In the Matter of Mitchell Cohen and Marian Richards

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court-Merrimack Family Division
No. 2017-0697

IN THE MATTER OF MITCHELL COHEN AND MARIAN RICHARDS

Argued: January 10, 2019
Opinion Issued: March 29, 2019

Devine, Millimet & Branch, Professional Association, of Manchester
(Joshua H. Bearce and Ronald J. Caron on the brief, and Mr. Caron orally), for
the petitioner.

Kazarosian Costello LLP, of Haverhill, Massachusetts (Janet E. Dutcher
and Marsha V. Kazarosian on the brief, and Ms. Dutcher orally), for the
respondent.

DONOVAN, J. The respondent, Marian Richards, appeals an order of the
Circuit Court (Introcaso, J.) approving a divorce decree recommended by the
Judicial Referee (Love, Esq.). On appeal, the respondent argues that the trial
court erred by: (1) improperly excluding certain estimated expenses claimed by
the respondent in determining the alimony award; (2) classifying as income,
rather than marital property, payments the petitioner, Mitchell Cohen, may
receive pursuant to deferred compensation and severance agreements; and (3)
improperly calculating the respondent’s share of those payments, if the court
properly classified them as income. We vacate and remand.

The record supports the following undisputed facts. The parties met in
2004 and married in 2006. In 2015, they separated and the petitioner initiated
divorce proceedings. The petitioner is a physician who has been employed by
SJ Physician Services, Inc. (SJ) since 1994. The respondent was unemployed
throughout most of the marriage but obtained employment approximately 18
months after the parties separated. At the time of the trial court’s final divorce
decree, the petitioner was 58 years old, and the respondent was 61 years old.

In 1996, SJ and the petitioner entered into a “Deferred Compensation
Agreement,” by which the petitioner will receive a “retirement benefit” or,
alternatively, a “death benefit,” upon meeting certain conditions. Pursuant to
this agreement, the petitioner became eligible to receive deferred compensation
payments of $100,000 a year, in the form of monthly payments, for a period of
ten years upon reaching his 21st employment anniversary with SJ in 2015.
However, these payments are conditioned upon the petitioner’s continued
employment by SJ until his age of retirement, which is defined as the first day
of the month following the petitioner’s 65th birthday. Alternatively, if the
petitioner dies before he reaches retirement age, his named beneficiary will
receive the 10-year payment of $100,000 on a monthly basis or in a lump sum.

Additionally, pursuant to a separate severance agreement with SJ, dated
July 2013, if the petitioner’s employment with SJ is terminated without cause
prior to his retirement, SJ is obligated to pay him a scheduled, lump sum
payment, based upon the petitioner’s length of employment. If the petitioner
dies within 90 days of the scheduled payment, the lump sum will be paid to the
petitioner’s named beneficiary.

In the divorce proceeding, the parties agreed that an award of alimony
was warranted but disagreed as to the amount and duration of the award. The
parties’ proposals also differed as to the disposition of the deferred
compensation and severance payments. The respondent sought a 50%
distribution of the amount of any deferred compensation or severance pay that
accrued between the date of the marriage and the date the petitioner filed the
divorce petition, in the event the petitioner receives either of these payments.
See RSA 458:16-a, II (2018) (requiring marital property to be equitably divided
between the parties in a divorce action). The petitioner, on the other hand,
proposed that any payments he receives as deferred compensation or severance
pay should be paid to the respondent as “[a]dditional [a]limony,” calculated as
10% of the gross sum of the deferred compensation and severance pay that
accrued during the parties’ 9-year marriage.

The trial court awarded the respondent alimony, payable until her
attainment of full retirement age, but awarded less than she requested in her
proposed divorce decree. In determining the alimony award, the trial court
considered the respondent’s age, the property awarded to her by the divorce
decree as a future source of income, her available income from post-separation
employment, and her expenses. The court did not consider certain unspecified
expenses relating to the respondent’s home, which the trial court characterized

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as “extraordinarily high” and “voluntarily” incurred, or “a portion of the
expenses allocated for anticipated future uninsured health/dental care,” which
the trial court described as “speculative.”

