GOUDREAULT v. GOUDREAULT, 120 N.H. 140 (1980)

412 A.2d 736

PAULINE M. GOUDREAULT v. RUDOLPH A. GOUDREAULT

No. 79-004Supreme Court of New Hampshire Rockingham
Decided March 5, 1980

1. Divorce — Property Settlement — Discretion of Court Where a review of the record, exhibits, and transcript fails to demonstrate an abuse of discretion in dividing property and awarding support, an appeal will be unsuccessful, since matters of property division and alimony are for the trial court to determine in the exercise of its sound discretion.

2. Divorce — Alimony — Modification or Vacation Where former husband’s ill health and poor financial condition were never before the trial court and developed subsequent to the hearings there, a modification of the divorce decree’s provision for support and maintenance, if proper, would be available in the superior court, not the appellate court.

Dalton, Dalton Bryden, of Andover, Massachusetts (Charles F. Dalton, Jr., orally), for the plaintiff.

Shute, Engel Frasier P.A., of Exeter (Francis J. Frasier orally), for the defendant.

MEMORANDUM OPINION

The Superior Court (Contas, J.) transferred the question of reasonableness of a divorce decree. The defendant objects to the division of property and provisions for support and maintenance recommended by the Master (Nicholas G. Copadis, Esq.) and approved by Mullavey, J.

[1] Matters of property division and alimony are for the trial court to determine in the exercise of its sound discretion. “Appeals to this court will not be successful absent a showing that there has been an abuse of discretion.” (Citations omitted.) Symmes v. Symmes, 118 N.H. 488, 490, 387 A.2d 1181, 1182 (1978); Thayer v. Thayer, 119 N.H. 871, 409 A.2d 1326
(1979); Paine v. Paine, 119 N.H. 874, 409 A.2d 790 (1979). A review of the record, exhibits and the substantial transcript of testimony fails to demonstrate an abuse of discretion. [2] The defendant argues that the decree should be modified because of his recent inability to perform due to his poor financial situation and ill health. Both alleged conditions developed subsequent

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to the hearings below and were never before the trial court. We suggest that if there is “[a]ny remedy that is available [it] is in the superior court, not here.” Mayo v. Mayo, 119 N.H. 697, 699, 406 A.2d 719, 720
(1979). But see, Douglas v. Douglas, 109 N.H. 41, 242 A.2d 78 (1968).

Exceptions overruled.