THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2024-0376, In the Matter of Zachary Zieroff and April Zieroff, the court on July 21, 2025, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The petitioner, Zachary Zieroff, appeals a final decree entered by the Circuit Court (Carroll, R., approved by Boyle, J.) in his divorce from the respondent, April Zieroff, following a final evidentiary hearing at which he failed to appear. The petitioner argues that the trial court erred by dividing the marital property in an unequal manner, and by determining his income for purposes of awarding the respondent alimony. We affirm.
The trial court has broad discretion in fashioning a final divorce decree. In the Matter of Spenard & Spenard, 167 N.H. 1, 3 (2014). Its discretion includes decisions concerning alimony and property distribution. Id. We will not overturn the trial court's rulings on such matters absent an unsustainable exercise of discretion, reviewing the record only to determine whether it contains an objective basis to sustain the court's discretionary judgments. Id. If the trial court could reasonably have reached its findings on the evidence before it, they will stand. Id. We assume that the trial court made all findings of fact necessary to support its general rulings. See In the Matter of Dube & Dube, 163 N.H. 575, 579 (2012). We defer to the trial court's judgment in evaluating the credibility of the witnesses and determining the weight of the evidence presented. In the Matter of Aube & Aube, 158 N.H. 458, 465 (2009). RSA 458:16-a, II (2018) requires the trial court to divide marital property, including marital debt, see Maldini v. Maldini, 168 N.H. 191, 195 (2015) (stating that "marital property" includes "marital debt" for purposes of property division), in a manner that is equitable, see In the Matter of Sarvela & Sarvela,
154 N.H. 426, 431 (2006). When dividing marital property, the court must presume that an equal division is equitable unless it determines, after considering one or more statutory factors, that an equal division would not be equitable or appropriate. RSA 458:16-a, II; Sarvela, 154 N.H. at 430-31. Such factors include the "duration of the marriage," the "age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party,"
and the "opportunity of each party for future acquisition of capital assets and income." RSA 458:16-a, II(a), (b), & (c). The court is not required to divide the
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property by some mechanical formula, but in a manner that it deems just based on the evidence presented and the equities of the case. Sarvela, 154 N.H. at 431. The trial court "shall specify written reasons for the division of property which it orders." RSA 458:16-a, IV (2018).
When parties to a divorce contest the amount of income generated by a business owned by one of the parties for purposes of awarding alimony, it is generally the burden of the party owning the business to produce information, such as evidence of the business's reasonable and necessary expenses, that is necessary to accurately determine the business's income. See In the Matter of Hampers & Hampers, 166 N.H. 422, 440-41 (2014). It is likewise the burden of the appealing party, in this case the petitioner, to provide this court with those portions of the trial court record, including any relevant pleadings or evidentiary documents, that are necessary to decide the issues raised. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); In the Matter of Rokowski & Rokowski, 168 N.H. 57, 62 (2015) (applying Bean to appealing party's failure to provide exhibits admitted into evidence at evidentiary hearing); Estate of Day v. Hanover Ins. Co., 162 N.H. 415, 422 (2011) (applying Bean to failure to provide relevant pleadings in the trial court). We assume that relevant portions of the record not provided on appeal support the result reached by the trial court. See Bean, 151 N.H. at 250.
The record establishes that in January 2024, shortly before the then- scheduled final hearing, the trial court granted the petitioner's expedited motion to continue the hearing on the basis that his counsel had withdrawn and that his current counsel needed additional time to prepare. The court scheduled a seven-hour final hearing for May 7, 2024. On April 18, 2024, at a hearing in a related proceeding between the parties, the petitioner's current counsel confirmed that, although he had not yet filed an appearance, he would be representing the petitioner at the May 7 final hearing. On May 6, the day before the final hearing, the petitioner's counsel filed both an appearance and an emergency motion to continue. The respondent objected, and the Trial Court (Curran, J.) denied the emergency motion on the same day. At the May 7 final hearing, neither the petitioner nor his counsel appeared. Accordingly, the trial court defaulted the petitioner and proceeded with the final hearing on the respondent's offer of proof. We note that the petitioner neither challenges the trial court's denial of the emergency motion to continue nor argues that the hearing notice failed to notify him that the court might hold an immediate hearing on the contested issues if he failed to appear. See Douglas v. Douglas, 143 N.H. 419, 426-27 (1999) (noting that trial court may immediately hold a hearing on division of marital property upon a party's failure to attend a final divorce hearing if the hearing notice clearly stated that the court could do so).
