Summary
In Weeks v. Weeks, 124 N.H. 252, 469 A.2d 1313 (1983), this court held that, in a divorce proceeding, a party who has failed to file any pleadings, but does file an appearance, has the right to contest the granting of the divorce and the property division.
Summary of this case from Bernier v. BernierOpinion
No. 82-414
Decided December 12, 1983
1. Pleading — Limiting or Enlarging Issues Where former wife entered an appearance but did not file an answer to her former husband's libel for divorce, which alleged the existence of irreconcilable differences that had caused the irremediable breakdown of the parties' marriage, the supreme court held that by entering an appearance but not filing an answer, the former wife admitted all the facts alleged by the former husband in his libel except the ultimate question to be resolved by the trial court, whether the breakdown of the marriage was irremediable. Superior Ct. R. 133, 156.
2. Divorce — Grounds — Complete Breakdown of Marriage The determination whether the breakdown of a marriage is irremediable is made by the trial court, not the parties.
3. Divorce — Appeals — Issues Considered Where former wife entered an appearance but did not file an answer to her former husband's libel for divorce, which alleged the existence of irreconcilable differences that had caused the irremediable breakdown of the parties' marriage, the supreme court held that the former wife had contested the granting of the divorce and had the right to appeal the decree since by entering an appearance but not filing an answer, the former wife had admitted all the facts alleged by her former husband in his libel except the ultimate question to be resolved by the trial court, whether the breakdown of the marriage was irremediable. Superior Ct. R. 133, 156.
4. Divorce — Evidence — Sufficiency In a divorce proceeding, where the record indicated that the former husband refused to continue with the marriage and was unwilling to participate in any type of counseling or to change his working conditions, the supreme court held that sufficient evidence existed on the record to support the master's finding that the breakdown of the marriage was irremediable, the master being warranted in concluding that there was no reasonable possibility of the former husband changing his mind, and therefore that the desire of the former wife to continue the marriage was not sufficient, by itself, to bar the divorce.
5. Divorce — Property Settlement — Master's Evaluation of Property In allocating property in divorce proceedings, the master's task is to view the parties' real and personal property as a whole and propose an equitable distribution.
6. Divorce — Property Settlement — Discretion of Master In allocating property in divorce proceedings, the master may order redistribution of any property falling within the joint marital estate or within the individual estates of either spouse.
7. Divorce — Property Settlement — Master's Evaluation of Property In divorce proceedings, regardless whether property was owned individually by one party or jointly by both parties, the master must consider it a marital asset when making a property settlement based on the equities of the circumstances.
8. Divorce — Property Settlement — Manner in Which Property Was Acquired In allocating property in a divorce proceeding, the master could consider, in weighing the equities, the fact that the former husband inherited real estate from his father, but that fact did not remove the property from the marital assets.
9. Divorce — Property Settlement — Settlements Not Upheld In a divorce proceeding, where the former husband had inherited from his father, during the parties' marriage, a one-third interest in real estate including the family homestead in which the parties resided throughout their marriage and which homestead had been rebuilt by the families of both parties after it was destroyed by fire, and where the master decreed in his property distribution award recommendation that all the real estate go to the former husband disencumbered of all right, title and interest of his former wife on the condition that the former husband pay his former wife $7,000, after the master found that the real estate was an asset of the former husband and that the former wife had no interest in the real estate other than her contribution to the property, the supreme court reversed the property settlement decree and remanded the case for reconsideration by the master, holding that the master must consider the real estate as a marital asset when making the property settlement, regardless whether the property was owned individually by the former husband or jointly by the parties.
10. Divorce — Property Settlement — Distribution of Real Property On remand in a divorce proceeding to reconsider the property settlement, where the former husband had inherited a one-third interest in real estate and the homestead situated thereon from his father during the parties' marriage, the master should determine whether, at the trial court hearing, the former wife had disclaimed any interest in the former husband's inheritance except for the homestead, to which she had contributed, and if she had waived all rights to the real estate, it was not subject to division by the master, but was nonetheless a factor to be considered when the master recommended the property settlement.
Boynton, Waldron, Doleac, Woodman Scott P.A., of Portsmouth (Ralph R. Woodman and Patti Blanchette on the brief, and Mr. Woodman orally), for the plaintiff.
Burns, Bryant, Hinchey, Cox Shea P.A., of Dover (Anthony A. McManus and Christopher A. Wyskiel on the brief, and Mr. McManus orally), for the defendant.
After four years of marriage to the defendant the plaintiff filed a libel for divorce alleging the existence of irreconcilable which had caused the irremediable breakdown of the marriage. See RSA 458:7-a. After a hearing, the Master (Larry Pletcher, Esq.) recommended a decree of divorce and property settlement which the Trial Court (Pappagianis, J.) approved. The defendant appeals both the granting of the divorce and the division of the parties' property. For the reasons that follow, we affirm the decree of divorce, and reverse and remand the property settlement decree.
