On May 30, 2014, the New Hampshire Supreme Court issued an opinion In the Matter of Lyon. This decision clarifies the standard to be applied in requests to extend or renew alimony. 

The Facts

Husband and Wife divorced in May 2007. They entered into a permanent stipulation that was incorporated into their divorce decree that required Husband to pay to Wife $3,000 per month in alimony from January 1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1, 2007, through June 30, 2012, “or until the death of either party, whichever first occurs.”

A month before the scheduled termination of the alimony, the Wife petitioned for an additional three years. She alleged that her newly diagnosed attention deficit hyperactivity disorder necessitated an extension of alimony so that she could afford her medication and finish her education. The Husband filed a Motion for Summary Judgment, arguing that the Wife had failed to establish an unanticipated or unforeseeable substantial change in circumstances. The trial court granted the motion and dismissed the petition.  

The Appeal

The Wife appealed and argued that the trial court erred by applying the standards that govern a motion to modify alimony to her petition to extend. Although the standard to modify required a person to prove that a substantial change in circumstances had occurred since the original award that made the amount of alimony either improper or unfair, she argued that she was not required to meet that test. Instead, she said that she was subject to the same standard as an initial award of alimony.

The Holding

The Supreme Court held that when a party seeks to extend or renew, either in modified or unmodified form, “the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount[,] . . . in the light of all the circumstances then existing.”

The Takeaway

The standard articulated in the Lyons decision will be easier to meet for alimony recipients as opposed to a substantial change in circumstance test.  This has the potential to create a chilling effect a person’s willingness to agree to pay alimony as one can be less certain of the end date for the payments. Even so, the recipient must still prove that justice requires an extension. While the facts do not require a substantial change in circumstances, it seems likely that the trial court would still examine all of the circumstances to determine why, if short term alimony was awarded, the recipient has not put him or herself into a position to be self-supporting.

 

This blog has been a great way to reach out to people who need information about divorce, parenting and family law, and it has been a great experience hearing feedback from colleagues and watching the number of readers grow throughout the years. I hadn’t considered branching out into You Tube until I read a blog post on Kevin O’Keefe’s Real Lawyers Have Blogs called Are Law Firms Underutilizing You Tube? The idea of a audio/visual piece to this blog appealed to me. Much like I like to hear the audio tour in an art museum instead of reading all the tags next to a painting because it is easier to absorb the information, I think that a video can help convey information in a good way.  

So without further ado, the following is my first You Tube video on the topic of completing your financial affidavit.

Click here for the Financial Affidavit form for theNew Hampshire Circuit Court, Family Division.

Thank you to Jeremy Collins at Ellipsis Entertainment for being easy to work with and producing a great product.

Clients often ask about including in their parenting plan a provision requiring both parents to contribute to a child’s extracurricular activity expenses and uninsured medical expenses. These issues were brought before the New Hampshire Supreme Court In the Matter of Cheryl Anne Coderre and Paul A. Coderre on September 30, 2002. The father appealed an by the trial court that ordered him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to the child support ordered under the child support guidelines.

First, the Court determined that uninsured medical expenses are extraordinary expenses that are not included in child support guidelines. The Court looked at the statute regulating child support RSA 458-C and determined that the calculations under the guidelines are presumed to be correct but that the court may adjust the guidelines either upward or downward if it deems this deviation is warranted. More specifically looking at RSA 458-C:5, I(a) which states that the trial court “may deviate from the guideline support amount if it finds that a child will incur ongoing extraordinary medical expenses.” Therefore, the Court upheld the trial court’s order for payment of uninsured health insurance.

Additionally, the Court held that “extracurricular activity expenses are part of basic guidelines support” because they fall into the same category of such basic support as food, shelter and recreation. Because there is no language to the contrary in the guidelines the Court concluded that extracurricular activity expenses are included in the parties’ total support obligation. Therefore, the Court reversed the trial court’s decision on this matter.

In sum, a court has discretion to award uninsured medical expenses that are separate from the child support award determined by the guidelines. On the other hand, extracurricular activity expenses are considered to be included in the child support guidelines and may not be awarded separately.

Blog credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

Once the plaintiff has proved that the defendant has abused her within the meaning of the statute, the court may grant a final restraining order that will remain in effect for one year. The court has the authority to order the following protective orders:

  • Restrain the defendant from abusing the plaintiff, plaintiff’s relatives or plaintiff’s household members
  • Restrain the defendant from entering the place where the plaintiff resides (except to retrieve personal property allowed by the court and accompanied by a police officer)
  • Restrain the defendant from contacting the plaintiff or entering the plaintiff’s place of employment, school, or any specified place frequented regularly by the plaintiff or by any family or household member. 
  • Restrain the defendant from taking, converting, or damaging plaintiff’s property or property he or she may have an equitable interest in
  • Direct the defendant to relinquish to the peace officer deadly weapons that are in the possession or control of the defendant

Additionally, the court has the authority to issue orders concerning parenting, support, personal property and use of the family home. These additional orders may include the following:

  • grant primary parenting responsibility to either party, and make orders for parenting time
  • direct the defendant to pay support to the plaintiff or minor children (if the defendant has a legal duty to support the plaintiff or minor children)
  • order the defendant to make automobile, insurance, health care, utilities, rent, or mortgage payments
  • order the defendant to pay monetary compensation to the plaintiff for losses directly resulting from the abuse
  • order the defendant to take a batterers intervention course or counseling
  • grant exclusive use of the family home to the plaintiff (unless the plaintiff has no legal right to reside in the home)
  • grant use of household furniture or an automobile to the plaintiff (unless the plaintiff has no legal interest in the property and the defendant has no legal obligation to support)
  • order the defendant to pay the plaintiff’s reasonable attorney’s fees 

Although the court may make these orders in a final restraining, the order is only good for one year. Therefore, after the year has passed, the orders will expire. The plaintiff should take care to make plans to have additional orders in place when the restraining order expires, either through a divorce or parenting petition, to ensure the defendant’s continued obligations for support and to make certain there are established parenting rights.