Family Law

Sam Harkinson Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

No. 2017-0697
March 29, 2019
Vacated and Remanded.

  • Whether a conditional deferred employment retirement benefit that was agreed to by an employer prior to a divorce decree, but was not to be paid until after a divorce decree and upon conditions being met should be construed as marital property for purposes of equitable apportionment, and whether certain household, medical and dental expenses were ascertainable for purposes of an awarding of alimony.

Ms. Marian Richard (Respondent) appealed a decision of the family division approving a final divorce decree that classified certain conditional deferred compensation and/or severance benefits to be paid to Mr. Mitchell Cohen (Petitioner) as future income, rather than as marital property. The Respondent also appealed the family trial court’s decision on failing to award certain estimated expenses relating to home repairs, dental and medical expenses.

The Court addressed the issue relating to the conditional deferred compensation and/or severance payments first. On appeal, Respondent argued that the decision to treat payments that were to be made under the deferred compensation agreement as future income and, therefore, excluding them from equitable apportionment, was done in error. In addressing the issue and in concluding that the trial court had erred, the Court examined the applicable statutes. While the Petitioner argued that the deferred compensation agreement was different than the other retirement benefits enumerated by statute, i.e. vested pension, non-vest pension, or other retirement benefits, the Court disagreed. In concluding that the deferred compensation agreement was to be distributed with the rest of the marital property, the Court held that relevant inquiry is “…whether the employee has a present interest in a retirement benefit pursuant to an established plan at the time of the divorce.” The Court further stated that “…a spouse’s present inability to meet a condition precedent necessary to receive a retirement benefit does not exclude the benefit from marital property, where, as here, the spouse maintains a present interest in receiving the benefit at a later date…”

The Court dismissed the Petitioner’s further arguments, concluding that the arguments raised cite cases from jurisdictions that employ markedly different statutory provisions than those found in New Hampshire. The Court applied a similar logic and analysis in determining that the Petitioner’s severance agreement also should be included as a marital asset, subject to equitable apportionment.

The Respondent also argued on appeal that the trial court erred when it failed to award her with certain speculative medical/dental care expenses as well as household expenses. While concluding that the trial court’s order as it relates to medical and dental care expenses were sustainable under the record, the Court disagreed that the record supported the same conclusion on the household expenses, specifically citing the words in the order as vague and, therefore, remanded the case for further findings related to those expenses.

 

Joshua H. Bearce on the brief, Ronald J. Caron on the brief and orally, both of Devine, Millimet & Branch, Professional Association for the Petitioner. Marsha V. Kazarosian on the brief, Janet E. Dutcher on the brief and orally, both of Kazarosian Costello, LLP, for the Respondent.