With respect to its division of the marital property, the trial court
awarded “slightly more of the assets” to the respondent, giving “greater weight
. . . to the fact that the [respondent] is closer to retirement and has [fewer]
opportunit[ies] to acquire more assets in the future.” See RSA 458:16-a.
Assets subject to this division included the value of retirement and tax-deferred
accounts, such as 401(k) plans and IRA accounts, and death benefits available
to the petitioner through his employment, including “death benefits related to
deferred compensation and severance income.” However, the trial court
considered any payments the petitioner may receive from the retirement benefit
under the deferred compensation agreement or the severance agreement as
income rather than marital property, reasoning that “it would be fairer for
these ‘benefits’ to be treated as income” given “the terms under which these
plans may be implemented.”

Based upon this reasoning, the trial court awarded the respondent
“Deferred Compensation Alimony” and “Severance Alimony,” in addition to the
base alimony award, should the petitioner receive payments under either
agreement. The trial court adopted the petitioner’s method of calculating the
additional alimony, but ordered the petitioner to pay the respondent 17%,
rather than 10%, of the gross sum of the deferred compensation and severance
pay that accrued during the parties’ marriage. The petitioner’s obligation to
pay this additional alimony, should he receive payments pursuant to either
agreement, expires upon the death of either party or the respondent’s
remarriage.1 Following the trial court’s issuance of the final divorce decree, the
respondent moved to reconsider. The trial court denied the motion, and this
appeal followed.

On appeal, the respondent raises three challenges to the trial court’s
divorce decree. First, she argues that the trial court erred when it excluded her
household, medical, and dental expenses in its alimony calculation without
setting forth any factual support for its ruling. Second, she argues that the
trial court erred when it considered the payments the petitioner may receive
under the deferred compensation and severance agreements as income rather
than marital property subject to equitable distribution. See RSA 458:16-a.
Finally, she argues that, even if the trial court correctly categorized the deferred
compensation and severance payments as income, the trial court erred when it
arbitrarily reduced her alimony award in light of those payments.

1 Unlike the base alimony award, however, the petitioner’s obligation to make these additional
alimony payments to the respondent does not appear to end upon her attainment of full
retirement age.

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 In a divorce case, the trial court has broad discretion to determine and
order alimony payments; its determination of alimony is based primarily on the
parties’ income and need. See In the Matter of Nassar & Nassar, 156 N.H. 769,
772-73, 777 (2008) (the primary purpose of alimony is rehabilitative); RSA
458:19-a (Supp. 2018). However, unlike alimony, the trial court has a
statutory obligation to equitably apportion marital property, In the Matter of
Hampers & Hampers, 154 N.H. 275, 286 (2006), which includes any property
acquired up to the date of a decree of legal separation or divorce. See In the
Matter of Heinrich & Heinrich, 164 N.H. 357, 362 (2012); RSA 458:16-a. Thus,
the trial court must first determine, as a matter of law, what assets constitute
marital property under RSA 458:16-a, I. See In the Matter of Goodlander &
Tamposi, 161 N.H. 490, 495 (2011); RSA 458:16-a, I (setting forth types of
assets that constitute marital property). Once the trial court determines the
parties’ marital property, it then exercises its discretion to equitably distribute
those assets. See Goodlander, 161 N.H. at 495; RSA 458:16-a, II (standard for
equitably dividing marital property). When a party requests alimony, the trial
court may exercise its discretion by ordering an alimony award, considering,
inter alia, the marital property awarded to each party and the parties’ sources
of income and need. See Nassar, 156 N.H. at 772-73; RSA 458:19-a.

Accordingly, we first determine whether the trial court erred in
classifying the deferred compensation and severance payments as income
rather than marital property. We review de novo a trial court’s determination
of what assets constitute marital property under RSA 458:16-a, I. Goodlander,
161 N.H. at 495. Because marital property is defined by statute, resolution of
this issue requires that we engage in statutory interpretation. In the Matter of
Eckroate-Breagy & Breagy, 170 N.H. 247, 249 (2017). In matters of statutory
interpretation, we are the final arbiter of the intent of the legislature as
expressed in the words of the statute and considered as a whole. Id. We
interpret legislative intent from the statute as written, and we will not consider
what the legislature might have said or add words that the legislature did not
include. Id. Moreover, we interpret statutes in the context of the overall
statutory scheme and not in isolation. Id. at 250.

