In a recent New Hampshire Supreme Court decision, a trial court’s award of alimony to a jailed spouse was upheld. In The Matter of Robert Kempton and Peggy Kempton, the wife was imprisoned after she embezzled over 1 million dollars from her employer. At the time of trial she had at least one year remaining on her sentence. The husband, an airline pilot, earned $160,000 per year. The husband testified that the wife should not receive alimony in part because she was in prison, and also because of the financial devastation her imprisonment inflicted upon the family.
The trial court ordered the husband to pay alimony for eight years in the amount of $2,850 per month. In addressing the husband’s challenge to the alimony award, the Supreme Court found that the wife, throughout the marriage, had been the primary caretaker for the children and earned significantly less income. The Supreme Court acknowledged that the wife’s criminal behavior financially devastated the marriage, but noted the husband would most likely be able to recover from those financial losses. Finally, the wife upon her release from prison would need a home, and without an award of alimony she would most likely be financially destitute. The Court found that eight years is sufficient time for the wife to adjust to her revised standard of living and attempt to become financially independent.
Surprisingly, the trial court did not give much weight to the fact that the wife’s criminal conduct had placed her in this financially precarious position. Even though the husband argued that the marriage ended due to the fault ground of imprisonment, the trial court did not find that it caused a breakdown of the marriage. Therefore, her imprisonment was not considered in the alimony calculation. While the husband argued that the awarding of alimony to an incarcerated party violates public policy, the Supreme Court directed the husband to make that argument to the legislature and not to the trial court.
The Kempton decision shows how much leeway is given to a trial court in fashioning an alimony award. Therefore, strong advocacy in a courtroom is incredibly important in arguing the equities of an appropriate alimony award.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].