In addition to the Harkeem exception, we have also recognized an exception permitting an award of attorney's fees in divorce cases. See, e.g., DePalantino v. DePalantino, 139 N.H. 522, 526, 658 A.2d 1207 (1995) ; Indorf v. Indorf, 132 N.H. 45, 47, 561 A.2d 241 (1989) ; Salito v. Salito, 107 N.H. 77, 77–78, 217 A.2d 181 (1966). In awarding attorney's fees pursuant to this exception, trial courts must use "reasonable restraint" and the award must be based upon a finding of "need on the part of one party and ability to pay on the part of the other."
Id. We explained, first, that such an award is permissible, seeSalito v. Salito, 107 N.H. 77, 78, 217 A.2d 181 (1966), and, second, that “we [had] already impliedly upheld the trial court's inherent authority to award such fees in the instant case.” Hampers, No. 2007–519 (N.H. Jan. 24, 2008).
Id. We explained, first, that such an award is permissible, seeSalito v. Salito, 107 N.H. 77, 78, 217 A.2d 181 (1966), and, second, that "we [had] already impliedly upheld the trial court's inherent authority to award such fees in the instant case." Hampers, No. 2007–519 (N.H. Jan. 24, 2008).
Although the trial court made no explicit findings with respect to the respondent's need and the petitioner's ability to pay, its order necessarily implied such findings. See Salito v. Salito, 107 N.H. 77, 78, 217 A.2d 181 (1966); see also Kosek, 151 N.H. at 725 (noting that appellate court assumes that trial court made all subsidiary findings necessary to support its general ruling). The record supports these implied findings.
We have more specifically indicated that in divorce cases trial courts may award attorney's fees if they find "need on the part of [one party] and ability to pay on the part of the [other]." Salito v. Salito, 107 N.H. 77, 78, 217 A.2d 181, 183 (1966). We will not overturn the trial judge's decision to award attorney's fees in a divorce proceeding absent a showing that the court abused its discretion.
In deference to the finality of the divorce decree, however, as well as to the underlying intent of RSA 458:19 that the parties develop independent economic lives, that discretion should be exercised with reasonable restraint. Kuo v. Kuo, 108 N.H. 460, 461, 237 A.2d 690, 691 (1968); see Salito v. Salito, 107 N.H. 77, 217 A.2d 181 (1966): "In this state . . . the wife cannot demand a shifting galaxy of legal talent at her husband's expense." Remanded.
Although the authority of the Court to make such an order does not appear to us to be questionable, it is to be exercised with reasonable restraint. RSA 458:27; RSA 458:19; Guay v. Association, 87 N.H. 216, 222; Veino v. Veino, 96 N.H. 439, 441. See, Salito v. Salito, 107 N.H. 77. The record discloses no error, and the order is
Other States which have enacted similar statutes agree. ( Weller v Weller, 14 Ariz. App. 42; Zimmerman v Zimmerman, 131 Ga. App. 567; State ex rel. Shannon v Sterling, 248 Minn. 266; Salito v Salito, 107 N.H. 77; Stubblefield v Stubblefield, 272 S.W.2d 633 [Tex]; see, also, Ann., 42 ALR2d 768, 776.) A case closely in point to the instant one is Nichols v Bardua ( 74 A.D.2d 566).