Pursuant to RSA 458:16-a, I, “all tangible and intangible property and
assets, real or personal, belonging to either or both parties, whether title to the
property is held in the name of either or both parties” is subject to equitable
distribution. Under RSA 458:16-a, I, intangible marital property “includes, but
is not limited to, employment benefits, vested and non-vested pension or other
retirement benefits, or savings plans.” Based upon this broad statutory
language, we have previously adopted the “mechanistic approach” to determine
whether an item constitutes marital property. Heinrich, 164 N.H. at 360-61.
Under this approach, property subject to equitable distribution includes any
property acquired before the decree of legal separation or divorce. Id. at 361.
Thus, “future earnings of a spouse from employment are not considered to be
property at the time of the divorce.” Id. at 362 (quotation omitted).

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 On this basis, the petitioner argues that the trial court correctly
considered payments under both agreements as income because the petitioner
did not acquire the payments or meet the conditions that would entitle him to
the payments prior to the divorce. Therefore, the petitioner asserts that these
payments were a mere “expectancy” at the time of the divorce, and,
accordingly, “represent future income” that will be “paid in exchange for future
services.”

The statute does not expressly state whether conditional, contractual
payments, which a spouse has yet to acquire or become entitled to acquire at
the time of the divorce, constitute marital property. See RSA 458:16-a, I.
However, the statute’s non-exhaustive list of intangible marital property is
instructive in determining the scope of the general provisions of the statute.
See Kurowski v. Town of Chester, 170 N.H. 307, 311 (2017) (when specific
words in a statute follow general ones, the general words are used to embrace
only objects similar in nature to those enumerated by the specific words).
When a statute contains a non-exhaustive list of subjects, we have previously
applied the principle of ejusdem generis to determine whether a non-
enumerated subject is similar in nature to the enumerated subjects, and thus
within the scope of the statute. Id. Therefore, we employ the principle of
ejusdem generis to assess whether the conditional payments under the
deferred compensation and severance agreements are similar in nature to the
other enumerated property, and thus fall within the scope of RSA 458:16-a, I.2
Id.

We begin first with the “retirement benefit” under the deferred
compensation agreement. The statute expressly includes “vested and non-
vested pension or other retirement benefits” as intangible marital property.
RSA 458:16-a, I (emphasis added). A pension plan, “in its simplest form, is a
promise by the employer to pay a periodic benefit (usually for life) to employees
who meet the requirements set forth in the plan.” Steven R. Brown, An

2 In In the Matter of Preston and Preston, 147 N.H. 48 (2001), we declined to utilize the doctrine of
ejusdem generis to determine whether a husband’s annuity constituted marital property. Id. at
51. The annuity, however, was awarded to the husband in a settlement agreement executed
during the marriage. Id. at 48-49. Because “[i]t was the legislature’s intent that any property
acquired up to the date of a decree of legal separation or divorce would be subject to equitable
distribution,” we concluded that the annuity constituted marital property “regardless of whether
[it] resemble[d] the items listed in RSA 458:16-a, I.” Id. at 51.

Here, we are determining for the first time whether conditional payments, based upon
contractual agreements executed prior to the divorce, constitute marital property acquired prior to
the divorce, even though the petitioner did not receive the payments themselves or meet the
conditions that would entitle him to the payments during the marriage. Because the statute is
silent on this issue, the intangible property enumerated in the statute provides guidance on when
a benefit is considered to be “acquired” under the statute. Therefore, unlike in Preston, we
conclude that employing the doctrine of ejusdem generis is necessary to determine whether the
payments at issue here were “acquired” prior to the divorce.

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Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and
Post-Judgment Partition Action: Cures for the Inequities in Berry v. Berry, 39
Baylor L. Rev. 107, 110 (1987) (quotations omitted). Typically, the requirement
the employee must meet to become eligible to receive payments under the plan
is to complete a requisite term of employment. See Bender v. Bender, 785 A.2d
197, 203, 211 (Conn. 2001). Once an employee meets this requirement,
payments under a pension plan typically do not commence until the employee
reaches retirement age or elects to retire. See Cohen v. Cohen, 937 S.W. 2d
823, 826 (Tenn. 1996).

