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                   THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________

10th Circuit Court - Derry Family Division
No. 2015-0253


        IN THE MATTER OF DEBORAH MUNSON AND CORALEE BEAL

                               Argued: May 5, 2016
                         Opinion Issued: August 19, 2016

      Crusco Law Office, PLLC, of Bedford (Kysa M. Crusco on the brief and
orally), for the petitioner.


      Shaheen & Gordon, P.A., of Manchester and Saco, Maine (Paul R. Kfoury,
Sr., Andrea Q. Labonte, and Courtney Michalec Hart on the brief, and Mr.
Kfoury orally), for the respondent.


      American Civil Liberties Union of New Hampshire, of Concord (Gilles R.
Bissonnette on the brief), and Gay & Lesbian Advocates & Defenders, of
Boston, Massachusetts (Mary L. Bonauto on the brief), for American Civil
Liberties Union of New Hampshire and Gay & Lesbian Advocates & Defenders,
as amici curiae.

      HICKS, J. The respondent, Coralee Beal, appeals a divorce decree of the
Circuit Court (Sadler, J.) awarding the petitioner, Deborah Munson, what Beal
represents to be eighty-eight percent of the value of the marital estate. The
court awarded Beal the remaining twelve percent and alimony. Munson filed a
cross-appeal, but later withdrew it. Beal argues that the court erred by failing
to consider the parties’ approximately fifteen-year period of premarital
cohabitation when it determined the provisions of the decree. We hold that the
trial court may consider premarital cohabitation when formulating an equitable
distribution of marital property. See RSA 458:16-a, II (2004). Accordingly, we
vacate both the property distribution and alimony award and remand for
further proceedings.

      The trial court found, or the record supports, the following facts.
Munson and Beal met in 1992. The following year, they began living together
in Munson’s home in Chester. Approximately fifteen years later, on October 8,
2008, the parties entered into a civil union, and, on January 1, 2011, their civil
union converted to a marriage by operation of law. See RSA 457:46, II (Supp.
2015). On March 28, 2012, Munson filed a petition for divorce.

     At trial, Munson took the position that the parties’ marriage was a short-
term marriage. Beal challenged that position in her trial memorandum:

       Prior to the legalization of gay marriage, [Beal] and [Munson] did
       what the law allowed them to do as any other married couple to
       provide for the other, including, but not limited to executing estate
       plans that left respective estates to the other, [Munson] providing
       life and health insurance for her partner’s benefit, having joint
       accounts, commingling bank and credit card accounts, sharing
       duties within the home and finally joining together in a civil union
       and legal marriage.

Beal argued that “[t]he Court must consider the parties[’] lengthy twenty-one
year relationship . . . when ordering [a] . . . distribution of the marital property
in this matter.” (Underlining and bolding omitted.)

       The trial court granted the parties a divorce based upon irreconcilable
differences. In its decree, the court made extensive findings of fact concerning
the parties’ premarital relationship; however, it determined that “the effect of
the civil union between [the parties] on October 8, 2008 started their marriage
and the issues in their divorce will be determined using that as the start date.”
(Bolding omitted.) It then found that the parties’ marriage was “short-term”
and concluded that “this is a special circumstance wherein distribution of the
assets is not equal.” Based upon these findings, the court ordered the
distribution of approximately twelve percent of the marital estate to Beal and
that Munson pay $500 per month in alimony to Beal for a term of five years.


 For purposes of this appeal, we accept Beal’s percentages as accurate. When asked about the
percentages at oral argument, Munson’s counsel stated that, although she had not verified them
herself, she did not dispute their accuracy.


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       On appeal, Beal challenges the trial court’s division of the marital
property as well as the amount of the alimony award. “We afford trial courts
broad discretion in determining matters of property distribution, alimony and
child support in fashioning a final divorce decree.” In the Matter of Crowe &
Crowe, 148 N.H. 218, 221 (2002). “We will not overturn a trial court’s decision
on these matters absent an unsustainable exercise of discretion or an error of
law.” In the Matter of Costa & Costa, 156 N.H. 323, 326 (2007) (citation
omitted).

      We first address the trial court’s division of the marital property. Under
RSA 458:16-a, the marital estate includes “all tangible and intangible property
and assets, real or personal, belonging to either or both parties, whether title to
the property is held in the name of either or both parties.” RSA 458:16-a
(2004) (emphasis added). “The statute does not classify property based upon
when or by whom it was acquired, but rather assumes that all property is
susceptible to division.” In the Matter of Crowe & Crowe, 148 N.H. at 221.

