Scrivener’s Errors, Pension Division, and Interim Orders in Divorce: Commentary on In the Matter of Warren & Jean Jackson (N.H. 2025)

I. Introduction

The New Hampshire Supreme Court’s order in In the Matter of Warren Jackson and Jean Jackson, No. 2024-0242 (Nov. 21, 2025), provides significant guidance on several recurring issues in family law:

The scope of a trial court’s inherent power to correct its own divorce decrees as “scrivener’s errors,” even where the corrections materially alter the parties’ rights.
The limits of the so‑called Hodgins formula in dividing pensions upon divorce, especially when the present value of the pension is known and some of it was earned before marriage.
The relationship between temporary and final orders in divorce proceedings during appeals, and the family division’s equitable power to convert final orders into controlling temporary orders.
The discretionary nature of contempt findings for violations of disclosure and financial-affidavit rules, and the broad discretion regarding retroactive alimony.
The strict enforcement of issue-preservation requirements for appellate review.

The case arises out of a long-term marriage in which the husband accumulated significant income and retirement benefits while the wife, a stay-at-home parent, managed the household and children. Following a contested divorce, the wife challenged multiple aspects of the final decree and subsequent orders. The Supreme Court affirmed in all respects.

II. Summary of the Opinion

The Supreme Court affirmed the circuit court’s (Family Division) final divorce decree and all subsequent relevant orders. Specifically, it held:

Scrivener’s errors and decree modification: The trial court did not unsustainably exercise its discretion in modifying the original final divorce decree—reducing the required life insurance from $1,000,000 to $500,000 and deleting findings that the husband violated Rule 1.25-A and filed false financial affidavits. These provisions had been included by the wife’s counsel in a proposed form decree and were inconsistent with the judge’s narrative order; their presence was properly treated as clerical error, which the court had inherent power to correct.
Contempt for disclosure and financial affidavit violations: The trial court’s refusal to hold the husband in contempt for alleged violations of Family Division Rules 1.25-A (mandatory disclosures) and 2.16 (financial affidavits) was supported by the record. The wife failed to prove a knowing violation of court orders.
Pension division and the Hodgins formula: The court rejected the wife’s argument that her premarital portion of a pension should be excluded via the Hodgins formula. Because the actual value of the pension was known, Hodgins did not apply, and in any event, Hodgins does not address apportioning premarital pension benefits. Trial courts may distribute even premarital property under RSA 458:16-a, I; therefore, awarding the husband 50% of the entire pension was not error.
Retroactive imposition of final orders as temporary orders: The trial court acted within its equitable powers in converting the final decree into controlling temporary orders during appeal, even retroactively. Given that the parties had already proceeded in reliance on the final decree (e.g., listing and selling the home, preparing QDROs, segregating property, and changing health coverage), this was equitable and consistent with Gray v. Kelly.
Retroactive alimony denied: The trial court implicitly denied the wife’s request for retroactive alimony for the seven months between the filing of the divorce and the issuance of temporary alimony orders. That denial was within the court’s broad discretion, particularly where the husband had been paying the marital household bills during that period.
Unpreserved issues: The wife’s complaints that the court failed to set an effective date for division of remaining financial assets and failed to rule on distribution of personal property were not preserved. She did not properly raise them below or in a motion for reconsideration, so the Supreme Court declined to address them.

Because the court rejected all of the wife’s claims of error, it did not reach the husband’s motion to dismiss portions of the appeal.

III. Factual and Procedural Background

A. The Marriage and Divorce Proceedings

The parties married in 1991 and had two children, who were adults by the time of the divorce. The husband experienced career success and earnings growth; the wife stayed home to raise the children and manage family affairs.

The husband filed for divorce in October 2020. While the case was pending, both parties remained in the marital home. Before the final hearing in July 2022, the wife filed two contempt motions:

One alleging the husband failed to produce mandatory financial documents under Family Division Rule 1.25-A.
Another alleging, among other things, that he failed to return certain personal property removed from the marital home.

B. The December 2022 Narrative Order and Form Final Decree

After the final hearing, the trial court issued:

A narrative order explaining its rulings (including denying contempt regarding Rule 1.25-A), and
A form Final Decree (on a standard circuit court form) that had been drafted and submitted by the wife’s counsel, with additions and edits.

