Chinburg v. Chinburg

660 A.2d 1127, 139 N.H. 616, 1995 N.H. LEXIS 59, 1995 WL 361746
CourtSupreme Court of New Hampshire
DecidedJune 14, 1995
DocketNo. 93-591
StatusPublished
Cited by5 cases

This text of 660 A.2d 1127 (Chinburg v. Chinburg) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chinburg v. Chinburg, 660 A.2d 1127, 139 N.H. 616, 1995 N.H. LEXIS 59, 1995 WL 361746 (N.H. 1995).

Opinion

HORTON, J.

The defendants, Dale and Ellen Chinburg, appeal a decision of the Superior Court (Dickson, J.) ordering reinterment of [617]*617their son, the plaintiff’s husband, from Durham to Arlington National Cemetery. The plaintiff, April Sloane Chinburg, cross-appeals the denial of a constructive trust in her favor over the proceeds of her late husband’s life insurance policy. We affirm.

The plaintiff and Michael Chinburg married in September 1990. In January 1991, Michael Chinburg died while serving as a fighter pilot with the United States Air Force in Saudi Arabia. Shortly before departing for the Persian Gulf, he provided the plaintiff with a general power of attorney and named her executor and sole beneficiary of his will. Upon Michael Chinburg’s death, the plaintiff received the proceeds of his $100,000 military life insurance policy, an $830 per month widow’s benefit, a $400 per month educational allowance which she is now using to attend law school, free health care, and other military benefits. At issue are the proceeds of the decedent’s private life insurance policy. Defendant Dale Chinburg sold his son a $100,000 life insurance policy six years before his son and the plaintiff married. This policy named the defendants as beneficiaries. According to the plaintiff, her husband intended and believed he had taken the necessary steps to designate her as the beneficiary. On two occasions prior to his departure for Saudi Arabia, Michael Chinburg asked his father to send the insurance policy to him or the plaintiff. The policy, however, was never sent and remained in the defendant’s custody. After Michael Chinburg’s death, the insurance proceeds were paid to the defendants, who had remained the named beneficiaries. In February 1991, the plaintiff filed a bill in equity seeking to impose a constructive trust upon the proceeds.

The plaintiff also testified that she and her husband had discussed burial and funeral arrangements, in case he did not return from the Persian Gulf. They agreed that his remains would be cremated and the ashes buried at Arlington National Cemetery, and that the plaintiff would be buried with him at the appropriate time. During the week following her husband’s death, however, the plaintiff acceded to the defendants’ wishes that her husband be buried in the defendants’ family cemetery plot in Durham. The defendants assured the plaintiff of a final resting place next to her husband in the family cemetery plot. Relations between the defendants and the plaintiff, which had never been friendly, were not improved by the death of Michael Chinburg and the ensuing litigation. The deteriorating relationship with her in-laws also made the plaintiff feel uncomfortable about visiting her husband’s grave, and she became concerned that the defendants might not permit her to be buried with her husband in the defendants’ family plot in Durham. In November 1991, she instituted a second bill in equity for the reinterment of her husband in Arlington National Cemetery.

[618]*618The trial court ordered reinterment of Michael Chinburg’s remains in Arlington National Cemetery, and granted the defendants’ motion for a directed verdict on the plaintiff’s request for a constructive trust over the proceeds of the decedent’s private life insurance policy. On appeal, the defendants argue that the trial court erred in finding that reinterment was a necessary remedy, given the evidence presented at trial. The plaintiff cross-appeals, arguing that the trial court erred in ruling inadmissible hearsay testimony relating to Michael Chinburg’s efforts to designate her the beneficiary of his life insurance policy.

We begin with the plaintiff’s cross-appeal. The plaintiff argues that the trial court erred in excluding, as inadmissible hearsay, testimony which she alleges would have established a prima facie case for the imposition of a constructive trust. At the conclusion of the plaintiff’s case, the trial judge granted the defendants’ motion for a directed verdict, finding insufficient evidence to impose a constructive trust under the preponderance of the evidence standard enunciated in Renovest Co. v. Hodges Development Corp., 135 N.H. 72, 78, 600 A.2d 448, 452 (1991).

The plaintiff sought to admit, under New Hampshire Rule of Evidence 804(b)(5) or (6), testimony as to statements allegedly made by the decedent regarding his efforts to designate the plaintiff as beneficiary of his insurance policy. A decision on the admissibility of hearsay evidence is within the sound discretion of the trial court and will not be disturbed unless clearly erroneous. State v. Winders, 127 N.H. 471, 477, 503 A.2d 798, 802 (1985).

Rule 804(b)(6) provides a catch-all exception to the hearsay rule, allowing into evidence:

A statement not specifically covered by any of the foregoing exceptions by having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

N.H. R. Ev. 804(b)(6). The plaintiff alleges that the trustworthiness standard is met because the statements were made over a twenty-two month period in the context of discussions regarding the plaintiff’s financial security, and because the content of the statements was consistent with the decedent’s requests for his father to send the policy. At trial, however, the court denied admission of the testimony, stating: “With regard to [Rule 804(b)](6), I don’t find that the testimony of this witness would have the equivalent of circumstantial [619]*619guarantees of trustworthiness otherwise required. Therefore, I think it is really questionable as to whether you have met the requirements of Subsection (C) of that rule.”

The time span, context, and consistency of the statements were before the trial court in the plaintiff’s offer of proof. After reviewing the record, we cannot say that the trial court’s failure to find circumstantial guarantees of trustworthiness in the time span, context, and consistency of the alleged statements constituted an abuse of discretion. We cannot overturn the findings of the trial court simply because we might draw different inferences from the record. See Zimmerman v. Suissevale, Inc., 121 N.H. 1051, 1054, 438 A.2d 290, 292 (1981). We therefore uphold the trial court’s determination that the evidence offered by the plaintiff lacked the circumstantial guarantees of trustworthiness necessary for the application of this exception to the hearsay rule.

The court also refused to admit the proffered testimony under Rule 804(b)(5) because it specifically found that “this is not an action, suit or proceeding by representatives of the deceased person,” as required by that rule. Rule 804(b)(5) allows into evidence the statement of a deceased person as follows:

In actions, suits or proceedings by or against the representatives of deceased persons,

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Cite This Page — Counsel Stack

Bluebook (online)
660 A.2d 1127, 139 N.H. 616, 1995 N.H. LEXIS 59, 1995 WL 361746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chinburg-v-chinburg-nh-1995.