2008-756, 2009-066, 2009-026, IN RE ESTATE OF KATHLEEN ANTONIA PORTER; IN RE CHARLES BALOK & a.

547:11-d (2007). We affirm. orders after he had perfected an appeal to the superior court pursuant to RSA granted to him pursuant to the terms of the settlement, and to issue certain

probate court lacked jurisdiction to terminate a life estate in real property claim against the Estate of Kathleen Antonia Porter (estate). He argues that the Court (Lewis, J.) relative to a probate court-approved settlement of Balok’s orders of the Rockingham County Probate Court (Hurd, J.) and the Superior PER CURIAM. In these consolidated appeals, Charles Balok challenges

brief), for the Estate of Kathleen Porter. Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

Hansen on the brief), for Charles Balok. LL Hansen Legal Professional Association, of Portsmouth (Lorraine L.

to press. Errors may be reported by E-mail at the following address: Opinion Issued: August 5, 2009

No. 2009-026 page is: http://www.courts.state.nh.us/supreme. Rockingham 2009-066 Nos. 2008-756 editorial errors in order that corrections may be made before the opinion goes Rockingham County Probate Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as him to file a corporate surety or cash bond in the amount of $15,000. p. 2 to grant Balok’s February 13, 2007 motion for reconsideration, and ordered vacated its order of January 17, 2007, amended its order of November 2, 2007,

19, 2008 order, and Balok filed a third appeal. jurisdiction over the property. On September 19, 2008, the probate court the life estate because Balok had not filed the bond required by its September 547:11-d appeal. On December 31, 2008, the probate court again terminated

challenging the merits of the superior court’s dismissal of his RSA 547:11-d

of the RSA 547:11-d appeal, and because, in any event, the court lacked 2 the probate court lacked jurisdiction because he was challenging the dismissal Separately, he filed an interlocutory appeal from the dismissal of the RSA earlier orders and require Balok to vacate the property. Balok countered that

court’s initial January 17, 2007 order. We did not preclude Balok from

pursuant to RSA 547:11-d.

interlocutory appeal of the superior court’s May 15, 2008 dismissal. against the estate. The estate then requested that the probate court enforce its after he had perfected his RSA 547:11-d appeal and while he pursued an court, arguing that the probate court lacked jurisdiction to take any action untimely, but only to the extent that Balok sought to challenge the probate consolidated all three appeals, and granted a motion to dismiss the appeal as interest would terminate if he failed to make such payments. By order dated February 26, 2009, we accepted the interlocutory appeal, parties’ arguments on the merits. Balok appealed to the superior court and to carry such costs in the future. The agreement provided that Balok’s

for lack of subject matter jurisdiction, but allowed Balok to assert other claims Balok appealed the probate court’s September 19, 2008 order to this

denied the motion for reconsideration on November 2, 2007, addressing the estate for prior mortgage, insurance and tax payments relative to the property,

On May 15, 2008, the superior court dismissed the RSA 547:11-d appeal

court treated as an untimely motion for reconsideration. The probate court a life interest in certain property to Balok, and Balok agreed to reimburse the On February 13, 2007, Balok filed a pro se petition, which the probate

granted the petition by summary order on January 17, 2007. payments under the agreement. Balok failed to object, and the probate court seeking to terminate the life estate, claiming that Balok had not made required On December 5, 2006, the estate filed a petition in the probate court

approved a settlement of that claim, under which the estate agreed to transfer law spouse, see RSA 457:39 (2004). On August 1, 2006, the probate court share of her estate, see RSA 561:1 (2007), claiming to have been her common After the death of Kathleen Antonia Porter, Balok sought an intestate within its jurisdiction. p. 3 Likewise, the probate court has authority to enforce the settlement of a matter decedent’s estate); RSA 554:1 (2007) (inventory to include real estate). vested upon the death of the decedent.

no jurisdiction of the real estate of a decedent,” 547:11-c (2007) (jurisdiction over quiet title actions regarding real property in debts since, at common law, the rights of the heirs or devisees to real estate of the executor seeking a license to sell the real estate, the probate court has than authorize an administrator to seek a license to sell property to satisfy superseded by the current statutory scheme. Today, RSA 559:1 does no more

contest). matter jurisdiction of the probate court.

