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                  THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________


7th Circuit Court – Dover Probate Division
No. 2012-850


                       IN RE ESTATE OF LUCIEN COUTURE

                           Argued: November 14, 2013
                        Opinion Issued: February 21, 2014

      McNeill, Taylor & Gallo, P.A., of Dover (R. Peter Taylor on the brief and
orally), for the petitioner.

      Wing & Weintraub, P.C., of Milford (David C. Wing on the brief and
orally), for the respondent.

       CONBOY, J. The respondent, Hellen Couture, appeals an order of the
7th Circuit Court – Dover Probate Division (Cassavechia, J.), which granted the
petition of the petitioner, Thomas Couture, the adult son of the decedent,
Lucien Couture, to impose a constructive trust, for the benefit of the decedent’s
heirs, over certain life insurance proceeds paid to the respondent upon the
decedent’s death. We affirm and remand.

I. Background

       The parties either do not dispute, or the record establishes, the following
facts. The petition for a constructive trust is grounded upon the claim that the
respondent, the decedent’s wife, through fraud, deceit, and misrepresentation,
induced the decedent to marry her after she gave birth to a daughter whom she
claimed was his. The $140,000 life insurance proceeds were paid equally to
the respondent and to the daughter pursuant to the decedent’s beneficiary
designation. The petitioner sought a constructive trust over only the
respondent’s portion of the insurance proceeds, which were placed in escrow
when the petition was filed.

       The respondent and the decedent married in September 2003, a few days
after the child was born. The child’s birth certificate lists the decedent as her
father. Although the decedent had had a vasectomy many years before the
respondent’s pregnancy, he did not question whether the child was his
biological child. Nor did he seek medical confirmation or further evaluation as
to whether he could have fathered the child.

       Following their marriage, the decedent, the respondent, and the child did
not live together as a family. Instead, the decedent lived in Rochester, and the
respondent and the child lived together in Somersworth. Unbeknownst to the
decedent, the respondent had a concurrent relationship with John Tamara.
The trial court found the relationship was “more likely than not” a marriage.
The respondent and Tamara continued their relationship throughout the
respondent’s marriage to the decedent.

      In December 2005, the decedent designated the respondent and the child
as his beneficiaries of a death benefit payable under an employer-provided life
insurance policy. In October or November 2007, Tamara, the respondent, and
her daughter moved to Hawaii. The respondent and her daughter returned to
New Hampshire in 2008 and lived with the decedent for approximately one
month. In August 2008, the decedent filed a petition to divorce the
respondent. On January 7, 2009, only days before the final divorce hearing
was scheduled to occur, the decedent committed suicide. He died intestate.
Pursuant to the subject beneficiary designation form, fifty percent of the death
benefit was paid to the respondent and fifty percent was paid to the child.

       In February 2009, the decedent’s sister brought the petition for a
constructive trust. When it was determined that the sister lacked standing, the
court allowed the petitioner to be substituted as a party. In November 2011,
the respondent moved to dismiss the petition on the grounds that the trial
court lacked subject matter jurisdiction to impose a constructive trust on her
share of the life insurance proceeds, and that the instant claim was not yet
justiciable. The trial court denied the motion, and the case proceeded to trial.

      Based upon the evidence at trial, the trial court found that the petitioner
had established by clear and convincing evidence that the respondent
wrongfully induced the decedent to marry her, even though she was already
married to Tamara, “or at least in a more intimate marriage-like relationship
with him.” The trial court further found that the decedent provided life



                                        2
insurance death benefits to the respondent that “were spousal-based,” and that
it would be unconscionable for her to retain them “given her bad faith, deceit
and misrepresentations.” The trial court decided that if the respondent were
allowed to retain the proceeds, she would be unjustly enriched. Accordingly,
the court imposed a constructive trust on the respondent’s share of the life
insurance proceeds. The trial court denied the respondent’s subsequent
motion for reconsideration, and this appeal followed.

II. Analysis

      Our standard of review of a probate division decision is determined by
statute: “The findings of fact of the judge of probate are final unless they are so
plainly erroneous that such findings could not be reasonably made.” RSA 567–
A:4 (2007). Consequently, we will not disturb the probate division’s decree
unless it is unsupported by the evidence or plainly erroneous as a matter of
law. See In re Angel N., 141 N.H. 158, 161 (1996).

