Failure to Appear and Failure to Disclose Permit Income Attribution and Unequal Division: Zieroff Clarifies Trial Court Discretion and Appellate Record Presumptions in Default Divorce Hearings

Introduction

In the Matter of Zachary Zieroff and April Zieroff (N.H. July 21, 2025) is a Supreme Court of New Hampshire order affirming a final divorce decree entered after the petitioner failed to appear at the final evidentiary hearing and failed to provide updated financial disclosures. The case consolidates several core domestic relations principles: the broad discretion vested in trial courts over alimony and property division; the presumption of equal division of marital property subject to equitable deviations under RSA 458:16-a; the burden on a business-owning spouse to provide sufficient financial information for accurate income determinations; and the presumption on appeal that missing portions of the record support the trial court’s decision.

The petitioner challenged two rulings: (1) the trial court’s unequal property division, and (2) the determination of his income used to calculate term alimony under RSA 458:19-a, II (Supp. 2024). The Supreme Court affirmed, emphasizing that the trial court could proceed on default and rely on the respondent’s offer of proof and limited documentary indicators (including unexplained bank deposits and prior representations by petitioner’s counsel) to attribute income where the petitioner withheld financial information. The Court also applied the well-established appellate rule that gaps in the record are construed to support the judgment below.

Summary of the Opinion

The Supreme Court resolved the appeal by order under Supreme Court Rule 20(3), affirming the trial court’s:

Unequal division of marital property (60/40 sale proceeds from the marital home in favor of the respondent), supported by the statutory factors under RSA 458:16-a, II(a), (b), and (c).
Term alimony award of $1,029 per month for four-and-a-half years, calculated under RSA 458:19-a, II (Supp. 2024), based on an attributed self-employment income of $4,546 per month in addition to petitioner’s VA benefits.
Reliance on the respondent’s offer of proof after the petitioner and his counsel failed to appear at the final hearing, and on counsel’s prior representation in a related proceeding that petitioner was working 70+ hours per week in a business generating “very substantial income.”
Use of incomplete financial disclosures against the petitioner; his failure to supplement interrogatories or file an updated financial affidavit (Fam. Div. R. 1.25(E)(9), 2.16(A)) permitted the court to estimate income using available evidence, including recent unexplained deposits of $3,800.
Application of the “missing-record” presumption (Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004)) because the appellant failed to supply critical items on appeal, including financial affidavits, interrogatory responses, a contempt motion, and orders in a related matter, which the Court presumed support the trial court’s decision.

The Court concluded that, on this record, the trial court did not unsustainably exercise its discretion in either the property division or the alimony award.

Background and Procedural Posture

The parties married in 2014 and purchased the marital home in 2017. In January 2024, the trial court continued the scheduled final hearing to allow petitioner’s new counsel to prepare. A final, seven-hour hearing was set for May 7, 2024. On April 18, 2024, in a related proceeding, petitioner’s counsel confirmed he would represent petitioner at the May 7 hearing. On May 6, counsel filed an appearance and an emergency motion to continue, which was denied the same day. Neither the petitioner nor his counsel appeared on May 7. The court defaulted the petitioner and proceeded on the respondent’s offer of proof.

The respondent’s proffer included:

Home purchase price (~$269,000–$270,000) and current certified market analysis range ($564,980–$675,000), contrasted with the petitioner’s unsupported $440,000 valuation.
Petitioner’s delinquency on mortgage obligations (partial April payment; no May payment).
Petitioner’s VA benefits (~$4,26x per month) and new business with his brother where he worked 70+ hours weekly, reportedly generating very substantial income; petitioner failed to supplement discovery or file an updated financial affidavit reflecting this income.
Recent unexplained deposits ($2,000 and $1,800) in petitioner’s accounts.
Respondent’s employment income of $4,326 per month.
A marital credit card opened at petitioner’s urging for his motorcycle engine rebuild, with a balance likely exceeding $7,457, and an outstanding contempt motion for nonpayment despite court orders.

The respondent requested:

Sale of the marital home with a 60/40 equity split in her favor.
Award of her ~$10,000 retirement account to her, and of bank accounts and vehicles to the parties in their own names, with the petitioner’s motorcycle awarded to her to liquidate toward the credit card debt.
Petitioner to bear the remaining credit card obligation.
Petitioner awarded the timeshare and the personal property items on his list (valued by him at ~$17,000); she would receive the remainder.
Term alimony of $1,029/month for 4.5 years under RSA 458:19-a, II, using an estimated self-employment income of $4,546/month for petitioner (70 hours per week at $15/hour) plus VA benefits, which she described as a conservative assumption given the “very substantial income” representation.

The trial court adopted the respondent’s proposals, expressly finding that an unequal property division was justified under RSA 458:16-a, II(a), (b), and (c), and that alimony was warranted due to a “great disparity in the earnings capabilities of the parties.” It also took judicial notice of findings from the related proceeding.