Accordingly, a “vested” pension plan is one in which the employee has
attained the eligibility to receive pension payments upon retirement by
reaching the requisite term of employment. See Am. Fed’n of Teachers — N.H.
v. State of N.H., 167 N.H. 294, 302, 304 (2015) (“vesting” often refers to the
period provided by a plan for which an employee must work to become eligible
for a pension or other retirement benefit provided by the employer if and when
the employee attains retirement age). A non-vested pension, therefore, “is a
pension that has not fulfilled the time period requirement.” Grode v. Grode,
543 N.W. 2d 795, 802 (S.D. 1996); see Bender, 785 A.2d at 212 (describing
unvested pension benefits as “dependent on certain future contingencies such
as length of service and age”). Therefore, when an employee terminates
employment before completing the required term of employment under a
pension plan, the employee relinquishes any interest in receiving pension
payments from the employer. See Bender, 785 A.2d at 210.

By including “non-vested pension or other retirement benefits,” the
statute demonstrates that, at the time of the divorce, a spouse need not acquire
either a right to or a specified interest in, a pension or retirement benefit itself,
or the eligibility to receive the benefit, for it to constitute marital property
subject to equitable division. See Halliday v. Halliday, 134 N.H. 388, 391
(1991) (“the nature of the pension as vested or non-vested is not a legal
distinction under the statute”); see also In the Matter of Valence and Valence,
147 N.H. 663, 667 (2002) (unvested stock options constitute intangible marital
property). Rather, the spouse need only have acquired a sufficient interest in
receiving the retirement benefit at the time of the divorce based upon the
express terms of the benefit plan. RSA 458:16-a, I; see Bender, 785 A.2d at
210 (“the defendant’s expectation in his [non-vested] pension plan, as a
practical matter, is sufficiently concrete, reasonable and justifiable as to
constitute a presently existing property interest for equitable distribution
purposes”); cf. Goodlander, 161 N.H. at 495-96 (distributions from a trust at
the discretion of the trustee was not a fixed, certain and absolute right and was
therefore a “mere expectancy,” not marital property). Therefore, 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 pursuant to the terms of the benefit plan. See Bender, 785 A.2d at 210.

6
 The “retirement benefit” under the deferred compensation agreement
here contractually binds SJ to commence monthly payments of the benefit
once the petitioner attained his 21st employment anniversary, provided he
remains in SJ’s employ as of his retirement. It is undisputed that he has
attained the first condition — 21 years of employment with SJ — during the
course of his marriage. The only remaining condition to the deferred
compensation benefit, therefore, is the petitioner’s continued employment by
SJ until his retirement. Because the petitioner’s benefit is conditioned upon
his continued employment by SJ until a certain term, we see no relevant
distinction between the conditional status of the retirement benefit required by
the deferred compensation agreement and the conditional status of a non-
vested pension or other retirement benefit enumerated within RSA 458:16-a, I.
See Halliday, 134 N.H. at 391. Accordingly, we conclude that the benefit
provided by the petitioner’s deferred compensation plan is similar in nature to
a non-vested pension benefit and therefore constitutes intangible marital
property subject to equitable distribution.

The petitioner contends that the retirement benefit provided by the
deferred compensation agreement is not a “tax deferred account akin to a
401(k) plan, pension benefit, IRA, [or] stock option.” Yet, the petitioner does
not explain his rationale for distinguishing these benefits from the retirement
benefit under the deferred compensation agreement. Nevertheless, based upon
the specific examples he provides, we construe the petitioner to assert that the
deferred compensation benefit is not similar in nature to the benefits
enumerated in RSA 458:16-a, I, because the deferred compensation agreement
is merely an unfunded, contractual obligation with no present, tangible value
to the petitioner. We disagree.

