## Facts

- Christopher Ross and Danielle Ross married and later became involved in divorce proceedings in the Circuit Court (Salem Family Division).
- Danielle filed a petition for divorce alleging both fault and irreconcilable differences.
- Christopher filed a cross-petition seeking a fault-based divorce, alleging Danielle committed adultery, and he argued he should receive more than half of the marital estate.
- About eleven months after the divorce litigation began, Christopher allegedly started a sexual relationship with another woman.
- Danielle moved to dismiss Christopher’s fault-based divorce petition, asserting the defense of recrimination based on Christopher’s alleged post-filing adultery.
- The trial court granted Danielle’s motion and dismissed Christopher’s fault-based divorce petition.
- The case proceeded on irreconcilable-differences grounds, and the trial court entered a final divorce decree that divided the marital estate roughly equally.
- Christopher also sought relief related to temporary support orders, arguing that Danielle had understated income and that support should be modified retroactively; the trial court did not retroactively modify the temporary orders, and the record reflected Christopher had withdrawn his modification request.
- Christopher appealed, challenging the dismissal of his fault-based petition, the property division, and the failure to retroactively modify temporary support.

## Issues

1. Whether the trial court could consider a spouse’s conduct occurring after the filing of a divorce petition (alleged adultery) as a basis for the defense of recrimination to dismiss that spouse’s fault-based divorce petition.
2. Whether the trial court erred by declining to award Christopher more than half of the marital estate.
3. Whether the trial court erred by failing to retroactively modify temporary support orders based on alleged misstatements of income when Christopher withdrew his modification request in the trial court.

## Decision

- Affirmed.
- The court held that post-petition conduct may be considered for purposes of recrimination in a fault-based divorce; the trial court therefore did not err by dismissing Christopher’s fault-based divorce petition.
- The trial court’s division of marital property was not an unsustainable exercise of discretion; the refusal to award Christopher more than half of the marital estate was upheld.
- Christopher could not obtain relief concerning retroactive modification of temporary support because he withdrew the request in the trial court; the challenge was not preserved for appellate review.

## Legal Principles

- Recrimination is a defense to a fault-based divorce that bars relief when the party seeking a fault-based divorce is also guilty of marital misconduct that would itself constitute a ground for divorce.
- In New Hampshire, a court may consider conduct that occurs after the divorce petition is filed when deciding whether recrimination applies to a fault-based divorce claim.
- Marital property division in divorce is reviewed deferentially; the appellate court will uphold the distribution unless it reflects an unsustainable exercise of discretion.
- A party who withdraws a request for relief in the trial court generally cannot complain on appeal that the court failed to grant that relief, including retroactive changes to temporary support orders.

## Conclusion

In *Matter of Ross*, the New Hampshire Supreme Court affirmed the dismissal of the husband’s fault-based divorce petition, holding that alleged adultery occurring after the divorce filing could support the wife’s recrimination defense, and it also affirmed the roughly equal property division and the denial of retroactive modification of temporary support because the husband withdrew that request below.


Matter of Ross, 146 A.3d 1232 (2016)