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                 THE SUPREME COURT OF NEW HAMPSHIRE

                          ___________________________


10th Circuit Court-Brentwood Family Division
No. 2016-0468


           IN THE MATTER OF LESLIE DOW AND HARRY DOW, IV

                           Argued: May 24, 2017
                      Opinion Issued: August 15, 2017

      Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the
memorandum of law and orally), for the petitioner.


      John A. Macoul, of Salem, by brief and orally, for the respondent.

       BASSETT, J. The respondent, Harry Dow, IV, appeals an order of the
Circuit Court (Greenhalgh, J.) requiring him to pay alimony to the petitioner,
Leslie Dow, in the amount of $750 per month for three years. When it
calculated the amount of alimony, the trial court declined to impute income to
the petitioner, concluding that it had no authority to do so under RSA 458:19
(Supp. 2016). On appeal, the respondent argues, among other things, that the
trial court erred because RSA 458:19 authorizes the imputation of income for
the purpose of determining the amount of alimony. We agree with the
respondent and, therefore, vacate and remand.

      The record supports the following facts. The parties were married for
over thirty years. For much of the marriage, the petitioner worked at a
preschool in Massachusetts, and the respondent worked for a local carpenters’
union. In 2010, the parties agreed that the petitioner should leave her
position, where she was earning approximately $21 per hour, to spend time
with the parties’ grandchildren. In October 2013, the respondent’s
employment with the union ended, and he began receiving unemployment
benefits.

      The parties divorced in April 2014. In their stipulated divorce decree, the
parties agreed that the respondent had no ability to pay alimony, and that,
once he obtained new employment, the petitioner could request alimony.

       In October 2014, the respondent started a business. Subsequently, the
petitioner filed a motion requesting alimony, alleging that the respondent was
earning sufficient income through his business. The respondent objected,
arguing that the petitioner had “failed to take . . . meaningful action to become
self-sufficient” and had “the ability to generate sufficient income . . . to provide
for her own reasonable needs.” At the hearing on the motion, the respondent
argued that the trial court should consider both the fact that the petitioner had
been earning $21 per hour at her previous position, and the lack of evidence
that the petitioner had made diligent efforts to obtain employment after the
divorce.

        The trial court granted the petitioner’s motion and ordered the
respondent to pay $750 per month for a period of three years. Although the
court determined that the petitioner could not be fully self-supporting, it also
found that she was “capable of . . . contributing to her own support” and had
“failed to take . . . meaningful action to become self-sufficient.” The trial court
declined to impute income to the petitioner, however, concluding that it had no
authority to do so under RSA 458:19. Specifically, the court stated, “[RSA
458:19, IV(e)] provides a basis for imputation of income for alimony purposes
and [is] applicable to the obligor only. Therefore I cannot impute income to the
[p]etitioner.” The trial court denied the respondent’s motion for
reconsideration, and this appeal followed.

      On appeal, the respondent argues, among other things, that the trial
court erred when it ruled that it had no authority, under RSA 458:19, to
impute income to the petitioner. Because we agree that a trial court has the
statutory authority to impute income when it determines the amount of
alimony, we need not address the respondent’s other arguments.

      We review the trial court’s statutory interpretation de novo. In the
Matter of Lyon & Lyon, 166 N.H. 315, 318 (2014). In matters of statutory
interpretation, we are the final arbiter of the legislature’s intent as expressed in
the words of the statute considered as a whole. Id. When examining the
language of a statute, we ascribe the plain and ordinary meaning to the words
used. Id. We interpret legislative intent from the statute as written and will
not consider what the legislature might have said or add language that the



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legislature did not see fit to include. Id. Further, we interpret a statute in the
context of the overall scheme and not in isolation. Id.

      RSA 458:19, IV(b) (Supp. 2016) provides:

      In determining the amount of alimony, the court shall consider the
      length of the marriage; the age, health, social or economic status,
      occupation, amount and sources of income, the property awarded
      under RSA 458:16-a, vocational skills, employability, estate,
      liabilities, and needs of each of the parties; the opportunity of each
      for future acquisition of capital assets and income; the fault of
      either party as defined in RSA 458:16-a, II(l); and the federal tax
      consequences of the order.

It is well-established that, when determining the amount of alimony, the trial
court may consider the earning capacities of both parties. See, e.g., In the
Matter of Sutton & Sutton, 148 N.H. 676, 680 (2002); Hoffman v. Hoffman, 143
N.H. 514, 519 (1999). Given that RSA 458:19 authorizes a trial court to
consider the earning capacities of the parties when determining the amount of
alimony, it logically follows that a trial court may impute income to either
party, including the recipient, based upon earning capacity.