First, the defendant alleges that the master abused his discretion in granting the divorce. Before reaching that issue, we must determine whether the defendant contested the divorce in the superior court and thus has the right to appeal the granting of the divorce. Although the defendant entered an appearance, she did not file an answer to the libel. Under Superior Court Rule 133, all facts well alleged in the plaintiff's libel will be deemed admitted if not denied or explained by the defendant. The plaintiff argues that because the defendant did not answer the libel, she has admitted the allegations in the fifth paragraph in the bill, that irreconcilable differences have developed between the parties which have caused an irremediable breakdown of their marriage. Therefore, she cannot contest the granting of the divorce.
[1-3] In juxtaposition to this argument stands Superior Court Rule 156 which provides that if there is an appearance in marital matters, the case will not be heard uncontested unless there is on file a writing that the individual who entered the appearance does not desire to be heard. Reading Rules 133 and 156 together, we hold that by entering an appearance but not filing an answer, the defendant admitted all the facts alleged by the plaintiff in his libel except the ultimate question to be resolved by the court, whether the breakdown of the marriage is irremediable. The court, not the parties, makes that determination. See Woodruff v. Woodruff, 114 N.H. 365, 368, 320 A.2d 661, 663 (1974). Therefore, the defendant did contest the granting of the divorce below, and may appeal the decree. Accordingly, we turn to the defendant's first contention: that the master abused his discretion in recommending that the divorce be granted.
We hold that sufficient evidence exists on the record to support the master's finding that the breakdown of the marriage was irremediable. See Stephenson v. Stephenson, 111 N.H. 189, 191-92, 278 A.2d 351, 353 (1971). The plaintiff refuses to continue with the marriage and is unwilling to participate in any type of counseling or to change his working conditions. From these facts, the master was warranted in concluding that there was no reasonable possibility of the plaintiff changing his mind and that the breakdown of the marriage was therefore irremediable. See Desrochers v. Desrochers, 115 N.H. 591, 594, 347 A.2d 150, 152 (1975). The desire of the defendant to continue the marriage is not sufficient, by itself, to bar the divorce. Id.
The defendant also contends that the master abused his discretion in his recommended property distribution. The major controversy surrounds the master's treatment of the real estate that the plaintiff inherited, during the marriage, from his father. The property, which was devised equally to the three Weeks brothers, consists of approximately sixty-three-and-one-half acres of land, with sixteen summer camps and the Weeks homestead situated thereon. When the parties announced their engagement, it was decided that they would live in the homestead. The homestead burned down in 1969, and the families of both parties worked to rebuild the house. Both parties occupied the house throughout their marriage until the plaintiff filed for a divorce.
The master granted the plaintiff's request for a finding "that in these circumstances, the real estate . . . should not be considered as part of the marital assets of the parties which this Court should consider in making an award of any property settlement." The master added the proviso that the defendant's contributions to the homestead may be considered. In his property award recommendation, the master decreed that all the real estate go to the plaintiff disencumbered of all right, title and interest of the defendant on the condition that the plaintiff pay the defendant seven thousand dollars. The defendant excepted to that award and to the finding that the defendant had no interest in the real estate of the plaintiff other than her contribution to the property.
[5, 6] The law on property settlement in New Hampshire is clear. The master's task is to view the parties' real and personal property as a whole and propose an equitable distribution. Azzi v. Azzi, 118 N.H. 653, 656, 392 A.2d 148, 150 (1978). The master may order redistribution of any property falling within the joint marital estate or within the individual estates of either spouse. Murano v. Murano, 122 N.H. 223, 227, 442 A.2d 597, 599 (1982); see RSA 458:19, :22.
[7-10] In this case, the master found that the real estate was an asset of the plaintiff, and that the defendant was not granted any interest in the property by the plaintiff's father, either before or at his death. Regardless whether the property was owned individually by the plaintiff or jointly by the parties, the master must consider it a marital asset when making a property settlement based on the equities of the circumstances. See Rahn v. Rahn, 123 N.H. 222, 225, 459 A.2d 268, 269 (1983); Grandmaison v. Grandmaison, 119 N.H. 268, 271, 401 A.2d 1057, 1059 (1979). The master may consider, in weighing the equities, the fact that the plaintiff inherited the property from his father, see Henderson v. Henderson, 121 N.H. 807, 810, 435 A.2d 133, 135 (1981), but that fact does not remove the property from the marital assets. We therefore must remand to the master for reconsideration of the property award. On remand, the master should determine whether, at the August 9, 1982, hearing, the defendant disclaimed any interest in the plaintiff's inheritance except for the homestead. See Azzi v. Azzi supra. If she did waive all rights to the other property, it is not subject to division by the master, but is nonetheless a factor to be considered when the master recommends the property settlement. See Lawlor v. Lawlor, 123 N.H. 163, 166, 459 A.2d 238, 240-41 (1983).
Affirmed in part; reversed in part; remanded.
SOUTER, J., did not sit; the others concurred.