheme violated due process, the court held that charging the defendant under both temporally narrow and temporally broad indictments was confusing and compromised the jury’s ability to consider the matter intelligently and dispassionately. Therefore, the court reversed and remanded the remaining convictions. The court held that the decision to defer granting the motion to dismiss until the close of the evidence impermissibly cast the defendant in a negative light and increased the likelihood of jury prejudice. Therefore, the trial court’s decision to wait until the conclusion of the evidence to dismiss the indictment was an unsustainable exercise of discretion. The court left it to the trial court, upon retrial, to determine whether any evidence of the victim’s exposure to challenged materials is admissible.
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