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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


10th Circuit Court-Salem Family Division
No. 2015-0345


       IN THE MATTER OF DANIELLE ROSS AND CHRISTOPHER ROSS

                              Argued: May 3, 2016
                        Opinion Issued: August 23, 2016

      Steven G. Shadallah, of Salem, on the brief and orally, for the petitioner.


      Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief and orally), for the respondent.

       HICKS, J. The respondent, Christopher Ross, appeals an order of the
Circuit Court (Cooper, M., approved by Ryan, J.) dismissing his petition for a
fault-based divorce and the final order of the court (Cooper, M., approved by
Stephen, J.) in his divorce from the petitioner, Danielle Ross. He argues that
the trial court erred: (1) in granting the petitioner’s motion to dismiss based
upon the defense of recrimination; (2) in failing to award him more than half of
the marital estate; and (3) in failing to retroactively modify temporary support
orders based upon the petitioner’s allegedly understated income. Because we
hold that a party’s actions after the divorce petition has been filed can be used
as a basis for the defense of recrimination, and that the respondent withdrew
his request to modify the temporary support orders, we affirm.

      The trial court found, or the record supports, the following facts. The
parties were married on July 27, 2002, and had two children prior to their
separation in 2011. The petitioner filed for divorce in December 2011, alleging
both fault and irreconcilable differences as grounds for divorce. See RSA
458:7, V (2004); :7-a (Supp. 2015). The respondent cross-petitioned for divorce
on fault-based grounds, due to the petitioner’s alleged adultery, see RSA 458:7,
II (2004), and irreconcilable differences.

       Approximately eleven months after the petitioner filed for divorce, the
respondent began a sexual relationship with another woman. The petitioner
filed a motion to dismiss, alleging recrimination by the respondent. The trial
court granted the motion over the respondent’s objection. In 2015, the court
entered a final decree of divorce citing irreconcilable differences as the cause of
the marital breakdown. This appeal followed.

       The respondent appeals the trial court’s dismissal of the fault-based
ground in his cross-petition for divorce. Specifically, he argues that his
infidelity, which occurred eleven months after the parties’ separation, could not
be used as a basis for the defense of recrimination. The petitioner argues that
the trial court did not err in granting the motion to dismiss because the
respondent was not an “innocent party” within the meaning of the statute.
RSA 458:7 (2004). The petitioner raises a preservation issue regarding this
argument, but we hold that the issue is properly presented because the
respondent’s notice of appeal alleged that the trial court erred in granting the
petitioner’s motion to dismiss. See Sup. Ct. R. 16(3)(b).

       In considering the trial court’s ruling on the motion to dismiss, “our
standard of review is whether the allegations in the [respondent’s] pleadings
are reasonably susceptible of a construction that would permit recovery.” In
the Matter of Kenick & Bailey, 156 N.H. 356, 358 (2007). “We assume the
[respondent’s] pleadings to be true and construe all reasonable inferences
drawn therefrom most favorably to [him].” Id. We note that the trial court
considered the undisputed claim that the respondent began a sexual
relationship with another woman after the petitioner filed for divorce, and
neither party argues that the trial court erred in doing so. Cf. Hill v.
Dobrowolski, 125 N.H. 572, 573 (1984) (considering facts outside the pleadings
where both parties and trial court did so below).

       Resolution of this issue requires us to engage in statutory interpretation.
We review a trial court’s interpretation of a statute de novo. See In the Matter
of Hampers & Hampers, 166 N.H. 422, 433 (2014). “We are the final arbiter of
the legislature’s intent as expressed in the words of the statute considered as a
whole.” Id. “We interpret legislative intent from the statute as written, and we
will not consider what the legislature might have said or add words that the
legislature did not include.” Id. Moreover, “[w]e interpret statutes in the
context of the overall statutory scheme and not in isolation.” Id.




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       RSA 458:7 states that “[a] divorce from the bonds of matrimony shall be
decreed in favor of the innocent party for any of” the enumerated causes
including “[a]dultery of either party.” RSA 458:7 (emphasis added).
“[I]nnocent” means “free from guilt,” and “[o]ur court has stated flatly that a
spouse who is guilty of an offense against the other spouse, which would be
grounds for divorce, cannot himself obtain” a divorce under RSA 458:7.
Rockwood v. Rockwood, 105 N.H. 129, 131 (1963) (quotations omitted). “In
other words, recrimination is a defense against a spouse who is not innocent.”
Id.

       “Generally, although the misconduct of the plaintiff occurs after the
commencement of his or her suit, it is as fully effective to bar the right to a
[fault-based] divorce therein as if it had occurred previous to the
commencement of the suit.” 24 Am. Jur. 2d Divorce and Separation § 162, at
368 (2008). This general proposition is reflected in the plain language of RSA
458:7, which states that a divorce “shall be decreed in favor of the innocent
party.” RSA 458:7. The statute necessarily requires that one be an “innocent
party” at the time of the decree. Id. The statute makes no exception for fault-
based grounds that arise prior to the final decree, regardless of whether they
arise before or after the filing of the divorce petition. See id. Therefore, the
trial court correctly considered the respondent’s post-petition conduct when
deciding the motion to dismiss.

