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                  THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


2nd Circuit Court – Lebanon Family Division
No. 2013-401


                            IN THE MATTER OF
               JOHN G. LYON AND KIMBERLY ANNE WHITE LYON

                           Submitted: January 22, 2014
                           Opinion Issued: May 30, 2014

      Vitt, Brannen & Loftus, PLC, of Norwich, Vermont (John B. Loftus, III on
the brief), for the petitioner.


      Rebecca A. Wagner, of West Lebanon, by brief, for the respondent.

       CONBOY, J. The respondent, Kimberly Lyon (now McConnell) (Wife),
appeals an order of the 2nd Circuit Court – Lebanon Family Division (MacLeod,
J.) granting summary judgment to the petitioner, John G. Lyon (Husband), and
denying her petition to bring forward and modify alimony. On appeal, she
argues that the trial court applied the wrong standard to her petition by
requiring her to show a substantial change of circumstances. She contends
that to prevail on her petition, she must show that she has a continuing need
for alimony and that the Husband has a continuing ability to pay. Although we
agree with the Wife that the “substantial change of circumstances” test is not
the correct one to apply to the Wife’s petition, we disagree with the standard
that she articulates on appeal. Because the trial court did not apply the
correct standard when it ruled on the Wife’s petition, we vacate and remand.
       The record establishes the following facts. The parties divorced in May
2007. Their divorce decree incorporated their permanent stipulation, which
required the Husband to pay the Wife $3,000 in monthly alimony from January
1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1,
2007, through June 30, 2012, “or until the death of either party, whichever
first occurs.”

       On May 31, 2012, the Wife filed a petition to extend the soon-to-expire
alimony award for another three years. She alleged in her petition that she
needed another three years of alimony because she was newly diagnosed with
attention deficit hyperactivity disorder and, without alimony, could not afford
the medication that would enable her to timely finish her education. The
Husband moved for summary judgment, arguing that the Wife’s petition failed
to establish that there was an unanticipated or unforeseeable substantial
change of circumstances that warranted extending the existing alimony order
for another three years. See Laflamme v. Laflamme, 144 N.H. 524, 527-29
(1999). Although the Wife timely objected to the Husband’s motion, she failed
to support her pleading with the requisite affidavits or other competent
evidence “showing specifically and clearly reasonable grounds for believing that
contradictory evidence can be presented at trial.” RSA 491:8-a, II (2010).
Accordingly, when ruling on the Husband’s motion, the trial court accepted the
facts set forth therein as true. See RSA 491:8-a, IV (2010). The trial court
agreed with the Husband that the “substantial change of circumstances” test
applied to the Wife’s petition and ruled in the Husband’s favor. This appeal
followed.

       “In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party.” Dichiara v. Sanborn
Reg’l. Sch. Dist., 165 N.H. ___, ___, 82 A.3d 225, 227 (2013). “If our review of
that evidence discloses no genuine issue of material fact, and if the moving
party is entitled to judgment as a matter of law, we will affirm the grant of
summary judgment.” Id. at ___, 82 A.3d at 227. “We review the trial court’s
application of the law to the facts de novo.” Id. at ___, 82 A.3d at 227.

      The Wife argues that the trial court erred by subjecting her petition to
the same standards that govern a motion to modify an alimony award.
Although she concedes that a party seeking to modify an alimony award must
show “that a substantial change in circumstances has arisen since the initial
award, making the current [alimony] amount either improper or unfair,” she
contends that a party seeking to renew an alimony award need not meet that
test. Laflamme, 144 N.H. at 527 (quotation omitted). She argues that the
2001 amendments to RSA 458:14 (2004) and RSA 458:19 (Supp. 2013)
“show[ ] that the legislature intended for renewals to be subject to the same
standard as initial awards of alimony under RSA 458:19, I, i.e., that the moving



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party show a need for alimony and an ability to pay on the part of the party
from whom it is sought.” She also argues that “[s]uch a standard makes sense
from a public policy standpoint.”

