THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0547, In the Matter of Frederick 

Wilkinson and Lisa Wilkinson, the court on October 12, 2023, 

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(2). The petitioner, Frederick Wilkinson (husband), appeals a final decree of 

the Circuit Court (Forrest, J.), issued following a hearing, in his divorce from the 

respondent, Lisa Wilkinson (wife). He challenges the trial court’s alimony award 

and its denial of his motion for contempt. We affirm.

“The circuit court has broad discretion to award alimony.” In the Matter of 

Routhier & Routhier, 175 N.H. 6, 15 (2022). “We review the court’s alimony 

determination for an unsustainable exercise of discretion, and we will uphold its 

factual findings unless they are unsupported by the evidence.” Id. “This 

standard of review means that we review only whether the record establishes an 

objective basis sufficient to sustain the discretionary judgment made, and we will 

not disturb the trial court’s determination if it could reasonably have been made.” 

In the Matter of Braunstein & Braunstein, 173 N.H. 38, 47 (2020). We defer to 

the trial court’s judgment with respect to such matters as resolving conflicting 

testimony, evaluating the credibility of witnesses, and determining the weight to 

be accorded evidence. Id. “As the trier of fact, the trial court could accept or 

reject, in whole or in part, the testimony of any witness or party, and was not 

required to believe even uncontroverted evidence.” Id.

We first address the husband’s argument that the trial court erred by 

awarding alimony to the wife because she is cohabiting with an unrelated adult. 

See RSA 458:19-aa, VII (Supp. 2022) (providing that the court may modify or 

terminate alimony upon a finding of the payee spouse’s cohabitation). The 

husband contends that the court’s alimony order is unjust because the wife had 

been living with her boyfriend in the boyfriend’s home for approximately eight 

months at the time of the final hearing, that they shared household expenses, 

that the boyfriend helped financially support her, that they jointly used the 

home, that they were in an intimate relationship, and that they publicly held 

themselves out as a couple. See RSA 458:19-aa, VIII(a)-(f) (Supp. 2022) 

(providing that the court shall consider such factors in determining whether 

cohabitation exists, and that it shall find cohabitation “if there is a relationship 

between an alimony payee and another unrelated adult resembling that of a 

marriage, under such circumstances that it would be unjust to make an order for 

alimony”).
2

Even assuming that the husband is correct that the statutory factors set 

forth in subsections (a)-(f) of Paragraph VIII have been established by the 

evidence, the statute also provides that the trial court may consider “[a]ny other 

factors that the court finds material and relevant.” RSA 458:19-aa, VIII(g). Here, 

there was evidence that the wife and boyfriend planned on her reimbursing him 

for at least some of the financial assistance he had given her, that she would pay 

rent to him when she was able to do so, and that she did not exercise control 

over, for example, the decorations or utility providers in the home. The trial court 

acknowledged their intimate relationship, but found, among other things, that 

the wife “is seeking to obtain her own residence for herself and her daughter,” 

and that their current living arrangement is “not a long-term situation.” These 

findings are supported by the evidence.

Although the husband contends that the findings as to the intentions of 

the wife and her boyfriend are inherently speculative, we note that it is the 

province of the trial court to evaluate the credibility of the witnesses and to weigh 

the evidence before it. See Braunstein, 173 N.H. at 47. Accordingly, the trial 

court reasonably could have found that this was not a relationship “resembling 

that of a marriage,” and that the circumstances were not such “that it would be 

unjust to make an order for alimony.” RSA 458:19-aa, VIII. Furthermore, the 

ultimate determination of whether to modify or terminate alimony based upon a 

finding of cohabitation is a discretionary matter for the trial court. See RSA 

458:19-aa, VII (providing that “the court may make orders for the modification or 

termination of term alimony upon a finding of the payee’s cohabitation” 

(emphasis added)); Appeal of Rowan, 142 N.H. 67, 71 (1997) (explaining the 

general rule that the word “may” is permissive and indicates a discretionary 

matter).1

Next, the husband argues that the trial court erred by “not considering [the 

wife’s] capacity for employment in making its award of alimony.” He 

acknowledges that the wife had been found to be disabled and incapable of fulltime work by the Social Security Administration, but contends that “the same 

disability determination found that she was capable of part-time sedentary 

work.” We are not persuaded. Contrary to the husband’s assertion, the trial 

court expressly considered the wife’s capacity for employment, as well as the 

disability determination by the Social Security Administration, and found that 

the wife “is unable to be self-supporting at a standard of living that meets her 

reasonable needs.” This finding is amply supported by evidence in the record. 

1 To the extent that the husband argues that the trial court’s decision renders RSA 458:19-aa, 

IX (Supp. 2022) a nullity, or that it divests him of future remedies, his arguments are not 

preserved. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (“It is a long-standing 

rule that parties may not have judicial review of matters not raised in the forum of trial.”); N.H. 

Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002) (observing that, in order to satisfy 

the preservation requirement, issues which could not have been presented to the trial court 

before its decision must be presented to it in a motion for reconsideration).
3

Accordingly, based upon our review of the record, we cannot conclude either that 

the trial court’s findings are unsupported by the evidence, or that the court 

unsustainably exercised its discretion by granting alimony to the wife; thus, we 

will not disturb the court’s decision. See Routhier, 175 N.H. at 15; Braunstein, 

173 N.H. at 47.

Lastly, the husband argues that the trial court erred by denying his motion 

for contempt alleging that the wife violated the court’s anti-hypothecation order 

when she spent a sum of money from her bank account. Although the husband 

asserts that “[t]here is no evidence that all this money was spent for reasonable 

living expenses,” see RSA 458:16-b, I (2018) (allowing a party to use assets which 

would otherwise be subject to an anti-hypothecation order for, among other 

things, “reasonable and necessary expenses of living”), the record demonstrates 

otherwise. There was evidence before the court that, in addition to normal living 

expenses, the wife lost most of her and her daughter’s personal possessions, and 

needed to purchase such necessities as clothing, shoes, bedding, towels, 

toiletries, a new cellphone, and other items. Additionally, the wife suffers from 

medical issues that required her to purchase an expensive item of medical 

equipment, and to regularly purchase a large assortment of consumable medical 

supplies. On these facts, the trial court could reasonably have found that the 

wife used the funds for reasonable and necessary living expenses, and, therefore, 

we conclude that the husband has failed to demonstrate that the trial court

unsustainably exercised its discretion by denying his motion for contempt. See

In the Matter of Ndyaija & Ndyaija, 173 N.H. 127, 138 (2020) (holding that we 

review a trial court’s ruling on a motion for contempt under our unsustainable 

exercise of discretion standard); Gallo v. Traina, 166 N.H. 737, 740 (2014) 

(holding that the appealing party has the burden of demonstrating reversible 

error).

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ., 

concurred.

Timothy A. Gudas,

 Clerk