      A. Standing

       The respondent first argues that the petitioner lacks “standing” in the
instant dispute, even though he is one of the decedent’s heirs, and even though
she concedes in her brief that “[i]n the event that the constructive trust is
upheld,” the life insurance proceeds will be “award[ed] . . . to the Estate.” “In
evaluating whether a party has standing to sue, we focus on whether the party
suffered a legal injury against which the law was designed to protect.”
Libertarian Party of N.H. v. Sec’y of State, 158 N.H. 194, 195 (2008) (quotation
omitted). Here, the petitioner has standing to seek a constructive trust
because, as one of the decedent’s heirs, he has a direct legal or equitable
interest in the decedent’s estate. See RSA 561:1 (2007); cf. In re Estate of
Kelly, 130 N.H. 773, 778 (1988) (“[A] will contestant must generally have some
direct legal or equitable interest in the decedent’s estate” to have standing in an
action challenging a will’s validity.).

       We disagree with the respondent’s argument that the petitioner lacks
standing because, she, as the decedent’s surviving spouse, will be the ultimate
recipient of the life insurance proceeds pursuant to the intestate succession
statute. See RSA 561:1. As the trial court correctly observed, upon imposition
of the constructive trust, the respondent merely holds the life insurance
proceeds “as constructive trustee for the benefit of [the decedent’s] heirs.”

       We similarly reject the respondent’s contention that the petitioner “has
no legal or equitable rights at stake in the life insurance proceeds” because he
is not the decedent’s named beneficiary. Her reliance upon the beneficiary
form is mistaken. Because the proceeds have already been distributed
according to the beneficiary form, the fact that the petitioner is not named as a



                                        3
beneficiary is immaterial, and does not divest him of standing to pursue a
constructive trust on the respondent’s share of those proceeds.

      B. Jurisdiction

       The respondent next asserts that this case falls within the exclusive
jurisdiction of federal courts pursuant to the Employee Retirement Income
Security Act of 1974 (ERISA), see 29 U.S.C. §§ 1001 et seq. (2006 & Supp.
2012). Although there is no dispute that the life insurance plan at issue is an
ERISA-covered benefit plan, the respondent is mistaken in her assertion that
federal courts have exclusive jurisdiction over this petition for a constructive
trust.

       ERISA’s jurisdictional provision states: “Except for actions under
subsection (a)(1)(B) of this section, the district courts of the United States shall
have exclusive jurisdiction of civil actions under this subchapter brought by
the Secretary or by a participant, beneficiary, fiduciary, or any person referred
to in § 1021(f)(1) of this title.” 29 U.S.C. § 1132(e)(1) (2006). Section 1021(f)(1)
refers to: (1) the Pension Benefit Guaranty Corporation; (2) plan participants;
(3) plan beneficiaries; (4) employers; and (5) labor organizations. 29 U.S.C. §
1021(f)(1) (Supp. 2012). As we explain below, this is not a “civil action under
[ERISA].” 29 U.S.C. § 1132(e)(1). However, even if it were, the exclusive
jurisdiction provision does not apply because the petitioner is not a person to
whom section 1021(f)(1) refers. The respondent’s reliance upon Appeal of A & J
Beverage Distribution, 163 N.H. 228 (2012), is misplaced. In that case, the
petitioner was a plan participant. See Appeal of A & J Beverage Distribution,
163 N.H. at 230, 235.

      C. ERISA Preemption

            1. Express Preemption

      Alternatively, the respondent contends that the petitioner’s state law
constructive trust claim is preempted by a section of ERISA, which provides
that ERISA “supersede[s] any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan” described in the statute. 29
U.S.C. § 1144(a) (2006); see Appeal of A & J Beverage Distribution, 163 N.H. at
232. As we explained in Appeal of A & J Beverage Distribution, 163 N.H. at
232, “[e]arly interpretations of this language by the United States Supreme
Court relied heavily upon textual analysis and a dictionary definition of ‘relate
to’ and led to the conclusion that ERISA preemption was ‘conspicuous for its
breadth.’” (Quotation omitted.) Thus, in Ingersoll-Rand Co. v. McClendon, 498
U.S. 133, 139 (1990), the Court held that “[a] law ‘relates to’ an employee
benefit plan, . . . if it has a connection with or reference to such a plan.”
(Quotation omitted.)