We recognize that a pension benefit is typically funded by continuous
contributions made by an employee or an employer over the course of the
employee’s employment. See, e.g., Grace Ganz Blumberg, Marital Property
Treatment of Pensions, Disability Pay, Worker’s Compensation, and Other
Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. Rev.
1250, 1252 (1986) (“An employee pension may be funded entirely by employee
contributions, entirely by employer contributions, or by a mix of the two.”). We
also acknowledge that the petitioner’s deferred compensation agreement
specifically states that the agreement is an “unfunded arrangement,” and that
the payments under the agreement come from the “general, unrestricted
assets” of SJ to which “no person shall have any interest” by virtue of the
agreement.

However, based upon the statute’s express inclusion of non-vested
pension and retirement benefits, see RSA 458:16-a, I, we conclude that this
aspect of the deferred compensation agreement does not distinguish it from the
enumerated benefits in RSA 458:16-a, I. Just as the petitioner does not
become eligible to receive payments from SJ pursuant to the deferred

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compensation agreement until he reaches retirement age, an employee with a
non-vested pension benefit is not eligible to receive payments from the pension
upon retirement until he or she reaches the required term of employment. The
relevant inquiry is not whether the benefit plan is supported by existing funds;
rather, the 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.
Here, the deferred compensation agreement provided the petitioner with such
an interest at the time of his divorce, conditioned upon his continued
employment to the age of retirement, and this interest constitutes marital
property.

We briefly address the petitioner’s remaining arguments on the deferred
compensation agreement’s retirement benefit. The petitioner asserts that he did
not “earn” the retirement benefit during the marriage because he had not
reached retirement age while employed by SJ prior to the divorce. In asserting
this argument, the petitioner relies upon the Michigan Court of Appeals decision
in Skelly v. Skelly, 780 N.W.2d 368 (Mich. Ct. App. 2009). There, the court
ruled that the husband’s retention bonus, conditioned upon his continued
employment to a specific date that occurred after the marriage, was not marital
property. Id. at 371. Because the husband did not meet the condition during
the marriage, the court reasoned that the bonus was not “earned” during the
marriage and therefore did not constitute marital property. Id.

The ruling in Skelly does not align with the law in New Hampshire with
respect to retirement benefits. Because a non-vested pension and other
retirement benefits constitute marital property under RSA 458:16-a, I, New
Hampshire law does not require a spouse to “earn” the benefit itself or the
eligibility to receive the benefit during the marriage. Instead, the proper
inquiry is whether the petitioner acquired the interest in the retirement benefit
under the deferred compensation agreement prior to the divorce, see Halliday,
134 N.H. at 391, and, here, it is undisputed that the petitioner acquired such
an interest pursuant to the deferred compensation agreement. Therefore, we
decline to follow the reasoning of the Michigan Court of Appeals in Skelly.3

Next, the petitioner asserts that the retirement benefit is not marital
property because it is not a product of “any joint efforts” of the parties during

3 Similarly, we conclude that the other decisions cited by the petitioner from courts in other
jurisdictions are distinguishable on their facts or contrary to New Hampshire law. See In re
Marriage of Wendt, 995 N.E.2d 439, 443 (Ill. App. Ct. 2013) (non-contractual bonus payment
was a “mere expectancy,” not marital property, where it was made only at the employer’s
discretion); Edwards v. Edwards, 428 S.E. 2d 834, 837 (N.C. Ct. App. 1993) (decided under
prior North Carolina law that expressly considers “the expectation of nonvested pension,
retirement, or other deferred compensation rights” as separate property, see N.C. Gen. Stat.
§ 50-20(b)(2) (1987 & Cum. Supp. 1992) (amended 1997)); Dunham v. Dunham, 125 P.3d
1015, 1018 (Wyo. 2006) (decided under Wyoming law that requires property to be “in [the
court’s] hands” at the time of the divorce to be subject to equitable division).

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the marriage. The petitioner’s argument is misplaced. The effort of the parties
during the marriage is one factor the trial court may consider when
determining the equitable division of marital property. See RSA 458:16-a, II(f)
(the trial court may consider, inter alia, “[t]he actions of either party during the
marriage which contributed to the growth or diminution in value of the
property” in determining the equitable division of property). However, to
determine whether an asset constitutes marital property under RSA 458:16-a,
I, the proper inquiry is whether the property was acquired up to the date of the
divorce decree. See In the Matter of Gordon and Gordon, 147 N.H. 693, 697
(2002) (marital property under RSA 458:16-a, I, includes “any property
acquired up to the date of a decree of legal separation or divorce” (quotation
omitted)); see also RSA 458:16-a, I (“all tangible and intangible property and
assets, real or personal, belonging to either or both parties,” is subject to
equitable division). Therefore, the effort of the parties during the marriage is
not relevant to the determination of whether the retirement benefit constitutes
marital property subject to equitable distribution under RSA 458:16-a, I.