The wife’s proposed decree (on the pre-printed form) included:

A term requiring the husband to maintain a $1,000,000 life insurance policy naming her as beneficiary.
A checked box under “Compliance With Rule 1.25-A,” stating that she had complied but the husband had not.
A checked “Miscellaneous” box stating that the husband filed “false and/or inaccurate” financial affidavits, resulting in lower temporary alimony for the wife, and awarding her treble damages and attorney’s fees under RSA 458:15-b, I.

The judge adopted the wife’s proposed decree with some handwritten edits but, as later acknowledged, did not remove all of the wife’s added language. The decree therefore on its face contained statements and remedies that conflicted with the judge’s narrative order, which had:

Denied the wife’s contempt motions regarding Rule 1.25-A, and
Made no finding of false financial affidavits or treble damages.

C. The April 2023 Modified Decree (“Nunc Pro Tunc”)

The husband moved for reconsideration. In April 2023, the trial court:

Explained it had “not intended” to adopt the language inserted by the wife’s counsel under “Compliance With Rule 1.25-A” and “Miscellaneous.”
Characterized the inclusion of that language as a “scrivener’s error or oversight” in failing to excise the terms from the proposed decree.
Explained that it had intended to require life insurance only in an amount sufficient to secure the alimony award, which totaled under $500,000, and therefore reduced the requirement from $1 million to $500,000.

The court issued a modified divorce decree, using the phrase “nunc pro tunc,” crossing out the inconsistent language and reducing the life insurance amount.

D. Subsequent Proceedings

In May 2023, after a show-cause hearing, the trial court found the husband was not in contempt for failing to return personal property to the marital residence.
In March 2024, the trial court issued orders on multiple post-hearing motions, including denying the wife’s motion for reconsideration of the modified decree.
Given the parties had already acted in reliance on the final decree (e.g., listing and selling the home, preparing QDROs, segregating property, altering health coverage), the trial court, “based upon the equities,” converted the final decree into the controlling temporary orders pending appeal or the passage of 31 days, citing Family Division Rule 2.29(b).

The wife appealed, raising seven issues. The Supreme Court resolved the appeal by order pursuant to Supreme Court Rule 20(3), affirming in full.

IV. Detailed Analysis

A. Standard of Review and Deference to the Family Division

The opinion reiterates that:

Trial courts have broad discretion in crafting divorce decrees and managing proceedings. (In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014)).
Appellate review is for unsustainable exercise of discretion.
The Supreme Court looks only for an objective basis in the record to sustain the trial court’s discretionary decisions; if the findings can reasonably be made on the evidence, they stand.

This standard pervades the analysis of all issues—property division, contempt, alimony, and interim orders—and explains the Court’s deference to the Family Division’s fact-finding and discretionary judgments.

B. Correction of the Final Decree as “Scrivener’s Error”

1. Legal Framework

The Court grounds its approval of the modified decree in the trial court’s inherent authority:

Inherent power to revise and correct orders: The court “has the inherent power to revise its own orders and correct errors.” (In the Matter of Stapleton & Stapleton, 159 N.H. 694, 696–97 (2010)).
Interpretation of trial court orders is a question of law, reviewed de novo. (In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008)).
Scrivener’s error doctrine: A trial court may correct a clerical or scrivener’s error—an error “clerical in nature and not the product of judicial reasoning or reflection”—to conform the written order to the court’s actual intent. (State v. Stern, 150 N.H. 705, 712, 714 (2004)).

The Supreme Court examines the December 2022 narrative order alongside the original form decree to determine the trial court’s true intent. Where the form decree conflicted with the narrative, the Court inferred the form’s text was not truly part of the judge’s decision.

2. Life Insurance Requirement

The original decree required $1,000,000 in life insurance. The trial court later reduced this to $500,000, explaining that:

The intention was to secure the alimony obligation if the husband died during the alimony term.
The alimony over the set term (excluding bonuses) totaled less than $500,000.

In other words, the required coverage should approximate the risk being secured—the unpaid alimony—not an arbitrary higher figure. The Court notes that the December 2022 narrative order had:

Set alimony at $3,833.33 per month plus 23% of the husband’s net commissions, for ten years.
Contained nothing suggesting a $1 million security requirement.