Issues Presented

Whether the trial court erred in ordering an unequal division of marital property under RSA 458:16-a, II.
Whether the trial court erred in determining the petitioner’s income and calculating term alimony under RSA 458:19-a, II (Supp. 2024).

The Court’s Decision

The Supreme Court affirmed. It held that:

The trial court acted within its broad discretion in fashioning the property division by relying on the respondent’s offer of proof and the statutory factors justifying an unequal division (RSA 458:16-a, II(a), (b), (c)).
The trial court permissibly attributed self-employment income to the petitioner based on available evidence and counsel’s prior representations where the petitioner failed to disclose updated financial information, consistent with Hampers (burden on business owner to establish expenses) and Dow (authority to attribute income/earning capacity under prior law).
The appellant’s failure to supply key portions of the record on appeal triggered the Bean presumption that the missing materials support the trial court’s decision.

Analysis

Precedents Cited and Their Influence

In the Matter of Spenard & Spenard, 167 N.H. 1 (2014): Reaffirms broad trial court discretion over alimony and property division and the deferential “unsustainable exercise of discretion” standard. The Zieroff court relies on Spenard to frame the appellate lens: if the trial court could reasonably reach its findings on the evidence presented, those findings stand.
In the Matter of Dube & Dube, 163 N.H. 575 (2012): The appellate court assumes the trial court made all findings necessary to support its general rulings. In Zieroff, this presumption supports affirmance where detailed findings are not itemized but the order references statutory grounds and the evidence supports them.
In the Matter of Aube & Aube, 158 N.H. 458 (2009): Deference to the trial court’s assessment of credibility and weight of evidence. Zieroff applies this deference in accepting the respondent’s offer of proof after the petitioner’s default.
RSA 458:16-a, II and IV; In the Matter of Sarvela & Sarvela, 154 N.H. 426 (2006): Establish the presumption of equal division of marital property and the requirement to specify written reasons for deviations, considering listed factors. Zieroff confirms that an unequal division is proper when justified by factors such as duration of marriage, comparative income and liabilities, and future acquisition opportunities.
Maldini v. Maldini, 168 N.H. 191 (2015): Confirms that “marital property” includes marital debt for purposes of division. This supports the allocation of the credit card debt incurred during the marriage.
In the Matter of Hampers & Hampers, 166 N.H. 422 (2014): Places the burden on a business owner to substantiate business income and deductible expenses. In Zieroff, the petitioner’s failure to meet this burden permitted income attribution using conservative estimates and circumstantial financial indicators.
In the Matter of Dow & Dow, 170 N.H. 267 (2017): Recognizes the authority to attribute income based on earning capacity (under prior law). Zieroff analogizes: even with limited current data, courts may attribute self-employment income from available evidence.
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004); In the Matter of Rokowski & Rokowski, 168 N.H. 57 (2015); Estate of Day v. Hanover Ins. Co., 162 N.H. 415 (2011): Establish the appellant’s duty to provide a complete record and the presumption that missing portions support the trial court’s rulings. Zieroff’s affirmance strongly rests on this presumption due to missing affidavits, discovery, and related findings.
Douglas v. Douglas, 143 N.H. 419 (1999): Authorizes proceeding immediately on contested issues at a final divorce hearing when a party fails to attend, provided proper notice. Zieroff notes the petitioner did not challenge the denial of the emergency continuance or argue lack of such notice; thus, default and proceeding on the respondent’s offer of proof were permissible.

Legal Reasoning

The Court’s analysis unfolds in structured steps:

Standard of review: The Court applies the “unsustainable exercise of discretion” standard (Spenard). It looks for an objective basis in the record to sustain the trial court’s discretionary judgments.
Trial management and default: The petitioner and counsel failed to appear at a properly noticed final hearing. He did not appeal the denial of his emergency continuance nor argue that the notice failed to warn of a default hearing, bringing the case squarely within Douglas. The trial court therefore could proceed on the respondent’s offer of proof.
Property division: The court acknowledged the equal-division presumption (RSA 458:16-a, II) but found an unequal division equitable in light of (a) the duration of the marriage; (b) comparative age, health, social and economic status, occupation, vocational skills, employability, separate property, sources of income, needs, and liabilities; and (c) opportunities for future acquisition of capital assets and income. It specified reasons in writing (RSA 458:16-a, IV) and cited these statutory factors. Evidence supporting these included the petitioner’s superior income prospects (VA benefits plus represented substantial business income), mortgage delinquencies, the allocation of debts (including the motorcycle-related credit card), and judicial notice of related findings.
Alimony and income attribution: The petitioner failed to supplement discovery or file an updated financial affidavit as required by Family Division Rules 1.25(E)(9) and 2.16(A). Under Hampers, a business owner bears the burden to substantiate income and deductible expenses. The absence of disclosures permitted the court to estimate income using: (i) counsel’s prior representation that petitioner was working 70+ hours/week in a business generating “very substantial income,” and (ii) unexplained bank deposits totaling $3,800 shortly before the hearing. The respondent’s estimate of $4,546/month self-employment income (70 hours at a conservative $15/hour) plus VA benefits was accepted for calculating term alimony under RSA 458:19-a, II (Supp. 2024). The trial court further found a “great disparity” in earning capacities and the petitioner’s ability to pay the awarded alimony.
Appellate record presumption: The petitioner did not supply key documents—financial affidavits, interrogatories, the contempt motion, or the related orders—on appeal. Applying Bean and its progeny, the Supreme Court presumed these missing materials support the trial court’s rulings, undercutting the petitioner’s claim of miscalculation and lack of evidentiary basis.
Conclusion: Given the deferential standard, the permissibility of proceeding by default, the respondent’s proffer, the petitioner’s discovery failures, and the missing-record presumption, the Court affirmed the property division and alimony.