       RSA 458:16-a, II grants the trial court the authority to equitably divide
the marital estate: “When a dissolution of a marriage is decreed, the [trial]
court may order an equitable division of property between the parties.” RSA
458:16-a, II. The statute requires the court to “presume that an equal division
is an equitable distribution of property.” Id. We have interpreted the statute to
require that, “[a]bsent special circumstances, the court must make the
distribution as equal as possible.” In the Matter of Sarvela & Sarvela, 154 N.H.
426, 430 (2006).

        However, RSA 458:16-a, II also permits the court to find “that an equal
division would not be appropriate or equitable after considering one or more of”
fifteen enumerated factors. RSA 458:16-a, II. The factors include “the length
of the marriage, the ability of the parties to provide for their own needs, the
needs of [a] custodial parent, the contribution of each party during the
marriage and the value of property contributed by each party.” In the Matter of
Sarvela & Sarvela, 154 N.H. at 430 (quotation omitted); see RSA 458:16-a,
II(a)-(o). The statute also permits the court to “consider any other factor it
deems relevant in equitably distributing the parties’ assets.” In the Matter of
Sarvela & Sarvela, 154 N.H. at 431; see RSA 458:16-a, II(o).

       In discussing the length of the marriage, we have noted that “[a] marriage
of only one or two years may be considered differently than a long-term
marriage of ten, twenty, or thirty years.” In the Matter of Sarvela & Sarvela,
154 N.H. at 431 (quotation omitted). We have observed that, “[i]n a short-term
marriage, it is easier to give back property brought to the marriage and still
leave the parties in no worse position than they were in prior to it.” Id.
(quotation omitted). However, we have explained that “[t]he duration of a
marriage is but one of the factors for a court to consider when equitably
dividing the parties’ property,” and that it may not always be equitable “to treat


                                        3
a short-term marriage differently from a long-term marriage.” In the Matter of
Hampers & Hampers, 154 N.H. 275, 286 (2006). We have also emphasized the
general principle that, “[i]n a divorce proceeding, marital property is not to be
divided by some mechanical formula but in a manner deemed ‘just’ based upon
the evidence presented and the equities of the case.” In the Matter of Sarvela &
Sarvela, 154 N.H. at 431 (quotation omitted).

      Here, the trial court focused its analysis almost entirely upon the
duration of the parties’ marriage. See RSA 458:16-a, II(a). The court
acknowledged Beal’s arguments about the parties’ lengthy period of premarital
cohabitation, but ruled that the “issues in [the parties’] divorce will be
determined using” the date when the parties entered into a civil union, October
8, 2008, “as the start date.” (Bolding omitted.) Based upon that “start date,”
the court concluded that the parties’ marriage was “a short-term marriage,”
and ordered an unequal distribution of the marital property. (Bolding omitted.)
The court also noted that it “decline[d] [Beal’s] invitation to declare the parties
married upon their cohabitation in the 1990s.” Thus, it appears that the court
did not consider the parties’ period of premarital cohabitation when it divided
their marital estate.

      Beal argues that the “parties’ lengthy cohabitation and commingling of
assets, along with all the many legal steps they took to solidify their
commitment . . . compel a finding that their relationship was in effect a long-
term marriage.” Alternatively, she argues that, “at a minimum, the [trial] court
should have applied equitable principles to consider the commingling of assets
before 2008.” She asserts that, by focusing “primarily on one . . . factor[], the
length of the parties’ legal marriage, . . . the [trial] court ignored the substantial
and uncontroverted evidence developed at trial that the parties had a
committed romantic and financial partnership long before 2008.”

      Munson counters that “[t]here is no need to fashion a new rule as [Beal]
urges that would label periods of cohabitation as a marriage because the trial
court already has the discretion to consider it.” According to her, the “court
weighed the parties’ testimony and evidence, the statutory factors, and each
parties’ [sic] financial situation[] before constructing an equitable division of the
property.” She argues that, “[b]ased on the totality of the circumstances,
including the parties’ lengthy cohabitation, the trial court reasonably
concluded that each party should keep [her] own assets and debts except for a
portion . . . of . . . [Munson’s] retirement accounts and pension to be
transferred to [Beal].”

      The parties appear to agree that, under RSA 458:16-a, II, premarital
cohabitation is a permissible factor for the court to consider when dividing
marital property. Their principal disagreement concerns whether the trial
court erred in not doing so.