                                         4
       Relying upon those early interpretations of ERISA preemption, the
respondent argues that the petitioner’s claim is preempted because it “is a
claim against death benefits from a life insurance policy pursuant to an
employee welfare benefit plan.” (Quotation omitted.) However, as we also
explained in Appeal of A & J Beverage Distribution, 163 N.H. at 232, the
Supreme Court has since “abandon[ed] strict textualism in favor of a more
nuanced approach” to ERISA preemption. (Quotation omitted.) Under the new
approach, “preemption issues must be decided by examining the objectives of
the ERISA statute as a guide to the scope of the state law that Congress
understood would survive, as well as the nature of the state law’s effect on
ERISA plans.” Appeal of A & J Beverage Distribution, 163 N.H. at 232
(quotation omitted). Thus, the Court identified three categories of state laws
that “relate to” ERISA plans such that their preemption furthers the purpose of
ERISA: (1) state laws that mandate employee benefit structures or their
administration; (2) state laws that bind plan administrators to a particular
choice; and (3) state law causes of action that provide alternative enforcement
mechanisms to ERISA’s enforcement regime. Id. at 233; see Hampers v. W.R.
Grace & Co., Inc., 202 F.3d 44, 51 (1st Cir. 2000).

       In Appeal of A & J Beverage Distribution, we concluded that the
petitioner’s state law whistleblower claim implicated the third category. See
Appeal of A & J Beverage Distribution, 163 N.H. at 233. We then held that
because ERISA provides a remedy for the conduct alleged in the petitioner’s
state law whistleblower complaint, his state law claim constituted a cause of
action that provided an alternative enforcement mechanism to ERISA’s
enforcement regime, and, therefore, was preempted by ERISA. Id. at 234.

       Although the respondent argues that the petitioner’s action here is also
an action to redress an ERISA violation, we disagree. The petitioner’s action is
a state law action to impose a constructive trust on benefits that have already
been paid according to the life insurance policy. Here, the plan administrator
complied with ERISA by paying the benefits pursuant to the decedent’s benefit
designation form. See 29 U.S.C. § 1104(a)(1)(D) (2006) (directing administrator
of ERISA-covered benefit plan to discharge her duties “in accordance with the
documents and instruments governing the plan”); see also Kennedy v. Plan
Administrator for DuPont Sav. and Investment Plan, 555 U.S. 285, 304 (2009)
(holding that an ERISA plan administrator must distribute benefits to the
beneficiary named in the plan). As the trial court here stated: “None of the
parties to this action have any issue with the employment benefit plan.” To the
extent that the respondent contends that ERISA provides a remedy equivalent
to a common law constructive trust, she has failed to brief this argument
sufficiently for appellate review.




                                       5
            2. Conflict Preemption

       We also reject the respondent’s assertion that the petitioner’s state law
constructive trust claim conflicts with, and, therefore, is preempted by, ERISA’s
anti-alienation provision, see 29 U.S.C. § 1056(d)(1) (2006). The anti-alienation
provision provides: “Each pension plan shall provide that benefits provided
under the plan may not be assigned or alienated.” Id. The respondent argues
that this provision not only required the plan administrators in this case to
distribute the life insurance proceeds to her, but also precluded the petitioner
from seeking to prevent her from retaining them.

       “By its terms, the antialienation provision . . . requires a plan to provide
expressly that benefits be neither ‘assigned’ nor ‘alienated.’” Kennedy, 555 U.S.
at 292. There is nothing in the plain language of the provision to indicate
Congressional intent to preclude an action by the estate of a deceased plan
participant to recover benefits already paid to a plan beneficiary. See Hoult v.
Hoult, 373 F.3d 47, 54 (1st Cir. 2004). “If Congress had intended [ERISA’s
anti-alienation provision] to reach that far, it could easily have employed the
type of language found [in other statutes], which prohibit[ ] attachment of
benefits ‘either before or after receipt by the beneficiary.’” Id.

