2011-338, In the Matter of Tami Mallett and Michael Mallett

This is an interlocutory appeal from two orders of the

respondent. a.m. on the morning of their release. T Daniel J. Harkinson, of Rochester, by brief and orally, for the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: Conway Family Division orally), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

finding?

estoppel and to grant a petition for divorce based on such a (6) Does the family division have jurisdiction to find a marriage by

is in bad faith, vexatious, wanton, or oppressive? of the other parent, in the absence of a finding of conduct that parent in a parenting petition case pay any part of the legal fees (5) Does the family division have jurisdiction to order that one

unmarried parents of children? 490-D:3, or otherwise, to partition real estate jointly owned by

(4) Does the family division have jurisdiction under N.H. RSA

married? health insurance to the other parent, when the parties never 490-D:3, or otherwise, to order one parent of a child to provide (3) Does the family division have jurisdiction under N.H. RSA

for services between unmarried parents of children? 490-D:3, or otherwise, to adjudicate a claim for compensation

( p. 2 2) Does the family division have jurisdiction under N.H. RSA

who never married? with respect to assets of parties who have children together but

490-D:3, or otherwise, to adjudicate legal or equitable claims

(1) Does the family division have jurisdiction under N.H. RSA

transfer, and transferred the following six questions to this court: interlocutory transfer. The trial court granted the request for an interlocutory

father moved for reconsideration of the orders, or in the alternative, for an

attorney’s fees. In two separate orders, the court granted both motions. The The mother then filed a motion to amend, and later a motion for

among other things, the division of the parties’ personal and real property.

parenting and equity petitions to more fully develop her theories related to, the parties,” and granted the mother leave to amend her petition, or to file “equitable authority to make certain adjustments of the rights and interests of

support raised” in the petition for divorce. The court also ruled that it had

ruled that it would nonetheless “address all issues of parenting and child mother never married. The trial court granted the father’s motion in part, but the father filed a motion to dismiss, based upon the fact that he and the

On March p. 2 2, 2009, the mother filed a petition for divorce. In response, resultant injury. Cadle Co. v. Bourgeois

p. 3 induced to rely upon the false representation or concealment; and (3) a ignorant of the truth and who was intentionally, or through culpable neglect, representation or concealment of material facts; (2) a recipient who was

The application of equitable estoppel requires: (1) a knowingly false

on our decision in this case. For estoppel to apply, the party asserting it must

relationship was a marriage. See

relationship at will.” Coleman

the doctrine of marriage by estoppel because the doctrine would have no effect the two lived together as husband and wife. See

these proceedings. party to a relationship knowingly misrepresented to the third party that the committed relationship should be treated as a marriage for the purposes of Instead, relying upon the principles of estoppel, she argues that the parties’ together in an unmarried state and [were] privileged to discontinue that

We need not decide whether we would, under any circumstances, adopt was no valid marriage, but one or both of the parties believed there was, and (N.C. 1987).

doctrine to prohibit the defense of invalidity against a third party where one

doctrine generally “does not apply in cases where the parties knowingly live[d] App. 1995); Brown v. Imboden, 771 S.W.2d 312, 313 (Ark. Ct. App. 1989). The S.W.3d 757, 760 (Tenn. 2000); Yun v. Yun, 908 S.W.2d 787, 790-91 (Mo. Ct.

except to the limited extent provided in RSA 457:39 (2004). Joan S. v. John S. apply the doctrine to prevent one party from claiming invalidity where there chapter 457 (2004 & Supp. 2011). Common law marriage is not recognized, Other jurisdictions have recognized marriage by estoppel. Some states

Suneson, 508 N.E.2d 891, 891 n.2 (Mass. App. Ct. 1987). Jessie v. Jessie, 920 S.W.2d 874, 877 (Ark. Ct. App. 1996); Suneson v. circumstances, it may prevent a party from claiming the defense of invalidity. that her relationship with the father does not meet these requirements, and context of marriage, estoppel does not create a valid marriage; rather, in limited may be treated as the spouse of the deceased. Here, the mother recognizes, 149 N.H. 410, 418 (2003). In the such, for at least three years and until the death of one of them, the survivor

marriage, the union of two people must comply with the requirements of RSA

acknowledge each other as husband and wife, and are generally reputed as 121 N.H. 96, 98-99 (1981). Under RSA 457:39, when two persons cohabit and