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In her offer of proof, the respondent represented that the parties had been married since June 10, 2014, that they purchased the marital home in 2017 for approximately $269,000 to $270,000, and that a recent certified market analysis showed the home's value to be between $564,980 and $675,000. Although the respondent noted that the petitioner "was trying to assert that [she was] wrong about [the home's value] and that it was worth approximately $440,000," the trial court observed in its final order that the petitioner had provided no basis for his estimate. The respondent asserted that, although the petitioner had been ordered to pay the mortgage on the home, he had paid only half the mortgage for April 2024 and had not yet paid the mortgage for May, which had been due on May 1.
The respondent further asserted that at the April 18 hearing in the related matter, the petitioner's counsel had represented that in addition to monthly "VA benefits" of $4,265 that the petitioner had disclosed in his July 2023 interrogatory responses, he now owned a business with his brother for which he was working "70-plus" hours per week, and that the new business was "bringing in very substantial income." The petitioner had not, however, supplemented his interrogatory responses to disclose the new income. See Fam. Div. R. 1.25(E)(9). Nor had the petitioner provided an updated financial affidavit disclosing the new business and any income that it generated. See Fam. Div. R. 2.16(A). The respondent emphasized that she had asked specific questions in her June 2023 interrogatories relative to any self-employment income the petitioner received because he had claimed to be unemployed, and because he owned another business. The respondent additionally noted that she had recently been able to gain access to certain of the petitioner's bank accounts, and that the accounts revealed "[s]ome strange transfers and surprising numbers" in addition to the VA benefit that were not previously disclosed, including recent deposits of $2,000 on April 22 and $1,800 on May
2. By contrast, the respondent filed a financial affidavit with the court at the final hearing, showing her monthly income to be $4,326 based upon her employment as an assistant in an oil distribution business. Finally, the respondent represented that she had opened a credit card account during the marriage "only because [the petitioner had] persuaded her"
to open it so that he could fund the rebuilding of an engine on his motorcycle. The respondent noted that there was a balance on the card likely in excess of $7,457. Although the petitioner had been ordered to make monthly payments on the card, he had not been making the required payments, and there was an outstanding motion for contempt regarding the matter that the trial court acknowledged having reviewed.
Based on her offer of proof, the respondent requested that the trial court order the marital home to be sold, with 60 percent of the sale proceeds going to the respondent and 40 percent to the petitioner. The respondent argued that
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such a division was equitable in light of the "very substantial income" that the petitioner's counsel had represented that he was receiving from his new business in addition to his monthly VA benefit, and in light of the better position he was in to acquire future capital and earn future income. The respondent further argued that the division was equitable because certain actions that the petitioner had taken during the marriage that were the subject of the related proceeding had caused the marriage to fail and to harm her economically. In its final order, the trial court granted the respondent's request that it take judicial notice of the findings in the related proceeding. In addition to the marital home, the respondent requested that she be awarded a retirement account she had set up from her own earnings valued at approximately $10,000, and that the parties be awarded the bank accounts that were in their own names. The respondent also requested that the parties be awarded their own motor vehicles, but that she also be awarded the petitioner's motorcycle so that she could sell it and apply the proceeds to the credit card debt that the petitioner incurred. The respondent requested that the petitioner otherwise be ordered to pay the credit card debt in its entirety. With respect to personal property, the respondent requested that the petitioner be awarded the items he had specifically requested in an itemized list he had provided, and that she be awarded whatever personal property remained, an amount she characterized as "not . . . very much" personal property. We note that the petitioner had valued the items on the list at approximately $17,000. Finally, the respondent requested that the petitioner be awarded a time share for which she had not obtained a valuation.