Given these facts, the Supreme Court concludes that the increase from $500,000 to $1,000,000 was not an intentional judicial decision but the product of adopting the wife’s proposed language without full modification. Correcting that amount was therefore a permissible clerical correction, not a prohibited substantive re-judgment of the case.

3. Deletion of Rule 1.25-A and Treble-Damages Language

The more sensitive portion of the modification concerned deleting language that:

Declared that the husband had not complied with Rule 1.25-A, and
Found he had filed “false and/or inaccurate” financial affidavits, and
Awarded the wife treble damages and attorney’s fees under RSA 458:15-b, I.

These provisions directly contradicted the narrative order, which:

Denied the wife’s motion for contempt based on non-compliance with Rule 1.25-A.
Merely observed that Rule 1.25-A provides “additional remedies if it can be shown that financial data was withheld or misrepresented” (emphasis added)—indicating no such finding had been made.

Thus, the narrative order:

Found no proven violation of Rule 1.25-A, and
Did not award any statutory remedies under RSA 458:15-b, I.

The Supreme Court treats the conflicting language in the form decree as a “scrivener’s error,” because it originated from the wife’s draft and was not reflective of the judge’s concluded reasoning. Consistent with Stern, the Court characterizes the inclusion of those provisions as:

“clerical in nature and ... not the product of judicial reasoning or reflection.”

By modifying the decree to match the narrative order, the trial court was “merely conforming the record to reflect its original intent.” Therefore, there was no unsustainable exercise of discretion.

4. Significance

This part of the opinion underscores that:

Judges may adopt party-drafted orders and decrees, but later corrections are permissible when the record shows the adopted language does not reflect the court’s actual decision.
Even substantively important corrections (e.g., elimination of treble damages and a finding of fraud, or reduction of substantial life insurance obligations) can be treated as clerical corrections when the written form clashes with the judge’s narrative reasoning.
Use of “nunc pro tunc” language is permissible to make the record conform to prior adjudicative intent, not to retroactively change that intent.

Practically, counsel should:

Draft proposed decrees carefully and in harmony with the court’s narrative rulings.
Promptly move to correct any decree that deviates from the court’s oral or written findings.
Be prepared that the Supreme Court will look at the entire record (especially narrative orders) to determine whether an apparent “change” was actually a correction of clerical oversight.

C. Contempt and Compliance with Rules 1.25-A and 2.16

1. The Rules at Issue

The wife alleged the husband was in contempt because he:

Failed to produce required disclosures under Family Division Rule 1.25-A, which mandates disclosure of specified financial documents unless the parties agree otherwise or the court orders differently.
Violated Family Division Rule 2.16, which requires each party to file a financial affidavit with the court and serve it on the other party, disclosing specified financial information.

2. Contempt Standard

The opinion reiterates:

The contempt power is discretionary. (In the Matter of Clark & Clark, 154 N.H. 420, 425 (2006)).
The key appellate question is not whether the Supreme Court would have found the respondent in contempt, but whether the trial court unsustainably exercised its discretion.
The wife had the burden to show a knowing violation of court orders.

3. Application to the Facts

The trial court concluded the wife had not met her burden to prove:

That the husband knowingly violated orders relating to financial disclosures or affidavits, or
That his conduct warranted the imposition of contempt sanctions.

The Supreme Court, reviewing the record, finds adequate support for this determination and affirms. The order does not detail the underlying factual disputes but emphasizes deference: if there is reasonable evidence backing the trial court’s assessment of credibility and intent, the appellate court will not intervene.

4. Practical Impact

This aspect of the decision highlights:

Merely pointing to incomplete or delayed disclosure is not enough for contempt; a knowing violation of a court order must be shown.
Lawyers seeking contempt should build a record demonstrating:
- The existence of a clear, specific order;
- Notice to the non-compliant party;
- Clear and convincing evidence of a knowing failure to comply.
Conversely, alleged violators should document their production efforts and any obstacles, underscoring good-faith compliance.