Furthermore, contrary to the petitioner’s assertion, the absence of a
mechanism to enforce the terms of the deferred compensation agreement does
not determine whether the retirement benefit constitutes marital property
under RSA 458:16-a, I. Although the deferred compensation plan defines the
petitioner’s status with respect to the benefit as no greater than that of an
“unsecured general creditor,” the petitioner does not dispute the validity of the
deferred compensation agreement that contractually obligates SJ to pay the
petitioner the retirement benefit should he reach retirement age while still in
SJ’s employ. As discussed above, it is the interest in a benefit based upon a
benefit plan that renders the benefit marital property, not whether the
petitioner will actually receive that benefit. RSA 458:16-a, I.4

As with a non-vested retirement benefit, the trial court may consider the
conditional nature of the petitioner’s retirement benefit in determining the
equitable distribution of the marital property based upon the factors set forth
in RSA 458:16-a, II, and in tailoring the terms and conditions of the property
distribution. See Halliday, 134 N.H. at 391; see also Valence, 147 N.H. at 669
(the trial court should determine petitioner’s portion of unvested stock option
shares and order distribution “if and when they vest”). Accordingly, because
the petitioner has an interest in receiving the retirement benefit upon his
retirement under the deferred compensation agreement, we conclude that any
future payments he may receive that are attributable to his employment during
the parties’ marriage constitute marital property subject to equitable division.
See Valence, 147 N.H. at 668-69; RSA 458:16-a.

4 In addition, in light of our ruling that the retirement benefit under the petitioner’s deferred
compensation agreement constitutes marital property, the alternative death benefit provided by
the deferred compensation agreement must also be considered marital property subject to
equitable division.

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 Next, as to the severance agreement, the respondent argues that the
severance pay constitutes an “employment benefit” under RSA 458:16-a, I. The
petitioner, on the other hand, contends that the severance pay represents
future income, rather than property, because: (1) he did not acquire the
severance pay, or entitlement to the severance pay, during the marriage; and
(2) the purpose of the severance pay is to compensate him for lost future
income if he becomes separated from his employment with SJ, rather than to
reward him for his prior service.

RSA 458:16-a, I, includes as marital property the broad category of
“employment benefits.” In viewing this category of marital property within the
context of the other enumerated property and the language of the statute as a
whole, we conclude that the broad classification of “employment benefits” as
intangible marital property in RSA 458:16-a, I, without any limitation or
exception, includes conditional, contractual entitlements to benefits acquired
through a spouse’s employment during the marriage. To conclude otherwise
would exclude certain benefits provided to a spouse by his or her employer
prior to the divorce without any statutory authority. See In the Matter of
Sukerman & Sukerman, 159 N.H. 565, 567 (2009) (“all property acquired
during the marriage without regard to title, or to when or how acquired is
deemed to be marital property unless it is specifically excepted by statute”
(quotation omitted)); see also Heinrich, 164 N.H. at 361 (“Had the legislature
wanted to exclude workers’ compensation benefits from the definition of
‘property’ for equitable division purposes, it could have done so.”).

Here, during the marriage, the petitioner acquired the conditional right to
receive a lump sum severance payment, variable in amount based on his
length of employment, from SJ in the event that he leaves his employment
without cause and prior to retirement. This lump sum payment, if received,
undoubtedly provides a benefit to the petitioner in the event that he is
separated from his employment. Therefore, we conclude that the petitioner’s
conditional right to receive severance pay pursuant to an employment
agreement acquired during the marriage constitutes an employment benefit
under the statute, despite its conditional nature.