      The Husband does not dispute that the Wife’s petition was to renew a
soon-to-expire alimony award. However, he argues that the “substantial
change in circumstances” test applies to both motions to modify alimony and
motions to renew an expired alimony award.

       Resolving the issues in this appeal requires us to engage in statutory
interpretation. We review the trial court’s statutory interpretation de novo. In
re Guardianship of Eaton, 163 N.H. 386, 389 (2012). 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
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. When the language of a
statute is plain and unambiguous, we do not look beyond it for further
indications of legislative intent. Smith v. City of Franklin, 159 N.H. 585, 588
(2010). However, we review legislative history to aid our analysis when the
statutory language is ambiguous or subject to more than one reasonable
interpretation. Id.

      RSA 458:19 provides, in part:

            I. Upon motion of either party for alimony payments, the
      court shall make orders for the payment of alimony to the party in
      need of alimony, either temporary or permanent, for a definite or
      indefinite period of time, if the motion for alimony payments is
      made within 5 years of the decree of nullity or divorce and the
      court finds that:

                   (a) The party in need lacks sufficient income, property,
      or both, including property apportioned in accordance with RSA
      458:16-a, to provide for such party’s reasonable needs, taking into
      account the style of living to which the parties have become
      accustomed during the marriage; and

                  (b) The party from whom alimony is sought is able to
      meet reasonable needs while meeting those of the party seeking
      alimony, taking into account the style of living to which the parties
      have become accustomed during the marriage; and




                                         3
                   (c) The party in need is unable to be self-supporting
      through appropriate employment at a standard of living that meets
      reasonable needs or is allocated parental rights and
      responsibilities under RSA 461-A for a child of the parties whose
      condition or circumstances make it appropriate that the parent not
      seek employment outside the home.

             II. Upon motion of either party, the court may make orders
      for the payment of an alimony allowance when such orders would
      be just and equitable.

            III. Upon a decree of nullity or divorce, or upon the renewal,
      modification, or extension of a prior order for alimony, the court
      may order alimony to be paid for such length of time as the parties
      may agree or the court orders.

            ....

           VII. In cases where the court issues an order for permanent
      alimony for a definite period of time, such order may be renewed,
      upon the petition of either party, provided that such petition is
      made within 5 years of the termination date of the permanent
      alimony order. Nothing in this paragraph shall be construed to
      change or alter in any way the terms of the original alimony order.

RSA 458:14 provides: “Except as otherwise provided in RSA 458:19, I and VII,
the court, upon proper application and notice to the adverse party may revise
and modify any order made by it, may make such new orders as may be
necessary, and may award costs as justice may require.”

      The Wife’s argument that the standards governing initial alimony awards
apply to awards renewed after they expire is contrary to the plain language of
RSA 458:19, I, as we have previously interpreted it. RSA 458:19, I, applies to a
motion “of either party for alimony payments.” In In the Matter of Canaway &
Canaway, 161 N.H. 286, 290 (2010), we explained that this “limiting phrase”
makes RSA 458:19, I, applicable to “a motion for new alimony payments.”
Here, the Wife’s petition to “renew” alimony was not a petition for “new alimony
payments,” but was a petition to extend or renew the existing alimony award.

      The Wife’s argument also has no support in the legislative history of the
2001 amendments to RSA 458:14 and RSA 458:19. See In re Juvenile 2005-
212, 154 N.H. 763, 766 (2007) (statute’s silence “arguably creates an
ambiguity” allowing resort to legislative history). As we have previously
explained in another context, the legislative history shows that those
amendments were intended solely to create a five-year limitations period on



                                       4
applications for new alimony when no alimony was ordered in the original
decree and on applications for renewed alimony when the original alimony
award expired. See In the Matter of Kenick & Bailey, 156 N.H 356, 359 (2007);
N.H.S. Jour. 1275 (2001). The legislative history, like the plain language of the
statutes themselves, is silent with regard to the standards to apply to petitions
to renew an expired alimony award.