                                          4
       We have twice found it unnecessary to decide whether the trial court may
consider premarital cohabitation under RSA 458:16-a, II. In Hoffman v.
Hoffman, 143 N.H. 514 (1999), the trial court took into account the parties’
five-year cohabitation period along with their twelve-year marriage, concluded
that the parties’ relationship was long-term, and awarded the plaintiff, among
other things, nearly half of the marital estate. Hoffman, 143 N.H. at 516, 522.
We declined to decide whether the trial court erred by “tack[ing] the five-year
cohabitation period onto the twelve-year marriage period” because, we
concluded, “[e]ven without considering the five-year premarital relationship, the
court could have regarded the [parties’] twelve-year marriage as long-term.” Id.
at 522. In In the Matter of Crowe and Crowe, we decided against “fashion[ing]
a specific rule regarding premarital cohabitation as it relates to the division of
property.” In the Matter of Crowe & Crowe, 148 N.H. at 222. We rejected the
petitioner’s argument that the trial court “erroneously subsumed the period of
premarital cohabitation into the duration of the marriage and treated as
marital assets property acquired during that time period,” id. at 221, because,
we observed, “RSA 458:16-a, I, makes no distinction between property brought
to the marriage by the parties and that acquired during marriage; thus, all
property owned by each spouse, regardless of the source, may be included in
the marital estate,” id. at 222.

      Courts in several other jurisdictions, however, have held that premarital
cohabitation is a factor that the trial court may consider when dividing marital
property or awarding alimony. For instance, in reviewing an alimony award
under a statute containing language similar to that in RSA 458:16-a, the Court
of Appeals of Oregon noted:

      Although we agree with husband that the statute plainly refers to
      “duration of the marriage” as one factor that the court may
      consider in determining an award of spousal maintenance, we note
      that the statute’s final subsection gives the court broad discretion
      to consider other factors that “the court deems just and equitable.”

Lind and Lind, 139 P.3d 1032, 1040 (Or. Ct. App. 2006). The court could “see
no reason why that discretion necessarily excludes considering the length of
the parties’ premarital cohabitation.” Id. Moreover, addressing a factual
scenario that was similar to the one in this case, the Court of Appeals of
Michigan rejected the defendant’s argument “that he and [the] plaintiff had a
short-term marriage,” and held that the trial court did not err in its
consideration of “all of the factors which [were] relevant to the equitable
division of the parties’ property,” including a fifteen-year period of premarital
cohabitation. Nielsen v. Nielsen, 446 N.W.2d 356, 357 (Mich. Ct. App. 1989).
Several other courts have reached similar conclusions. See, e.g., Chen v.
Hoeflinger, 279 P.3d 11, 25 (Haw. Ct. App. 2012) (“In this case, it does not
contravene a just and equitable division of property to consider the parties’
premarital cohabitation, even though one of the parties might have been legally


                                        5
married to someone else at that time.”); Bertholet v. Bertholet, 725 N.E.2d 487,
495 (Ind. Ct. App. 2000) (“[A] trial court may consider periods of cohabitation
followed by marriage in determining a proper distribution of the marital estate.”
(quotation omitted)); In re Marriage of Clark, 71 P.3d 1228, 1231 (Mont. 2003)
(“[I]t would be inequitable to disregard [the parties’] premarital cohabitation
when considering [the wife’s] contributions to the marital estate.”).

       We have identified only one court — the Connecticut Supreme Court —
that has declined to permit the trial court to consider premarital cohabitation.
In Loughlin v. Loughlin, 910 A.2d 963 (Conn. 2006), the court concluded that
“consideration of a period of cohabitation that precedes a marriage as part of
the statutory factor of ‘length of the marriage’ in a dissolution action is
improper” because Connecticut “draw[s] a clear distinction between marriage
and cohabitation, and . . . award[s] greater rights and protections to persons
who make the formal legal commitment of marriage.” Loughlin, 910 A.2d at
972, 973. However, the court acknowledged that “events that occur during a
period of cohabitation” may “indirectly bear[] on other statutory criteria, such
as the health, station, occupation, amount and sources of income, vocational
skills . . . [and] employability.” Id. at 972-73 (quotation omitted).

      The Loughlin court was interpreting a statutory provision similar to RSA
458:16-a, II(a). Consistent with Loughlin’s reasoning, we conclude that the
“duration of the marriage,” RSA 458:16–a, II(a), plainly refers to the period
during which the parties were married, which, as a matter of law, does not
include premarital cohabitation. See Loughlin, 910 A.2d at 973. Accordingly,
we reject Beal’s assertion that the “parties’ lengthy cohabitation and
commingling of assets . . . compel a finding that their relationship was in effect
a long-term marriage.”

       However, we note that, like the statute analyzed in Lind, RSA 458:16, II
permits the trial court to consider, apart from the enumerated factors, “[a]ny
other factor that [it] deems relevant.” RSA 458:16-a, II(o); see Lind, 139 P.3d at
1040. And, as both the Lind and Loughlin courts recognized, premarital
cohabitation may be relevant to the distribution of marital property. For
instance, a couple living together may commingle their finances or jointly
acquire property in anticipation of marriage. Their marriage may not occur for
several years, and after it occurs, it may be short in duration. Still, the couple
may have become dependent upon the assets that they shared prior to
marriage, such that it may not be just for a court in divorce proceedings to
ignore their cohabitation period when determining what constitutes an
equitable property division. As the amici explain, when a divorcing couple’s
relationship has included “years of economically interdependent cohabitation
followed by a ‘short’ marriage, the notion of returning the parties to their
original pre-marital position is unrealistic” because “the relationship was not,
in any relevant way, short-term.” See Nielsen, 446 N.W.2d at 357.