       The respondent contends that the policy objectives of the anti-alienation
provision will be thwarted if she is not permitted to retain her share of the life
insurance proceeds. In so arguing, she relies primarily upon the Supreme
Court’s decision in Kennedy. Kennedy involved a suit by the estate of a
deceased plan participant against an ERISA plan administrator for wrongfully
distributing the plan’s proceeds to the participant’s ex-spouse. Kennedy, 555
U.S. at 289-90. Before the couple divorced, the participant (husband) had
designated his then-wife as the sole beneficiary of his savings and investment
plan. Id. at 289. In the divorce decree, the wife purported to waive her right to
the plan proceeds. Id. However, the husband never removed the wife as
beneficiary. Id. Despite the divorce decree, the plan administrator paid the
proceeds to the wife. Id. at 290.

       The Supreme Court ruled that the plan administrator did not violate
ERISA by ignoring the wife’s purported waiver. Id. at 299-300. The Court
decided that an ERISA plan administrator must distribute benefits to the
beneficiary named in the plan regardless of any state-law waiver purporting to
divest that beneficiary of her right to them. Id. at 304. However, the Court
explicitly left open the question of whether, once the plan administrator
distributes the benefits, the decedent’s estate may enforce the waiver against
the plan beneficiary. See id. at 299, n.10.

       The Court “emphasized two important policy considerations in explaining
its holding.” Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 135 (3d



                                        6
Cir. 2012). “First, it stated that ERISA’s well-established policy favoring
uniform and efficient plan administration would be undermined if employers
had to consider benefit claims from sources extrinsic to plan documents.” Id.;
see Kennedy, 555 U.S. at 300-01. “Second, [it] explained that its holding was
necessary in order to avoid subjecting plan administrators to potential double
liability.” Estate of Kensinger, 674 F.3d at 135; see Kennedy, 555 U.S. at 301.
Allowing the estate to sue the plan administrator for disbursing the proceeds to
the named beneficiary “would have placed the administrator in a hopeless
bind: if it honored the waiver, it could be sued by the named beneficiary for
disregarding the mandate of ERISA; if it honored the plan documents, it could
be sued by the estate for disregarding [the] . . . waiver.” Estate of Kensinger,
674 F.3d at 135-36.

        Contrary to the respondent’s assertions, “[t]hese two concerns – the need
for straightforward administration of plans and the avoidance of potential
liability – . . . are not implicated here.” Id. at 136. The constructive trust
action brought against the respondent, after she received her share of the life
insurance proceeds, does not implicate the administration of the decedent’s life
insurance plan. See id. As the trial court aptly observed:

      If imposed, a constructive trust would not interfere with or disrupt
      the transfer of the insurance proceeds to [the respondent]. The
      money has already been paid out by the insurer and is currently
      being held in escrow . . . . Accordingly, if the remedy of
      constructive trust is ultimately awarded, it will be funded with the
      money now held in escrow – not with an insurance policy or
      property rights under it.

        Although the Supreme Court also stated that an important ERISA
objective was to “ensur[e] that beneficiaries get what’s coming quickly, without
the folderol essential under less-certain rules,” Kennedy, 555 U.S. at 301
(quotation omitted), this refers to the “expeditious distribution of funds from
plan administrators.” Estate of Kensinger, 674 F.3d at 136 (emphasis omitted);
see Andochick v. Byrd, 709 F.3d 296, 299 (4th Cir.), cert. denied, 134 S. Ct.
235 (2013). Imposing a constructive trust on the proceeds in this case does
not prevent the beneficiary from “get[ting] what’s coming quickly” from the plan
itself. Kennedy, 555 U.S. at 301 (quotation omitted). Rather, it merely
prevents her from retaining what she “quickly” received. See Andochick, 709
F.3d at 300 (quotation omitted). As other courts have observed, there is “a
fundamental difference between state law causes of action that challenge a
plan beneficiary’s right to receive the proceeds of an ERISA plan and those that
seek to challenge a plan beneficiary’s right to keep the proceeds of an ERISA
plan.” Brown ex rel. Estate of Sanger v. Wright, 511 F. Supp. 2d 850, 853
(E.D. Mich. 2007). As one commentator has explained: “Once the proceeds are
distributed, the person seeking recovery of [them] is no longer seeking a