With respect to alimony, the respondent submitted a request for term alimony calculated at $1,029 per month pursuant to RSA 458:19-a, II (Supp. 2024). In calculating alimony, the respondent estimated the petitioner's monthly self-employment income to be $4,546, in addition to his monthly VA benefit of $4,256. In the absence of any financial disclosures from the petitioner regarding his self-employment income, the respondent based her estimate upon an hourly rate of $15 at the 70 hours per week that the petitioner's counsel had represented he was working, an estimate that the respondent characterized as "conservative."
The trial court granted the respondent the property division she had proposed, finding that the unequal division was justified by the "duration of the marriage," the "age, health, social or economic status, occupation, vocational skills, employability, separate property, amount and sources of income, needs and liabilities of each party," and the "opportunity of each party for future acquisition of capital assets and income." RSA 458:16-a, II(a), (b), & (c). The trial court additionally granted the respondent's request for term alimony of $1,029 per month for four-and-one-half years, finding "a great disparity in the
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earnings capabilities of the parties, that Alimony will provide support for the Respondent to sustain herself, and that the Petitioner has sufficient income to assist the Respondent through Alimony."
The petitioner argues that there was no basis on which to order an unequal division of property, claiming that "[t]here was no finding regarding [the statutory factors under RSA 458:16-a, II cited by the trial court] when it comes to a reason for the division to be uneven," and that the evidence does not support an unequal division under those factors. With respect to alimony, the petitioner argues that "the record does not reflect the proper amount of alimony payments under the statute due to a miscalculation of [his] income,"
and that there was no evidentiary basis to find that his business generated monthly income of $4,546, or to support the trial court's calculation of alimony under RSA 458:19-a, II. We disagree.
The representations in the respondent's offer of proof support both the trial court's division of marital property and its calculation of alimony. Although there may not have been a lot of information from which to determine the petitioner's self-employment income, the absence of such information is solely attributable to the petitioner's failures to disclose it by supplementing his interrogatory responses and filing an updated financial affidavit, as were his obligations. See Fam. Div. R. 1.25(E)(9), 2.16(A). The absence of such evidence in this case did not prevent the trial court from determining the petitioner's self-employment income based upon the available evidence. Cf. In the Matter of Dow & Dow, 170 N.H. 267, 268-71 (2017) (holding under prior law that, in awarding alimony, trial court has authority to attribute income to obligor based upon obligor's earning capacity); Hampers, 166 N.H. at 440-41 (holding that business owner has burden to establish the deductibility of business expenses in determining income from the business). We note that, consistent with the representation of the petitioner's counsel at the April 18 hearing in the related matter that the new business was "bringing in very substantial income," and the determination that the petitioner's monthly self-employment income was $4,546, the respondent presented evidence that in the weeks immediately prior to the final hearing, there were otherwise unexplained deposits of $3,800 into the petitioner's bank account.
Finally, we note that the petitioner has not provided, as part of the record on appeal, (1) the respondent's financial affidavit; (2) the petitioner's "old financial affidavit" referenced by the respondent in her offer of proof; (3) the petitioner's July 2023 responses to the respondent's June 2023 interrogatories;
(4) the motion for contempt regarding the credit card; or (5) the trial court's orders and findings in the related matter, of which the court took judicial notice at the respondent's request. We assume that these documents support the trial court's findings and rulings. See Bean, 151 N.H. at 250. Upon this
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record, we cannot conclude that the trial court unsustainably exercised its discretion in its property division or alimony award. Spenard, 167 N.H. at 3. Affirmed.
MacDonald, C.J., and Donovan and Countway, JJ., concurred.
Timothy A. Gudas, Clerk