       In so concluding, we join the many courts that have held that “[i]mputing
income to an unemployed or underemployed spouse when setting an alimony
award is conceptually appropriate as part of the determination of that spouse’s
ability to produce a sufficient income.” Willey v. Willey, 866 P.2d 547, 554
(Utah Ct. App. 1993); see, e.g., Green v. Green, 126 So. 3d 1112, 1114 (Fla.
Dist. Ct. App. 2012) (“[T]he amount of income a spouse may be able to earn is a
factor the court should consider in determining an alimony award.” (quotation
omitted)); Christianson v. Christianson, 671 N.W.2d 801, 809-10 (N.D. 2003)
(Maring, J., concurring in part and dissenting in part) (collecting cases for
proposition that “where a party has voluntarily reduced his income, the court
may impute income to arrive at an amount for spousal support”); 3 A. Rutkin,
Family Law and Practice § 35.03[1][b], at 35-36 n.16 (2016) (same).

       In fact, on a number of occasions, we have affirmed alimony orders in
which the trial court took into account the earning potential of the party
seeking alimony. For example, in Sutton & Sutton, we upheld an alimony
order in which the trial court imputed income to the receiving spouse in the
amount of $21,000 per year. See Sutton & Sutton, 148 N.H. at 680. In that
case, the trial court “found the petitioner capable of renewing her nursing
license and obtaining a position with a starting annual salary of $21,000.” Id.
at 678. We affirmed the order of the trial court because “the evidence
support[ed] the court’s conclusion that the petitioner’s combined income of
$21,000 per year in expected earnings and $48,000 per year in alimony [was]
sufficient to meet her reasonable needs.” Id. at 680. We have employed similar


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reasoning in other cases. See, e.g., Dionne v. Dionne, 129 N.H. 638, 640-41
(1987) (per curiam) (upholding alimony order where master found that
receiving spouse was “capable of earning $820 per month”); Parker v. Parker,
122 N.H. 658, 662 (1982) (per curiam) (decided under prior law) (upholding
alimony order of $100 per week to defendant, where master reasonably found
that defendant was otherwise able to “earn sufficient money to contribute to
the provision” of her reasonable needs).

      Nonetheless, the petitioner argues that RSA 458:19, IV(e) (Supp. 2016) is
the only authority for the trial court to impute income for alimony purposes.
We disagree. That provision provides that, when a court determines whether to
modify an existing alimony order, “the earned or unearned income and social
security disability payments of a spouse of the obligor party shall not be
considered a source of income to that obligor party.” RSA 458:19, IV(e). The
provision goes on to provide an exception to this rule: if the “obligor party
resigns from or refuses employment or is voluntarily unemployed or
underemployed, . . . the income of a subsequent spouse may be imputed to the
obligor party only to the extent that such obligor party could have earned
income in his or her usual employment.” Id. Thus, by its plain terms,
subparagraph IV(e) sets forth the narrow circumstances in which the income of
a subsequent spouse may be attributed to the obligor party; the provision does
not operate as a broad limitation on the authority of the trial court to consider
the earning potential of a party when calculating the appropriate amount of
alimony. This subparagraph says nothing in regard to the issue of imputing
income to the party seeking alimony (the obligee).

       The petitioner also contends that RSA 458:19 does not permit the
imputation of income because, unlike our child support statute, RSA 458:19
does not contain an explicit authorization to that effect. See RSA 458-C:2,
IV(a) (Supp. 2016) (authorizing, in certain circumstances, the trial court to
consider “as gross income the difference between the amount a parent is
earning and the amount a parent has earned”). We disagree. The language of
RSA 458:19, IV(b) explicitly authorizes a trial court to consider the earning
capacities of the parties when determining the amount of alimony.
Accordingly, we conclude that the trial court may impute income to either party
as part of that determination. See Hoffman v. Town of Gilford, 147 N.H. 85, 87
(2001) (“If the statute is plain and unambiguous, we need go no further in
resolving the issue.”).

       Finally, the petitioner argues that, even if the trial court erred, the
alimony order should be upheld because the error was harmless. The
petitioner correctly observes that the trial court denied the respondent’s
request for a finding that the petitioner was “voluntarily unemployed [or]
under-employed.” The petitioner asserts that, in light of this finding, “the
result . . . would remain unchanged.” We are not persuaded. The trial court
also found that the petitioner was capable of being self-supporting, and that


                                       4
she had failed to take “meaningful action” to attain that status. The trial
court’s findings suggest that it had determined that the petitioner could obtain
employment. However, because the trial court ruled that it could not impute
income, it is unclear whether, or to what extent, the trial court considered
these findings when it determined the amount of alimony.

        Therefore, we vacate the decision of the trial court and remand for
further proceedings consistent with this opinion. See In the Matter of Doherty
& Doherty, 168 N.H. 694, 700 (2016). We note that the petitioner also claims
that, after the trial court issued the alimony order, the respondent obtained
new employment. The petitioner argues that, as a result, she may be entitled
to a greater alimony award. We decline to consider the petitioner’s claim in the
first instance. She may raise the claim in the trial court upon remand.

                                                 Vacated and remanded.

      DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.




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