The petitioner urges us to adopt reasoning applied by courts in other
jurisdictions, which would require us to analyze the purpose of the severance
agreement to determine whether it is intended to compensate the petitioner for
services rendered during his employment or to replace income he would have
earned but for his future separation from employment without fault. See
Luczkovich v. Luczkovich, 496 S.E.2d 157, 160 (Va. Ct. App. 1998)
(considering “whether the severance pay was intended to compensate the
employee for efforts made during the marriage or to replace post-separation
earnings”); see also In re Marriage of DeShurley, 255 Cal. Rptr. 150, 152 (Ct.
App. 1989); Wiener v. Wiener, 868 N.Y.S. 2d 197, 201 (App. Div. 2008); Davis
v. Davis, 87 P.3d 640, 642 (Okla. Civ. App. 2003). In essence, the petitioner

10
asks us to adopt the “analytical approach” to classifying marital property, by
which the purpose of the payment determines whether it constitutes marital
property. Heinrich, 164 N.H. at 360.

We have previously rejected this approach as inconsistent with the law in
New Hampshire. Id. at 361 (reaffirming prior conclusion that the analytical
approach “did not fit with New Hampshire’s legislative scheme” where marital
property under RSA 458:16-a, I, includes “all property ‘belonging to either or
both parties’” (quotation omitted)). Instead, based upon the broad language of
the statute, we have employed the “mechanistic approach,” where an award or
settlement acquired during the marriage is deemed marital property “regardless
of the underlying purpose of the award or the loss it is meant to replace.” Id. at
360 (quotation omitted); In the Matter of Preston and Preston, 147 N.H. 48, 49-
50 (2001); see also Sukerman, 159 N.H. at 567 (applying the mechanistic
approach over the analytical approach to conclude that disability pension
benefits constitute marital property). The language of RSA 458:16-a, I, remains
unaltered since these cases were decided, and thus, we see no reason to depart
from this approach now. See, e.g., Heinrich, 164 N.H. at 359 (quoting RSA
458:16-a, I (2004)). Therefore, we decline to adopt the approach utilized by the
courts deciding the cases cited by the petitioner and we conclude that the
petitioner’s severance pay constitutes an employment benefit under RSA
458:16-a, I.

Like the deferred compensation payments, the trial court should consider
the conditional and unfunded nature of the severance pay when equitably
dividing the marital property based upon the factors set forth under RSA
458:16-a, II. Any obligation of the petitioner to provide payments to the
respondent pursuant to an equitable division of the deferred compensation or
severance payments must be conditioned upon his receipt of such payment.
However, based upon the broad and unlimited language of the statute, we
cannot conclude that the deferred compensation and severance pay here do not
constitute marital property merely because they are conditional in nature.

Accordingly, the trial court erred when it classified the payments under
the deferred compensation and severance agreements as income for the
purpose of determining alimony.5 If the legislature disagrees with our
interpretation of the statute, it is free to amend the statutory scheme as it sees
fit. See Appeal of Town of Nottingham, 153 N.H. 539, 566 (2006).

We next address the respondent’s contention that the trial court erred by
excluding certain expenses when it calculated the alimony award. The
respondent argues that the trial court’s order fails to identify the expenses it

5Any equitable division of such marital property may include the consideration of any tax
consequences. See RSA 458:16-a, II(j) (the trial court may consider the “tax consequences for
each party” in determining the equitable division of marital property).

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excluded in determining the alimony award calculation or explain why it
concluded that such expenses were unreasonable. On this basis, she asserts
that the trial court’s alimony award is unsupported by the evidence presented
at trial and insufficient to meet her reasonable needs.

Trial courts have broad discretion in awarding alimony. In the Matter of
Henry & Henry, 163 N.H. 175, 182 (2012). Accordingly, we review the trial
court’s alimony award under our unsustainable exercise of discretion standard.
Id. If there is sufficient evidence to support the trial court’s factual findings, we
will uphold them. In the Matter of Dube & Dube, 163 N.H. 575, 581 (2012).

At the time of the trial court’s divorce decree, New Hampshire law
required the trial court to consider the following specific factors to determine
the amount of alimony:

the length of the marriage; the age, health, social or economic
status, occupation, amount and sources of income, the property
awarded under RSA 458:16-a, vocational skills, employability,
estate, liabilities, and needs of each of the parties; the opportunity
of each for future acquisition of capital assets and income; the
fault of either party as defined in RSA 458:16-a, II(l); and the
federal tax consequences of the order.