       Here, it is undisputed that the respondent was still married when he
began a sexual relationship with a woman who was not his wife. See In the
Matter of Blanchflower & Blanchflower, 150 N.H. 226, 227 (2003) (defining
adultery as “voluntary sexual intercourse between a married man and someone
other than his wife” (quotation omitted)); see also In the Matter of Dube &
Dube, 163 N.H. 575, 579-80 (2012) (holding that husband’s infidelity
precluded him from claiming status as an “innocent party” under RSA 458:7).
Thus, we are not persuaded that the trial court erred by granting the
petitioner’s motion to dismiss.

      The respondent argues that the defense of recrimination is unavailable to
the petitioner because his adultery did not cause the breakdown of the
marriage. However, recrimination does not turn upon which party’s conduct
caused the marital breakdown. Rather, the “right to set up one matrimonial
offense in bar of another is an application of the equitable rule that one who
invokes the aid of a court must come into it with a clear conscience and clean
hands.” Brewies v. Brewies, 178 S.W.2d 84, 85 (Tenn. Ct. App. 1943)
(quotation omitted); De Burgh v. De Burgh, 250 P.2d 598, 605 (Cal. 1952)
(noting that the defense of recrimination is encompassed within the unclean
hands doctrine). Thus, it need only be shown that a spouse is not an “innocent
party” because he or she “is guilty of an offense against the other spouse,
which would be grounds for divorce.” Rockwood, 105 N.H. at 131 (quotation
omitted). Causation is not an element of the defense of recrimination.


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      The respondent also asserts that “[i]t is not reasonable to suggest, in
these times of protracted discovery and litigation, that a party to a divorce
must remain celibate for the duration of the proceedings” to obtain a fault-
based divorce. However, this argument is made in the wrong forum. “Matters
of public policy are reserved for the legislature, and we therefore leave to it the
task of addressing the [respondent’s] concerns.” Petition of Kilton, 156 N.H.
632, 645 (2007).

       Given our conclusion that the trial court did not err in dismissing the
respondent’s fault-based divorce cross-petition, we need not address his
argument that the court should have awarded him more than half of the
marital estate. That argument is premised upon his erroneous contention that
the trial court should not have granted the petitioner’s motion to dismiss his
cross-petition for a fault-based divorce. See Chabot v. Chabot, 126 N.H. 793,
795 (1985) (“[I]f the plaintiff does not prove fault on which divorce can be
granted and the court grants a divorce on the ground of irreconcilable
differences, fault would not be considered on the questions of property division
or alimony.”).

      The respondent next argues that the trial court erred by failing to grant
his motion to modify its temporary support orders, due to the petitioner’s
alleged underreporting of her income. The petitioner argues that because the
respondent withdrew this motion in the trial court, the court did not err. We
agree with the petitioner.

       The respondent filed his motion to modify in March 2013. At that time,
the trial court ruled that the motion would be considered during the final
hearing. However, on June 26, 2014, more than year later, the court held a
hearing on pending motions, including the modification motion. At that
hearing, respondent’s counsel stated that the respondent “never attempted to
modify” the temporary support orders based upon the petitioner’s “grossly
under reported financial affidavit.” When counsel for the petitioner pointed out
the respondent’s March 2013 motion, respondent’s counsel replied that “[i]t
was withdrawn, Judge, never presented.” The court’s order on the pending
motions, which adjusted the parties’ temporary support obligations based upon
other considerations, does not mention the issue of the petitioner’s allegedly
underreported income. The court added that its order “resolve[d] all pending
motions before the Court.” Respondent’s trial counsel later claimed that he
had not withdrawn the motion.

       We are not persuaded by any of the respondent’s arguments that the
issue regarding the petitioner’s alleged underreported income is properly before
us. He argues that the “issue of withdrawal . . . was waived” because the
petitioner “did not cross-appeal.” However, the respondent fails to explain this
bare assertion; thus, we reject it as undeveloped. See Auger v. Town of
Strafford, 156 N.H. 64, 68 (2007). The respondent, who is represented by


                                         4
different counsel on appeal, also questions what motive trial counsel could
have had to withdraw the motion and argues that “at most there was some sort
of misunderstanding.” However, trial counsel’s motives are irrelevant: the
record shows that counsel made an unambiguous representation to the court
that he had, in fact, withdrawn the motion. Therefore, we are not persuaded
that the court erred when it did not address this issue.

      Finally, “any issues raised in the notice of appeal, but not fully briefed,
are deemed waived.” Mountain View Park, LLC v. Robson, 168 N.H. 117, 121
(2015).

                                                   Affirmed.

      DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.




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