                                        6
       Thus, we see no reason why RSA 458:16-a, II(o), which broadly permits
the trial court to consider “[a]ny other factor that [it] deems relevant,” would
not permit the court to consider premarital cohabitation. We therefore hold
that premarital cohabitation is a factor that the court may consider in divorce
proceedings when determining whether to depart from the presumption that
“an equal division is an equitable distribution of property.” RSA 458:16-a.

       Here, the trial court found that, prior to entering into a civil union, the
parties had lived together since 1993; “shared a joint account into which most
of [their] funds were deposited and out of which the bills were paid”; “obtained
personal property, decorated the home and acquired additional debt”; and filed
with Munson’s employer two “Affidavit[s] of Life Partnership . . . to establish
their rights as a couple”; among other things. However, the court apparently
ignored these findings when it decided to depart from the statutory
presumption, which suggests that it believed that it had no discretion to
consider them. Although, until now, we have not expressly held that
premarital cohabitation may be considered a factor under RSA 458:16-a, II, we
conclude that, by not taking these findings into account, the court did not
exercise the full breadth of its discretion under the statute.

       The “[f]ailure to exercise discretion constitutes an [unsustainable
exercise] of discretion.” DeButts v. LaRoche, 142 N.H. 845, 847 (1998); see
State v. Lambert, 147 N.H. 295, 296 (2001) (explaining “unsustainable exercise
of discretion”). Having concluded that the court has the discretion to consider
premarital cohabitation under RSA 458:16-a, II, we hold that the court’s failure
to do so in this case rendered its division of the parties’ marital property
unsustainable. Accordingly, we vacate that portion of the court’s decree.

       We now turn to the court’s alimony award. RSA 458:19 grants the trial
court the authority to “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.” RSA 458:19, I (Supp. 2015). When “determining the amount
of alimony,” the court must consider all of the factors that the statute
enumerates. RSA 458:19, IV(b); see In the Matter of Crowe & Crowe, 148 N.H.
at 225 (listing the statutory factors that the trial court “must consider”
(emphasis added)). One of those factors is “the property awarded under RSA
458:16-a.” RSA 458:19, IV(b). We conclude that the court’s division of the
marital property under RSA 458:16-a was unsustainable; thus, the court could
not have adequately considered it in determining the amount of alimony under
RSA 458:19, IV(b). We therefore vacate the court’s alimony award.

      Munson argues that, because “[s]ame-sex civil unions and marriage were
available to [her] and [Beal] in neighboring states long before New Hampshire
enacted civil unions,” the “notion that [she] and [Beal] would have married long
before they did if they were able to is a fallacy.” Accordingly, Munson



                                        7
concludes, “[Beal’s] reliance on the argument that civil union and/or marriage
[were] not available . . . prior to 2008 is misplaced.”

       Whether Munson and Beal could have entered into a civil union or
married earlier does not affect our analysis. Had they done so, their period of
premarital cohabitation would have been shorter, but, for the reasons
previously discussed, it would have still remained a relevant factor in the
determination of an equitable property division. We further note that
premarital cohabitation is not unique to same-sex couples. See Pew Research
Ctr., The Decline of Marriage and Rise of New Families 66 (2010),
http://www.pewsocialtrends.org/files/2010/11/pew-social-trends-2010-
families.pdf (“Since 1990, when the Census Bureau first allowed people to
designate themselves on the census form as ‘unmarried partners,’ the number
of cohabiting adults has nearly doubled. In 2008, 6.2 million households were
headed by people in cohabiting relationships . . . . They included 565,000
same-sex couples.”). Our holding that the court may consider premarital
cohabitation applies to all divorce proceedings.

       Munson also states that “the New Hampshire Constitution prohibits the
retroactive enforcement of laws that affect substantive rights or impose new
duties or obligations,” and argues that “[t]here is no reason to implement a
retroactive marital status because the trial court had the discretion to consider
the cohabitation and the status of the law regarding same-sex marriage.” We
find this argument unavailing. Here, we interpret the property settlement
statute to allow the trial court to consider premarital cohabitation as a factor
separate from the duration of the marriage. We do not, as Munson argues,
“implement a retroactive marital status” that adds the period of premarital
cohabitation to the length of the parties’ legal marriage.

      We remand for further proceedings consistent with this opinion.

                                                  Vacated and remanded.

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




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