judgment actions regarding title to real property in decedent’s estate); RSA 559:1. Although we have previously held that “[i]n the absence of the necessity limiting the probate court’s jurisdiction over real estate, they have been DeGrandpre & W. Zorn, Accordingly, to the extent Fleming and O’Dwyer construed RSA 559:1 as

(probate court erred by not granting motion to set aside the settlement of a will dismissal, and limit our analysis to his arguments concerning the subject Cf. In re Estate of Kelly, 130 N.H. 773, 781-82 (1988) 547:11-d appeal. Accordingly, we affirm the superior court’s May 15, 2008 not, however, briefed whether the superior court erred by dismissing the RSA

547:3, I(b), (l) (Supp. 2008); RSA 547:11-b (2007) (jurisdiction over declaratory jurisdiction because the property was not subject to a license to sell under RSA of Estates, Trusts & Guardianships § 5.6.7, at 5-22 (4th ed. 2008); see RSA

of the decedent if the property is ‘in’ the estate of the decedent.” 10 C. Today, “the probate court has jurisdiction to resolve issues involving real estate Act of 1993, see Petition of CIGNA Healthcare, 146 N.H. 683, 689 (2001). disputes concerning the real estate of a decedent through the Omnibus Justice legislature effectively expanded the probate court’s jurisdiction to encompass 687, 690 (1974); see In re Estate of O’Dwyer, 135 N.H. 323, 324-25 (1992), the issued by the probate court after that appeal was perfected are void. Balok has Fleming v. Aiken, 114 N.H.

We address first Balok’s argument that the probate court lacked

817 (1985) (issues raised in interlocutory appeal but not briefed are waived).

any order after he had perfected his RSA 547:11-d appeal, and that all orders (2007). He argues further that the probate court lacked jurisdiction to issue because the property was not subject to a license to sell under RSA 559:1 On appeal, Balok argues that the probate court was without jurisdiction

Court Rule 7, appeal was timely as to the order denying the untimely motion). reconsideration did not stay the running of the appeal period under Supreme See Germain v. Germain, 137 N.H. 82, 84-85 (1993) (while untimely motion for appeal, or of any of the other probate court orders from which he appealed. jurisdiction to issue orders after he filed the RSA 547:11-d appeal is moot. 4 p. 4 terminate the life estate, Balok’s argument that the probate court lacked life estate, and because we conclude that the probate court had jurisdiction to

court’s dismissal was to uphold the probate court’s earlier termination of the

the settlement, including the terms concerning the life estate.

later terminating the life estate for failure to file a bond, are void,

court under RSA 547:11-d.

dismissal of the RSA 547:11-d appeal. Inasmuch as the effect of the superior BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. circumstances, the probate court’s jurisdiction encompassed enforcement of that he would also make certain payments or forfeit the interest. Under these Affirmed. appeal was filed, including its orders vacating its January 17, 2007 order but court, that Balok would enjoy a life interest in real property of the estate, but has become academic or dead is moot). N.H. Assoc. of Counties v. State of N.H., 158 N.H. 284, 292 (2009) (issue that

jurisdiction to issue orders after he had perfected an appeal to the superior

subject matter jurisdiction are void), we have affirmed the superior court’s Daine, 157 N.H. 426, 428 (2008) (judgments rendered by trial court lacking

the probate court of continuing jurisdiction, and that all of its orders after the settlement of this claim, the parties agreed, with the approval of the probate jurisdiction). Even if we were to assume that the RSA 547:11-d appeal divested (1966) (as a general rule, perfection of appeal divests trial court of continuing

We next address Balok’s argument that the probate court lacked

share of the estate as the ostensible common law spouse of the decedent. In In this case, Balok filed a claim in the probate court seeking an intestate

in order for the probate court to resolve disputes over property of a decedent. supra § 35.7.1, at 35-14. The statute does not require a license to sell property