Impact and Prospective Significance

Zieroff is a strong, practical reinforcement of several operational doctrines in New Hampshire divorce practice:

Default hearings have consequences: If properly noticed, trial courts may proceed and decide contested issues upon a party’s nonappearance. Counsel and litigants should not expect leniency for last-minute continuance motions, especially where prior continuances were granted.
Discovery compliance matters: Business owners who do not supplement financial disclosures invite conservative judicial estimates and income attribution based on limited, circumstantial evidence. Courts may credit counsel’s prior on-record representations and bank activity when contemporaneous affidavits are missing.
Unequal division is available where justified: Trial courts may deviate from equal division when statutory factors support it; evidence of superior earning capacity and future acquisition opportunities can be dispositive even when hard numbers are incomplete—particularly if the deficit arises from one party’s nondisclosure.
Appellate record discipline is essential: Appellants bear the burden to supply a complete record. Failure to include critical documents can be outcome-determinative because the Supreme Court will presume the omissions sustain the judgment below.
Integration with new alimony framework: While Zieroff does not expound the RSA 458:19-a formula, it shows courts will apply the statute using reasonable income estimates when a party obstructs disclosure, aligning with Hampers and Dow’s attribution principles.

Complex Concepts Simplified

Unsustainable exercise of discretion: An appellate standard that asks whether no reasonable judge could have reached the decision on the evidence presented. If a reasonable basis exists, the decision stands—even if the appellate court might have ruled differently.
Equal-division presumption (RSA 458:16-a, II): The default rule that marital property (and marital debt) is split equally. Courts may deviate if, after considering statutory factors, equal division would be inequitable.
Offer of proof: A party’s summary of expected evidence. In default contexts, courts may accept proffers and related exhibits to build an evidentiary foundation when the opposing party fails to appear.
Income attribution/earning capacity: When actual income is unclear or underreported, courts may estimate or impute income based on hours worked, industry norms, bank activity, or prior statements, especially where a party withholds information.
Judicial notice: A court’s acceptance of certain facts or prior findings from related proceedings without requiring new proof at the current hearing.
Missing-record presumption (Bean): On appeal, if an appellant omits important parts of the record, the Supreme Court assumes those materials support the trial court’s ruling.
Term alimony (RSA 458:19-a, II): Alimony payable for a defined period. The statute provides a calculation framework that depends on the parties’ incomes and other factors; a court may use reasonable estimates where disclosures are lacking.

Practice Pointers

For business-owning spouses: Maintain and timely disclose books, bank statements, and expense documentation. If you do not carry your burden under Hampers, the court may attribute income using conservative, possibly adverse assumptions.
For counsel: File appearances promptly and avoid last-minute continuance motions. If you represent on the record that your client’s business generates “very substantial income,” expect opposing parties and the court to rely on that representation if your client withholds documents.
For litigants: Do not miss final hearings. A default can result in a complete adjudication based on your opponent’s proffer. Orders to pay obligations (mortgage, credit cards) will be considered; noncompliance may affect equitable division.
For appellants: Assemble a complete record—financial affidavits, interrogatory responses, related orders, and exhibits. Absent these, Bean’s presumption will likely sink an appeal.

Conclusion

Zieroff is a consequential application of established New Hampshire divorce principles to a default scenario marked by nondisclosure. It confirms that:

Trial courts may proceed on default and rely on offers of proof when a party and counsel fail to appear.
Failure to supplement financial discovery, especially by a business owner, authorizes courts to attribute income using reasonable, conservative proxies (hours worked, bank deposits, prior representations).
Unequal property divisions are sustainable when grounded in the statutory equity factors, even on a limited record.
On appeal, missing records are presumed to favor the judgment below.

In short, Zieroff reinforces the centrality of diligent participation and full financial disclosure in divorce proceedings. It underscores that the costs of silence and absence will fall on the noncompliant party, both at trial and on appeal.