       The 2001 legislation, House Bill (HB) 509, added paragraph VII to RSA
458:19, added the phrase “if the motion for alimony payments is made within 5
years of the decree of nullity or divorce” to RSA 458:19, I, and added the
phrase “[e]xcept as otherwise provided in RSA 458:19, I and VII” to RSA
458:14. See Laws 2001, 246:1-:3. Before HB 509 was enacted, a spouse could
seek alimony for the first time or could seek a renewal of a prior alimony award
at any time after the divorce became final. See RSA 458:14 (1992), :19 (Supp.
2000); see also In the Matter of Kenick & Bailey, 156 N.H. at 359; N.H.S. Jour.
1275 (2001). The purpose of the 2001 legislation was to “create[ ] [a] . . .
statute of limitations on establishing or renewing alimony either from the date
of the divorce or nullity decree or from the date of the termination date of
alimony payments.” N.H.H.R. Jour. 1073 (2001).

       In accord with that purpose, RSA 458:19, I, was amended to require that
any new petition for alimony be “made within 5 years of the decree of nullity or
divorce,” and RSA 458:19, VII was added to require that any petition to renew a
prior award of permanent alimony for a definite period be “made within 5 years
of the termination date of the permanent alimony order.” Laws 2001, 256:2,
:3. At the same time, the legislature amended RSA 458:14 to add the exception
language – “Except as otherwise provided in RSA 458:19, I and VII.” Laws,
2001, 256:1. In context, that language clarifies that although, generally, RSA
458:14 allows a trial court in a divorce proceeding “upon proper application
and notice” to “revise and modify any order made by it” and “make such new
orders as may be necessary,” it does not authorize a trial court to make a new
alimony order or to renew an expired alimony order when the petition for such
order is filed outside of the five-year limitations period in RSA 458:19, I, and
VII.

      The Wife relies upon the statement of a single witness at a public hearing
before the senate judiciary committee who stated that he “assume[d]” that a
court would determine whether to grant a renewal “on the current criteria,”
which he stated involved examining “the need of the person that is requesting
alimony and the ability of the person that it’s being requested of to be able to
pay.” Senate Comm. on Judiciary, Hearing on HB 509 (May 16, 2001) at 5-6
(Testimony of John Cameron, Esq.). However, this same witness explained that
the 2001 legislation was not intended to “change[ ] the rule that the court
applies” when deciding whether to award, modify, or renew alimony. Id. at 7.
There is no indication in the legislative history of either RSA 458:14 or RSA



                                        5
458:19 that the 2001 amendments were intended to abrogate our judicially-
created standards governing motions to renew an expired alimony award.

       In the instant case, the parties do not articulate, and the trial court did
not apply, the correct standard for renewing an expired alimony award. Our
prior cases make clear that when an alimony order has terminated and the
issue is whether it should be “extended or renewed, either in modified or
unmodified form, the burden is upon the party in whose favor the order is to
run to establish that justice requires a renewal or extension, and if so, what
justice requires as to amount[,] . . . in the light of all the circumstances then
existing.” Taylor v. Taylor, 108 N.H. 193, 195 (1967) (citations omitted); see
also Walker v. Walker, 133 N.H. 413, 417 (1990); Henry v. Henry, 129 N.H.
159, 161-62 (1987); Healey v. Healey, 117 N.H. 618, 621 (1977). We recognize
that our cases setting forth the standard governing petitions to renew were
decided when, in a divorce in which no children were involved or in which the
parties’ children had reached the age of majority, alimony automatically
expired after three years. See RSA 458:19 (1983); see also In the Matter of
Canaway & Canaway, 161 N.H. at 291. Nonetheless, we conclude that the
standard we adopted for alimony awards that expired automatically by statute
also applies to awards that expire of their own terms. Because the trial court
in this matter did not consider the Wife’s petition under the correct standard,
we vacate its order and remand for further proceedings consistent with this
opinion.

                                                   Vacated and remanded.

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




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