                                        7
determination of the beneficiary under the plan, but is instead challenging who
has the continuing right to retain the proceeds.” Comment, When Happily Ever
After is Not Ever After, After All: Rectifying the Plan Documents Rule Under
ERISA to Benefit the Right Person, 52 S. Tex. L. Rev. 127, 133 (2010). Here,
because the respondent has already received her share of the life insurance
proceeds, we conclude that ERISA does not bar the petitioner’s constructive
trust action.

       Federal courts have held that ERISA does not preempt post-
disbursement suits against ERISA beneficiaries in similar contexts. See
Andochick, 709 F.3d at 301 (“adopt[ing] the same view as every published
appellate opinion to address the question”); Estate of Kensinger, 674 F.3d at
132 (in case of first impression, court decides that estate may bring action
directly against beneficiary to recover proceeds paid to her pursuant to
beneficiary designation form); Guidry v. Sheet Metal Workers Nat. Pension
Fund, 39 F.3d 1078, 1080-83 (10th Cir. 1994) (affirming, en banc, imposition
of trust on distributed proceeds from ERISA plan); Central States, SE & SW
Areas Pension v. Howell, 227 F.3d 672, 678-79 (6th Cir. 2000) (holding that
constructive trust could be imposed on employee welfare plan benefits after
distribution to beneficiary). But see Staelens ex rel. Estate of Staelens v.
Staelens, 677 F. Supp. 2d 499, 508 (D. Mass. 2010).

       That the petitioner should be able to bring a constructive trust action
against the respondent “finds further support in a line of federal cases holding
that creditors can sue named beneficiaries to recover plan benefits once those
benefits have been distributed.” Estate of Kensinger, 674 F.3d at 137. “A
number of circuits,” including the First Circuit Court of Appeals, “have held
that even though ERISA prevents a creditor from encumbering [benefit
payments] held by a plan administrator, the funds are no longer entitled to
ERISA’s protections against the creditor’s claims once they are paid to the
beneficiary.” Id.; see Kickham Hanley PC v. Kodak Retirement Income Plan,
558 F.3d 204, 211 (2d Cir. 2009) (“Only once the proceeds of the pension plan
have been released to the beneficiary’s hands, can creditors and others pursue
claims against the funds and the funds’ owners[s].” (quotation omitted));
DaimlerChrysler Corp. v. Cox, 447 F.3d 967, 974 (6th Cir. 2006) (“This circuit,
along with a majority of the other circuits, has held that once benefits
payments have been disbursed to a beneficiary, creditors may encumber the
proceeds.”); Hoult, 373 F.3d at 54-55 (holding that once benefits have been
distributed to a beneficiary, a creditor’s rights are enforceable against that
beneficiary). “The same principle is equally applicable here.” Estate of
Kensinger, 674 F.3d at 138. If a creditor may enforce its rights against a
beneficiary once plan proceeds have been distributed, there is no reason why
the petitioner in this case should not be able to seek to impose a constructive
trust against the respondent’s share of the proceeds, which have already been
distributed. See id.



                                       8
       Although the respondent relies upon Staelens to support her argument,
we agree with the Third Circuit Court of Appeals that Staelens is inapposite to
claims such as the respondent’s claim here. See Estate of Kensinger, 674 F.3d
at 138. In Staelens, the court held that the decedent’s estate could not sue the
decedent’s ex-wife to enforce her purported waiver of her entitlement to plan
proceeds. Staelens, 677 F. Supp. 2d at 508-11. However, the court based its
decision on the specific language of the couple’s separation agreement. Id. at
510-11. Though the court opined, in dicta, that allowing lawsuits to be
brought against a plan beneficiary after plan proceeds have been distributed
“would appear to go against the various interests which the Supreme Court
deemed served by a uniform administrative scheme,” it also “acknowledge[d]
that the First Circuit itself, pre-Kennedy, appears to have treated distributed
funds differently” from funds that had not yet been distributed. Id. at 508; see
Hoult, 373 F.3d at 54. Accordingly, “[r]ecognizing what appeared to be the law
of the circuit in which it sat, the court avoided the question of whether the
estate could sue the ex-wife directly and instead based its decision on narrow
grounds related to the specificity of the contract language.” Estate of
Kensinger, 674 F.3d at 139; see Teves v. Teves, Civil Action No. 13-11162-FDS,
2013 WL 5508246, at *3 (D. Mass. Sept. 27, 2013) (“After benefits have been
distributed to the designated beneficiary in accordance with plan documents,
. . . ERISA is no longer implicated.”).

