In re Thayer

777 A.2d 845, 146 N.H. 342, 2001 N.H. LEXIS 84
CourtSupreme Court of New Hampshire
DecidedApril 25, 2001
DocketNo. 99-805
StatusPublished
Cited by12 cases

This text of 777 A.2d 845 (In re Thayer) 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
In re Thayer, 777 A.2d 845, 146 N.H. 342, 2001 N.H. LEXIS 84 (N.H. 2001).

Opinion

PER CURIAM.

The petitioner, Judith O. Thayer, appeals from rulings by the Superior Court (Conboy, J.) in her divorce from the respondent, W. Stephen Thayer, III. We affirm.

The parties were married on December 27, 1982 and separated in July 1998. In September 1998, the petitioner filed a libel for divorce citing irreconcilable differences leading to the irremediable breakdown of the marriage. See RSA 458:7-a (1992) (amended 1998). The trial primarily centered on the parties’ financial difficulties and their effect upon the distribution of the marital estate. The trial court approved certain interim measures, including the sale of the marital home, to preserve the parties’ assets and reserved the issue of the distribution of those assets to the final hearing.

On appeal, the petitioner contends that the trial court erroneously: (1) admitted a letter from the parties’ realtor concerning valuation issues pertinent to the marital home; (2) failed to find modifications to a purchase and sale agreement inconsistent with fundamental contract law; (3) found both parties responsible for the family debt; and (4) made various evidentiary rulings.

Our review is limited to whether the trial court abused its discretion. “Trial courts are afforded broad discretion in divorce [344]*344matters, and we will not overturn the trial court’s rulings regarding property settlement absent an abuse of discretion, or error of law.” Fabich v. Fabich, 144 N.H. 577, 579 (2000) (quotation, citations and brackets omitted). “To show an abuse of discretion, the [petitioner] must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of [her] case.” State v. Pelkey, 145 N.H. 133, 135 (2000) (quotation omitted). “If there is some support in the record for the trial court’s determination, we will uphold it.” Kukene v. Genualdo, 145 N.H. 1, 3 (2000) (quotation omitted).

The first two claims of error are directed at the sale of the marital home. During the course of the marriage, the parties accumulated considerable debt, much of which was tied to encumbrances on the marital home. Early in the proceedings, the respondent sought to limit the impact of the debt on the marital estate by proposing the sale of the marital home. In its November 1,1998 temporary decree, the trial court approved the respondent’s request. Soon thereafter, the petitioner filed a motion for reconsideration. The petitioner did not contest the sale of the home; rather, she sought reconsideration of how the proceeds from that sale would be distributed. The trial court denied the motion for reconsideration, but made clear that the issue of distribution of the proceeds was preserved. The property was listed with a realtor on November 30, 1998. In August of 1999, the parties received an offer to purchase the home for $250,000. The petitioner, who is a licensed real estate broker, negotiated some of the terms of the sale with the buyers and, on August 13,1999, signed the purchase and sale agreement.

As the petitioner conceded at oral argument, she thereafter decided that she had been “snookered” and sought to derail the conveyance. The petitioner’s claims included assertions that: (1) the price for the property was inadequate; and (2) the purchase and sale agreement had been improperly amended. At motion hearings on September 7, 1999, and October 13, 1999, the trial court rejected the petitioner’s claims. In doing so, the trial court emphasized that its orders provided the petitioner with sufficient funds ($30,000) to secure new housing and otherwise preserved the proceeds of the conveyance so they could be equitably distributed after final hearing.

In reference to the claim the price was inadequate, the petitioner contends that the trial court abused its discretion when it admitted into evidence an August 10, 1999 letter written by the parties’ realtor. She claims that the letter was not trustworthy and it was admitted in violation of New Hampshire Rule of Evidence 804(b)(5). In the letter, the realtor stated the pending offer was the first to be [345]*345received during the nine months that the property had been on the market. The realtor also wrote that the pending offer was the highest and best to be expected and she therefore urged the parties to accept it.

The petitioner was the party who introduced the letter. Thus, she has waived any claim that the trial court abused its discretion in granting a request to admit. “The general rule in this jurisdiction is that a contemporaneous and specific objection is required to preserve an issue for appellate review.” State v. McMinn, 141 N.H. 636, 642 (1997) (quotation omitted). “This rule, which is based on common sense and judicial economy, recognizes that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court.” Id. (quotations and citations omitted).

While the petitioner’s failure to object is dispositive, we also observe that her evidentiary claim lacks merit. The petitioner cites New Hampshire Rule of Evidence 804(b)(5), which is a hearsay exception for statements of a deceased person. As the record contains no evidence that the declarant was deceased, the rule does not apply. In addition, “[t]he trial court has broad discretion over the admission of evidence in divorce cases and is not bound by the rules of evidence.” Gosselin v. Gosselin, 136 N.H. 350, 353 (1992).

The petitioner next argues the trial court erred during a motion hearing on September 7, 1999, when it rejected her claim that modifications to the purchase and sale agreement were improper. Specifically, the petitioner claims the respondent and the buyers added a “time is of the essence” clause and reduced the sales price without her consent. Because there was no demonstration of prejudice, the petitioner has failed to sustain her burden of showing the trial court abused its discretion.

After a home inspection, the buyers requested three modifications to the purchase and sale agreement that: (1) the sellers (the parties in this matter) treat the property for powder post beetles and any other wood destroying insects that may become evident at the time of treatment (a cost of a few hundred dollars); (2) the sellers refund to the buyers, as cash at closing, half the total cost of $14,995 for removing all shingles and re-roofing the entire house; and (3) October 15, 1999 should be the new closing date with time being of the essence. The respondent agreed to pay for the pest extermination and one-half of the roofing cost as requested by the buyers. The respondent also agreed to an October 15, 1999 closing, but did not agree to include “time is of the essence” language. The parties [346]*346closed on October 19, 1999, after the trial court appointed a commissioner to act on behalf of the petitioner. In its November 3, 1999 final decree, the trial court awarded seventy-five percent of the proceeds of the sale to the petitioner based on the original $250,000 price. The roofing and pest extermination refunds were deducted from the respondent’s remaining twenty-five percent of the proceeds.

The petitioner’s claim that the “time is of the essence” provision was improperly added to the agreement is factually incorrect. The language was requested by the buyers, but neither the respondent nor the petitioner agreed to the request. Because the language was not added the petitioner has failed to show the trial court abused its discretion.

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Cite This Page — Counsel Stack

Bluebook (online)
777 A.2d 845, 146 N.H. 342, 2001 N.H. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-thayer-nh-2001.