D. Pension Division and the Limits of the Hodgins Formula

1. The Wife’s Argument

The wife argued the trial court erred by awarding the husband 50% of her pension without excluding the portion she earned before the marriage. She invoked the Hodgins formula:

Hodgins v. Hodgins, 126 N.H. 711, 715–16 (1985) (superseded on other grounds by RSA 458:16-a, I).

She contended that under Hodgins, premarital pension accruals should be excluded from the marital estate.

2. The Court’s Response and Precedents

The Supreme Court rejects the wife’s reliance on Hodgins, and in doing so, clarifies two important principles:

Hodgins applies only when the pension’s value is unascertainable.
Hodgins does not govern how to treat premarital pension benefits.

The Court relies on:

In the Matter of Watterworth & Watterworth, 149 N.H. 442, 452 (2003), which states that the Hodgins formula “does not apply when the value of the pension is ascertainable.”
In the Matter of LeGault & LeGault, 177 N.H. 365, 370 (2025), 2025 N.H. 24, ¶ 14, which clarifies that Hodgins “does not address how to apportion pension benefits when some portion of those benefits was earned prior to marriage.”

In Jackson, the trial court had the actual value of the wife’s pension plan. Under Watterworth, this makes the Hodgins formula inapplicable.

3. RSA 458:16-a, I and Premarital Property

The Court further notes that RSA 458:16-a, I permits the trial court to distribute property that the parties brought to the marriage. In other words:

In New Hampshire, premarital property is not automatically excluded from the marital estate.
The trial court may consider and equitably divide such property, including pensions that predate the marriage.

Because:

The pension’s value was ascertainable, and
The statute allows distribution of premarital property,

the Court holds that the trial court did not err in awarding the husband half of the wife’s pension, without carving out a premarital portion via Hodgins.

4. Impact on Pension Litigation in New Hampshire

This holding reinforces and slightly sharpens prior case law:

The Hodgins fraction is limited to situations where a pension’s future stream of benefits cannot be assigned a reliable present value. Where the pension’s value is determinable, courts may—and likely should—address it through regular property division principles instead of automatic formulas.
Premarital pension contributions are not sacrosanct. Trial courts may divide them as part of the marital estate when equity so requires, subject to the statutory distribution factors in RSA 458:16-a.

Strategically, parties should:

Be prepared to obtain and present a present-value calculation of pension benefits where possible, rather than relying on Hodgins as a default.
Argue explicitly from the statutory factors (e.g., duration of the marriage, contributions to the marriage, economic misconduct, disparity in incomes) when seeking to protect or share premarital pension accruals.
Recognize that long marriages, as here, often strengthen arguments for dividing even premarital retirement assets.

E. Converting Final Orders into Temporary Orders Pending Appeal

1. Typical Rule vs. Court’s Authority

Ordinarily, a temporary order remains in effect during an appeal, and the final order may be stayed or superseded by appellate practice. However, as Gray v. Kelly, 161 N.H. 160, 167–68 (2010), recognizes:

A trial court may specifically order the final order to remain in effect during an appeal.

In Jackson, the trial court went further, “converting” the final decree into the controlling temporary orders, effective retroactively, pending appeal or 31 days.

The Supreme Court notes that the family division possesses “the powers of a court of equity” under RSA 490-D:3, which gives it flexibility to issue fair interim orders in domestic cases.

2. Equitable Considerations

The key to the Supreme Court’s approval is the parties’ conduct:

The parties had already operated under the final decree by:
- Mutually listing the house and entering into a purchase-and-sale agreement;
- Preparing QDROs (Qualified Domestic Relations Orders) to divide retirement assets;
- Segregating their respective property;
- Altering health insurance coverage.

In light of these facts, the trial court viewed it as equitable to:

Place the parties back under the same regime (the final decree) as temporary orders during the appellate process.

The Supreme Court finds no error, emphasizing that equity and the court’s broad powers justify this approach, particularly to avoid chaos or unfairness after the parties have acted in reliance on the decree.

3. Implications

This aspect of Jackson confirms:

Trial courts can exercise broad equitable authority to manage the interim period during appeals, including making final orders effectively serve as temporary orders.
Where parties materially change their positions in reliance on a final decree (e.g., selling real estate, reallocating retirement accounts), courts are likely to uphold arrangements preserving the status quo created by that reliance.