      D. Constructive Trust

       The respondent next argues that the trial court “misapplied the law of
constructive trust” to the facts of this case. We disagree. “[T]here are no rigid
requirements for imposing a constructive trust.” In re Estate of McIntosh, 146
N.H. 474, 478 (2001). “[A] constructive trust is merely the formula through
which the conscience of equity finds expression.” Milne v. Burlington Homes,
Inc., 117 N.H. 813, 816 (1977) (quotation omitted). “A constructive trust will
be imposed whenever necessary to satisfy the demand of justice.” Id.

       To support a claim for a constructive trust, the moving party must
demonstrate by clear and convincing evidence that such action is warranted.
Walsh v. Young, 139 N.H. 693, 695 (1995). To prevail in the instant case, the
petitioner had to prove that the respondent possessed the life insurance
proceeds at issue, that she and the decedent had a confidential relationship,
and that she would be unjustly enriched were she allowed to retain the
proceeds. See id. “The basic confidential relationship arises out of the family
relationship, where one party is justified in believing that the other party will
act in [his] interest.” Clooney v. Clooney, 118 N.H. 754, 757 (1978).

      The respondent argues that, to recover in this case, the petitioner had to
prove what we required of the plaintiffs in Patey v. Peaslee, 101 N.H. 26 (1957).
In Patey, the plaintiffs alleged that “knowing that the decedent was possessed



                                        9
of property of substantial value, and was of unsound mind and suffering from
physical disabilities from which she would shortly die, the defendant entered
into a marriage with her, intending at her death to marry another woman . . . .”
Patey, 101 N.H. at 28. The plaintiffs further alleged that in marrying the
decedent, “the defendant concealed from her his sole purpose in doing so,
which was to become a beneficiary of her estate.” Id. In light of those
allegations, we held that, to recover, the plaintiffs had to show that the
defendant and the decedent had a confidential relationship “in which the
defendant occupied a dominant position” and that he used that position,
“either by concealment of his purpose or by undue influence, to procure the
marriage solely to obtain the decedent’s property.” Id. at 30. The plaintiffs also
had to “prove that the decedent was thereafter incompetent to dispose of her
property, so that but for the marriage it would have gone to the plaintiffs by
intestacy; or if she was competent, that she would have made no other
disposition of it.” Id. We held that if the plaintiffs met this burden of proof, the
burden of proof would then shift to the defendant “to show that the action by
which he obtained title to the property was fair, and taken in good faith.” Id.

       In Patey, we did not set forth a “rule of law” to be applied generally.
Rather, we set forth what was required of the plaintiffs in that case because of
the allegations in their complaint. “The Patey case recognized . . . that the
equitable principle of imposing a constructive trust rests upon the doctrine
that restitution will be compelled to prevent unjust enrichment.” Lamkin v.
Hill, 120 N.H. 547, 551 (1980). “The specific instances in which equity imposes
a constructive trust are numberless, as numberless as the modes by which
property may be obtained through bad faith and unconscientious acts.” Milne,
117 N.H. at 816. Accordingly, in this case, the trial court properly focused
upon whether the circumstances rendered it unconscionable “for the
[respondent] to retain and enjoy [her] beneficial interest” in the life insurance
proceeds. Id. (quotation and ellipses omitted).

