In the Matter of Frederick Wilkinson and Lisa Wilkinson ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2022-0547, In the Matter of Frederick
Wilkinson and Lisa Wilkinson, the court on October 12, 2023,
issued the following order:
The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The petitioner, Frederick Wilkinson (husband), appeals a final decree of
the Circuit Court (Forrest, J.), issued following a hearing, in his divorce from the
respondent, Lisa Wilkinson (wife). He challenges the trial court’s alimony award
and its denial of his motion for contempt. We affirm.
“The circuit court has broad discretion to award alimony.” In the Matter of
Routhier & Routhier, 175 N.H. 6, 15 (2022). “We review the court’s alimony
determination for an unsustainable exercise of discretion, and we will uphold its
factual findings unless they are unsupported by the evidence.” Id. “This
standard of review means that we review only whether the record establishes an
objective basis sufficient to sustain the discretionary judgment made, and we will
not disturb the trial court’s determination if it could reasonably have been made.”
In the Matter of Braunstein & Braunstein, 173 N.H. 38, 47 (2020). We defer to
the trial court’s judgment with respect to such matters as resolving conflicting
testimony, evaluating the credibility of witnesses, and determining the weight to
be accorded evidence. Id. “As the trier of fact, the trial court could accept or
reject, in whole or in part, the testimony of any witness or party, and was not
required to believe even uncontroverted evidence.” Id.We first address the husband’s argument that the trial court erred by
awarding alimony to the wife because she is cohabiting with an unrelated adult.
See RSA 458:19-aa, VII (Supp. 2022) (providing that the court may modify or
terminate alimony upon a finding of the payee spouse’s cohabitation). The
husband contends that the court’s alimony order is unjust because the wife had
been living with her boyfriend in the boyfriend’s home for approximately eight
months at the time of the final hearing, that they shared household expenses,
that the boyfriend helped financially support her, that they jointly used the
home, that they were in an intimate relationship, and that they publicly held
themselves out as a couple. See RSA 458:19-aa, VIII(a)-(f) (Supp. 2022)
(providing that the court shall consider such factors in determining whether
cohabitation exists, and that it shall find cohabitation “if there is a relationship
between an alimony payee and another unrelated adult resembling that of a
marriage, under such circumstances that it would be unjust to make an order for
alimony”).
Even assuming that the husband is correct that the statutory factors set
forth in subsections (a)-(f) of Paragraph VIII have been established by the
evidence, the statute also provides that the trial court may consider “[a]ny other
factors that the court finds material and relevant.” RSA 458:19-aa, VIII(g). Here,
there was evidence that the wife and boyfriend planned on her reimbursing him
for at least some of the financial assistance he had given her, that she would pay
rent to him when she was able to do so, and that she did not exercise control
over, for example, the decorations or utility providers in the home. The trial court
acknowledged their intimate relationship, but found, among other things, that
the wife “is seeking to obtain her own residence for herself and her daughter,”
and that their current living arrangement is “not a long-term situation.” These
findings are supported by the evidence.
Although the husband contends that the findings as to the intentions of
the wife and her boyfriend are inherently speculative, we note that it is the
province of the trial court to evaluate the credibility of the witnesses and to weigh
the evidence before it. See Braunstein, 173 N.H. at 47. Accordingly, the trial
court reasonably could have found that this was not a relationship “resembling
that of a marriage,” and that the circumstances were not such “that it would be
unjust to make an order for alimony.” RSA 458:19-aa, VIII. Furthermore, the
ultimate determination of whether to modify or terminate alimony based upon a
finding of cohabitation is a discretionary matter for the trial court. See RSA
458:19-aa, VII (providing that “the court may make orders for the modification or
termination of term alimony upon a finding of the payee’s cohabitation”
(emphasis added)); Appeal of Rowan, 142 N.H. 67, 71 (1997) (explaining the
general rule that the word “may” is permissive and indicates a discretionary
matter).1
Next, the husband argues that the trial court erred by “not considering [the
wife’s] capacity for employment in making its award of alimony.” He
acknowledges that the wife had been found to be disabled and incapable of full-
time work by the Social Security Administration, but contends that “the same
disability determination found that she was capable of part-time sedentary
work.” We are not persuaded. Contrary to the husband’s assertion, the trial
court expressly considered the wife’s capacity for employment, as well as the
disability determination by the Social Security Administration, and found that
the wife “is unable to be self-supporting at a standard of living that meets her
reasonable needs.” This finding is amply supported by evidence in the record.
1 To the extent that the husband argues that the trial court’s decision renders RSA 458:19-aa,
IX (Supp. 2022) a nullity, or that it divests him of future remedies, his arguments are not
preserved. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (“It is a long-standing
rule that parties may not have judicial review of matters not raised in the forum of trial.”); N.H.
Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002) (observing that, in order to satisfy
the preservation requirement, issues which could not have been presented to the trial court
before its decision must be presented to it in a motion for reconsideration).
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Accordingly, based upon our review of the record, we cannot conclude either that
the trial court’s findings are unsupported by the evidence, or that the court
unsustainably exercised its discretion by granting alimony to the wife; thus, we
will not disturb the court’s decision. See Routhier, 175 N.H. at 15; Braunstein,
173 N.H. at 47.
Lastly, the husband argues that the trial court erred by denying his motion
for contempt alleging that the wife violated the court’s anti-hypothecation order
when she spent a sum of money from her bank account. Although the husband
asserts that “[t]here is no evidence that all this money was spent for reasonable
living expenses,” see RSA 458:16-b, I (2018) (allowing a party to use assets which
would otherwise be subject to an anti-hypothecation order for, among other
things, “reasonable and necessary expenses of living”), the record demonstrates
otherwise. There was evidence before the court that, in addition to normal living
expenses, the wife lost most of her and her daughter’s personal possessions, and
needed to purchase such necessities as clothing, shoes, bedding, towels,
toiletries, a new cellphone, and other items. Additionally, the wife suffers from
medical issues that required her to purchase an expensive item of medical
equipment, and to regularly purchase a large assortment of consumable medical
supplies. On these facts, the trial court could reasonably have found that the
wife used the funds for reasonable and necessary living expenses, and, therefore,
we conclude that the husband has failed to demonstrate that the trial court
unsustainably exercised its discretion by denying his motion for contempt. See
In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 138 (2020) (holding that we
review a trial court’s ruling on a motion for contempt under our unsustainable
exercise of discretion standard); Gallo v. Traina, 166 N.H. 737, 740 (2014)
(holding that the appealing party has the burden of demonstrating reversible
error).
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
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