Practitioners should:

Advise clients that acting on a final decree—even while post-decree motions or appeals are pending—can influence how courts manage interim relief.
Consider moving explicitly for orders clarifying whether the final decree remains in effect, is stayed, or is treated as a temporary order pending appeal.

F. Retroactive Alimony

1. The Wife’s Claim

The wife requested retroactive alimony for a seven-month period—from the filing of the divorce in October 2020 until temporary alimony orders issued. She argued that this gap entitled her to an arrearage.

The trial court’s narrative order:

Noted the wife’s request for an arrearage, but
Did not order the husband to pay it.

The Supreme Court interprets this silence as an implicit denial of the request. Under Salesky, interpreting the meaning of a trial court’s order is a question of law, reviewed de novo, and the Court reads the narrative and decree as having rejected the request.

2. Discretion over Alimony Start Date

The Court stresses:

The date from which alimony is payable is “peculiarly within the discretion of the trial court.” (Walker v. Walker, 133 N.H. 413, 418 (1990) (quotation omitted)).
In In the Matter of Peirano & Larsen, 155 N.H. 738, 746 (2007), the Court affirmed denial of retroactive alimony in light of amounts the obligor had already paid prior to the final order.

Similarly, in Jackson, the record showed that during the seven-month gap:

The husband had been paying the bills for the marital home.

The Supreme Court concludes that the trial court did not unsustainably exercise its discretion in refusing retroactive alimony, analogizing to Peirano & Larsen.

3. Takeaways

Key lessons include:

Retroactive alimony is not automatic; it is a discretionary remedy based on the total circumstances, including voluntary support already provided.
Counsel seeking retroactive alimony should:
- Present detailed evidence of the recipient’s needs and any shortfall during the gap period.
- Address (and, if appropriate, rebut) evidence of the payor’s voluntary contributions during that time.
Payors who wish to minimize retroactive exposure should keep a clear record of what they are paying (mortgage, utilities, insurance, etc.) and why.

G. Preservation of Issues for Appeal: Effective Date of Division and Personal Property

1. The Unpreserved Issues

The wife argued on appeal that:

The trial court erred by not setting an effective date for division of remaining financial assets; and
The court failed to issue a ruling on distribution of the parties’ personal property.

However, the Supreme Court finds she did not demonstrate that she raised these issues in the trial court, either:

Before the final decision, or
In a motion for reconsideration after the decision.

2. The Preservation Rule

The Court cites In the Matter of Sweatt & Sweatt, 170 N.H. 414, 423–24, which reiterates:

“It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial.” (quotation omitted).
Issues that could not have been presented before the decision must be raised in a motion for reconsideration to be preserved for appeal.

Because the wife did not do this, these claims were not preserved, and the Supreme Court declines to consider them.

3. Practical Importance

This highlights a critical procedural point:

Even in emotionally charged, complex divorce litigation, issue preservation is mandatory.
If a party believes the court has:
- Overlooked an issue (e.g., personal property division), or
- Failed to specify a necessary detail (e.g., effective date for division),
the party must raise it:
- Explicitly during the proceedings, and/or
- Via a motion for reconsideration.
Silence in the trial court is fatal on appeal, even if the omission seems obvious.

V. Key Legal Concepts Simplified

1. “Unsustainable Exercise of Discretion”

This is the standard under which the Supreme Court reviews many family-law decisions, including property division, alimony, and contempt. A decision is an “unsustainable exercise of discretion” if:

It is based on a mistake of law, or
It lacks evidentiary support such that no reasonable person could have reached that conclusion.

Put simply, the question is not whether the Supreme Court would have decided differently, but whether the trial court’s decision was outside the realm of reason.

2. Scrivener’s Error

A “scrivener’s error” (or clerical error) is a mistake in the written record that does not reflect what the court actually decided—e.g., a wrong figure typed in, language accidentally left in from a draft, or a checked box inconsistent with the narrative ruling.

Courts may correct these errors at any time to make the written order align with their true decision, so long as they are not changing the decision itself.