       The respondent next asserts that there was insufficient evidence to
support the trial court’s imposition of a constructive trust. We review such
claims as a matter of law and uphold the findings and rulings of the trial court
unless they are lacking in evidentiary support or tainted by error of law.
Walker v. Walker, 158 N.H. 602, 608 (2009). We accord considerable weight to
the trial court’s judgments on the credibility of witnesses and the weight to be
given testimony. Id. We view the evidence in the light most favorable to the
petitioner. Id.

      Viewing the evidence in the light most favorable to the petitioner, we
conclude that it supports the trial court’s imposition of a constructive trust.
The trial court found, and the record supports its finding, that the respondent
fraudulently induced the decedent because she married him without telling
him of her concurrent relationship with Tamara. For instance, Pastor Wallace



                                        10
Elliot Horton testified that, in approximately 2002, he first met Tamara and the
respondent, whom Pastor Horton knew as Tamara’s wife, then known as Ellen
or Hellen Tamara. The child whom the respondent claims was fathered by the
decedent was known to the Pastor as Tamara’s child. Indeed, Pastor Horton
testified that he presided at a “dedication ceremony” in which Tamara and the
respondent participated with the child as her parents. Pastor Horton further
testified that before he provided a reference for Tamara to the Northern New
England District Council for the Assembly of God church in 2005, he contacted
numerous individuals who confirmed that Tamara and the respondent were
husband and wife. Pastor Horton testified that throughout his friendship with
Tamara, he never doubted that the respondent was Tamara’s wife and, until
the instant proceeding, he had never heard of the decedent. Although, as the
trial court noted, the respondent “steadfastly denied that she was married to,
or intimately involved with, . . . Tamara,” the trial court found that her
testimony “was evasive, nonresponsive and not credible.”

      The trial court also found, and the record supports its finding, that by
concealing her relationship with Tamara, the respondent “was able to deceive
the decedent into believing that he was [the] only possible biological father” of
the respondent’s daughter. The decedent’s sister testified that the decedent
believed that the respondent’s daughter was his child, despite the fact that he
had had a vasectomy, and that the respondent convinced the decedent that he
had fathered her daughter.

        The record also supports the trial court’s finding that as a result of the
respondent’s fraud and deceit, the decedent was not only induced to marry her,
but also to designate her as a beneficiary of his life insurance policy. The sister
testified that in 2008, while the divorce action was pending, the decedent told
her that he now believed that the respondent was “already married” to Tamara.
The sister also testified that she believed that the decedent did not change the
beneficiary form because he was told that he could not do so while the divorce
was pending.

       Accordingly, the trial court found, and the record supports its finding,
that the decedent and the respondent had a confidential relationship (a
marriage) into which the decedent entered because of the respondent’s “bad
faith, deceit and misrepresentations.” The trial court found “by clear and
convincing evidence that were the [r]espondent allowed to profit from her
misconduct by retaining her beneficial share of the life insurance proceeds, an
unjust enrichment would result.” Because the record supports the trial court’s
findings, we uphold its determination that it was necessary to impose a
constructive trust to prevent the respondent from being unjustly enriched.




                                        11
      E. Attorney’s Fees

      The respondent next asserts that the trial court erred when it declined to
award her prevailing party attorney’s fees. The respondent did not prevail in
the probate division and has not prevailed in this appeal. Accordingly, the trial
court did not err by denying her request for prevailing party attorney’s fees.
Although the petitioner argues that the trial court should have awarded him
attorney’s fees, he did not file a cross-appeal, and, accordingly, this issue is not
properly before us.

      F. Ripeness

       We briefly address the respondent’s argument that the instant case is not
ripe for adjudication because it is not clear that the petitioner will ultimately
receive the life insurance proceeds now that the trial court has imposed, and
we have upheld its imposition of, a constructive trust on them. However, as
the trial court explained when it denied the respondent’s motion to dismiss, “[i]f
a constructive trust were to be imposed, the beneficiary of these assets would
be the person wronged by [the respondent], as determined by the court.” We
decline to decide, in the first instance, the identity of “the person wronged by
[the respondent],” and remand this issue to the trial court for resolution.

      We have reviewed the respondent’s remaining arguments and conclude
that they do not warrant further discussion. Vogel v. Vogel, 137 N.H. 321, 322
(1993).

                                                   Affirmed and remanded.

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




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