Laflamme v. Laflamme

HORTON, J.,

dissenting: The majority sets forth two changes in circumstances identified by the master — that the defendant had systematically liquidated corporate assets to pay his debts and that he had incurred a significant income tax obligation — and finds them insufficient to meet the threshold required to justify a modification of his alimony obligation. The majority, however, overlooks the master’s finding that the difference in the net worth of the parties’ assets in 1997 was “probably not more than $50,000.00 . . ., perhaps less.” This difference in the value of the parties’ assets was more than $150,000 at the time of the divorce in 1989. The gap could only have widened in 1994, when another master found that the defendant’s Canaan, Vermont, properties had sold for over $300,000 more than their valuation at the time of the divorce, that his lakeside camp was valued at $100,000 more than it had been at the time of the divorce, and that his automotive repair garage was being sold for $62,500 more than its valuation at the time of the divorce. I respectfully submit that the reduction of the difference in the parties’ financial positions from over $150,000 in 1989 to less than $50,000 in 1997 constitutes a substantial change in circumstances, justifying the trial court’s modification of alimony.

The majority would conclude that even this dramatic change in the relative financial positions of the parties would not “rise to the level of a substantial change in circumstances sufficient to warrant modification of an alimony award” in that the sale of the assets at issue was “anticipated by the parties at the time of the decree.” Such cannot be the case.

In 1989, at the time of the divorce, the $150,000 difference in the parties’ financial positions would have been anticipated to generate income to the defendant, which income would have substantially *530contributed to, if not fully covered, the $20,000 annual alimony due to the plaintiff. If necessary, it was anticipated that the defendant would sell assets to cover the shortfall. These sales could not reasonably have been anticipated to be so large as to reduce the difference in the parties’ financial positions by over $100,000 in the less than eight years between the divorce and the 1997 order, much less in the approximately three years between the 1994 order, when the defendant’s assets were found to be valued substantially higher than they had been at the time of the divorce, and the 1997 order.

Moreover, contrary to the master’s finding, and as recognized by the majority, the mere sale of assets does not render the assets “[unavailable to provide funds to pay alimony.” Rather, the sale of assets generates cash, which, in turn, may be invested or used to purchase other assets to generate additional income. It is not until the proceeds from the sale of the assets are paid out in the form of such things as alimony, taxes, payments to creditors, or the purchase of consumer goods that the original assets are rendered unable to generate income.

The trial court is in a unique position to determine when the circumstances have changed so much — in this case, that the relative financial positions of the parties are so different from what would have been anticipated at the time of the divorce — as to justify a modification of alimony. I would hold that the trial court did not “clearly abuse[] its discretion,” as required for reversal in this case, Gnirk v. Gnirk, 134 N.H. 199, 201-02, 589 A.2d 1008, 1010 (1991), but rather acted within its discretion in determining that the change in the parties’ relative financial positions constituted such a substantial change in circumstances.

As a further and independent basis for my dissent, I assert that even under the analysis set forth in the majority opinion, the clear abuse standard is not met. Were our review de novo, we would be justified in substituting our judgment for that of the trial court. However, I fail to see how the points relied upon by the majority meet the exceptionally high threshold of clear abuse of discretion. I respectfully dissent.

THAYER, J., joins in the dissent.