RSA 458:19, IV(b). The respondent does not expressly challenge the trial
court’s consideration of these factors. Nonetheless, because the respondent
argues that the trial court erroneously excluded certain expenses, we construe
the respondent’s argument as challenging the trial court’s consideration of the
respondent’s health and needs.

The trial court’s order, as it relates to the respondent’s expenses at issue,
states as follows:

The Court has evaluated wife’s expenses in relation to whether
they are reasonable and consistent with the parties’ lifestyle during
the marriage. Wife purchased an older home knowing that it
needed extensive and expensive repairs. Some of the
extraordinarily high expenses for the home which the wife incurred
voluntarily and a portion of the expenses allocated for anticipated
future uninsured health/dental care which are speculative, have
been excluded for purposes of determining a reasonable alimony
award.

Based upon our review of the record, there is sufficient evidence to
support the trial court’s exclusion of the medical and dental care expenses as
speculative. Although the trial court did not specify the “anticipated future
uninsured health/dental care” it excluded, the record establishes that these

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expenses consisted of two unspecified medical procedures and one dental
procedure, which are the only anticipated health or dental care the respondent
identified. As to the trial court’s reason for excluding these expenses as
“speculative,” we conclude that the record includes sufficient evidence to
support the trial court’s finding. The respondent’s affidavit describes $316 in
dental expenses only as an “[e]stimate to replace 2 root canals & 4 cracked
fillings,” and provides no description of the $429 medical expense. Although
the respondent testified that she planned to undergo two future “medical”
procedures, and described the “medical and dental” procedures as “necessary,”
there was no further evidence identifying the nature of the procedures, the
reason why they were necessary, or when they will occur. We defer to the trial
court’s judgment in resolving conflicts in testimony, measuring the credibility
of witnesses, and determining the weight to be given to evidence. Henry, 163
N.H. at 183. Accordingly, we do not find the trial court’s exclusion of the
anticipated medical and dental expenses to constitute an unsustainable
exercise of discretion.

However, we cannot reach the same conclusion with respect to the trial
court’s exclusion of household expenses. The record contains numerous
expenses relating to the respondent’s home, including several repairs, snow
removal, yard maintenance, and utilities. Yet, the court’s order states only that
it excluded “[s]ome of the extraordinarily high expenses for the home.” The
petitioner contends that the excluded expenses are “readily ascertainable” by
looking at the respondent’s financial affidavits submitted to the trial court.
Even assuming we can glean from the record which expenses the trial court
considered to be “extraordinarily high,” the trial court’s order states that it
excluded only “[s]ome” of those expenses. Therefore, from this record, we
cannot ascertain which household expenses the trial court excluded, and,
therefore, we cannot sufficiently review its findings to determine whether the
court’s exercise of discretion on this issue is sustainable. See Dube, 163 N.H.
at 581. Accordingly, we remand and order the court to make findings and
rulings to support its determination. See Magrauth v. Magrauth, 136 N.H.
757, 763 (1993).

Finally, because we have concluded that the trial court erred in
considering the deferred compensation and severance payments as income
rather than marital property, we need not reach the respondent’s argument
that the trial court erred in arbitrarily reducing the supplemental alimony
award.

Based upon the foregoing, we vacate and remand the trial court’s
“Deferred Compensation Alimony” and “Severance Alimony” awards for further
proceedings in accordance with this opinion. Furthermore, because we have
concluded that the deferred compensation and severance payments are subject
to equitable division as marital property, we also vacate and remand the trial
court’s base alimony award that was based, in part, upon the court’s

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consideration of the award of marital property. On remand, the trial court
must: (1) equitably divide the retirement benefit under the deferred
compensation agreement and the payment under the severance agreement
pursuant to the factors in RSA 458:16-a, II, and the requirements set forth in
RSA 458:16-a, IV; and (2) recalculate the respondent’s alimony award in
accordance with this opinion and RSA 458:19, VI (2018) (amended 2018).

Vacated and remanded.

LYNN, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.

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