3. “Nunc Pro Tunc”

“Nunc pro tunc” is Latin for “now for then.” A nunc pro tunc order is entered now but takes effect as of an earlier date, typically to:

Correct clerical mistakes in the record, or
Reflect an action that the court had intended or announced earlier but not formally recorded.

It is not meant to give a court authority to retroactively change a decision, but to retroactively record a decision actually made.

4. The Hodgins Formula

The Hodgins formula is a method from Hodgins v. Hodgins for dividing pension benefits by:

Calculating a fraction that represents the marital portion of the pension (often years of service during marriage divided by total years of service), and
Applying that fraction to the pension benefits to determine the marital share.

Jackson, together with Watterworth and LeGault, clarifies that:

The formula is mainly for situations where the pension value cannot be reliably quantified in present dollars.
It does not dictate what to do with premarital pension accruals when the pension’s value is known.

5. QDRO (Qualified Domestic Relations Order)

A QDRO is a special court order, often required under federal law, that directs a retirement plan administrator to pay a portion of a participant’s benefits directly to an alternate payee (typically a former spouse) consistent with a divorce decree.

In Jackson, the parties’ preparation of QDROs under the final decree was cited as evidence that they had already been complying with the decree, making it equitable to treat the decree as controlling during the appeal.

6. Court of Equity (RSA 490-D:3)

Referring to the family division as having “the powers of a court of equity” means that:

The court is not limited to rigid legal formulas.
It can fashion flexible, fair remedies to address the realities of family relationships, financial circumstances, and ongoing obligations.

This equity power underlies decisions about interim orders, conversion of final orders, and general management of divorce proceedings.

7. Preservation of Issues

“Preservation” means raising an issue in the trial court so that:

The judge has an opportunity to consider and rule on it, and
The appellate court has a record to review.

If a party fails to:

Object at the appropriate time, or
Raise an omission in a motion for reconsideration,

the issue is generally waived for appeal. Jackson applies this rule to the effective date of division and the alleged failure to rule on personal property distribution.

VI. Broader Impact and Significance

In the Matter of Jackson is not a sweeping doctrinal overhaul, but it meaningfully refines and reinforces several important points in New Hampshire family law:

Judicial correction of decrees: It confirms that even large, outcome-altering “corrections” (e.g., removing treble damages, cutting life insurance obligations in half) can be upheld as clerical corrections where the narrative order makes the judge’s original intent clear. This incentivizes parties and counsel to scrutinize proposed form decrees and to act promptly to correct discrepancies.
Limits of Hodgins in modern practice: By aligning with Watterworth and LeGault, the decision clarifies that:
- The Hodgins formula is a narrow tool, not a general rule for all pension cases.
- Premarital pension accruals are not automatically shielded and can be equitably divided when value is known.
This is particularly important in long-term marriages where much of a spouse’s retirement asset predates the marriage but has appreciated or become central to the family’s financial life.
Equitable management during appeals: The approval of converting a final decree into temporary orders underscores the family division’s equitable authority to maintain stability while appeals are pending, especially when parties have already acted in reliance on the decree.
Contempt and disclosure rules: The decision reiterates the high level of discretion trial courts enjoy in contempt proceedings and the need for clear evidence of knowing disobedience, rather than merely imperfect compliance.
Retroactive alimony as a narrow remedy: The ruling confirms that the start date for alimony is highly discretionary and that voluntary payments and bill coverage during the litigation can justify denying retroactive alimony.
Strict enforcement of preservation: The Court continues its long-standing insistence that issues must be raised below to be reviewed on appeal, even where the alleged error is an omission or lack of clarity in the decree.

VII. Conclusion

In the Matter of Warren & Jean Jackson reinforces the New Hampshire family division’s broad discretion and equitable powers, while clarifying key doctrinal points on:

When and how trial courts may correct their own divorce decrees as scrivener’s errors;
The proper, limited role of the Hodgins formula in pension division;
The discretionary nature of contempt findings and retroactive alimony awards; and
The necessity of rigorously preserving issues for appellate review.

Together with the precedents it cites—particularly Stapleton, Salesky, Stern, Watterworth, LeGault, Gray, Peirano, and Sweatt—this order offers a cohesive roadmap for litigants and practitioners navigating complex financial and procedural issues in New Hampshire divorce litigation.