New Hampshire, marriage is controlled by statute. To constitute a valid, legal estoppel between the parties and grant a divorce based upon that finding. In We first address whether the family division may find a marriage by

p. 4 We interpret statutes in the context of the overall statutory scheme, not in

Resolution of this issue requires us to engage in statutory interpretation.

needed to enforce orders in cases properly before it. jurisdiction, but merely provides the family division with the equitable powers

insurance. The father argues that RSA 490-D:3 does not grant any such

parties’ real estate, divide assets and order the father to pay her health claims raised in her amended petition, including the power to partition the issues, pursuant to RSA 490-D:3, the court has “ancillary” jurisdiction over all

division express statutory jurisdiction over the child support and custody

The mother argues that because, in this case, RSA 490-D:2 grants the family

subject matter jurisdiction lies with [the family division].” RSA 490-D:3 (2010). 490-D:2, the family division has “the powers of a court of equity in cases where unmarried parties. However, in addition to the jurisdiction granted by RSA

division of assets, or over any other claims for compensation between

of law subject to de Whether the family division has subject matter jurisdiction is a question RSA 490-D:2 does not give the family division jurisdiction over the

children in need of services. RSA 490-D:2, III-V. unless from the statute it appears that a different meaning was intended,” N.H. construe it “according to the common and approved usage of the language the language of the statute, Kenison v. Dubois, 152 N.H. 448, 451 (2005), and

other specific matters, such as delinquency and abuse and neglect, and

We next address questions one through four, i.e.

claims to assets and claims for compensation for services rendered. health insurance coverage to the other parent, or adjudicate legal or equitable jurisdiction to partition jointly owned real estate, order one parent to provide children of unwed parties.” RSA 490-D:2, I, II. It also grants jurisdiction over support, and to establish paternity” and “[a]ctions for support or custody for over “[p]etitions for divorce, nullity of marriage, alimony, custody of children, id.; RSA 490-D:2 (2010). RSA 490-D:2 grants the family division jurisdiction jurisdiction. See id. Its powers are limited to those conferred by statute. See 615, 622 (2010). The family division is a court of limited subject matter authority to recognize a marriage by estoppel, and thus cannot grant a divorce. novo review. In the Matter of O’Neil & O’Neil, 159 N.H.

between unmarried parties who have children together, the family division has

Accordingly, we hold that in this case, the family division does not have the with the father in an unmarried state. See Coleman, 19 S.W.3d at 760. believed she and the father were married. Further, the mother knowingly lived be ignorant of the truth. Bourgeois, 149 N.H. at 418. Here, the mother never p. 5 5

property, and other “divorce-like” remedies in the family division, merely

However, allowing unmarried parties to adjudicate their claims to assets, real

family division, it has the power to grant that jurisdiction to the family division. opportunity to have all their claims, including contract claims, heard in the Should the legislature determine that “unwed families” should have the

restricts all divorce remedies and property distribution to married couples.

jurisdiction for purposes of child-related matters, this statutory scheme plainly While unmarried parties are expressly within the family division’s

cases.

Domestic Relations Law permits a court to order these remedies in non-divorce there has been a divorce decree. Further, no other chapter or provision in our 4 p. 5 58:19 (Supp. 2011) limits orders for the payment of alimony to cases where

party to pay the other’s health insurance “upon a decree of . . . divorce.” RSA

decreed.” Similarly, RSA 4 p. 5 58:18-a (Supp. 2011) permits an order requiring one

equitable division of property only “[w]hen a dissolution of a marriage is division of property and orders of alimony. RSA 4 p. 5 58:16-a (2004) permits the 490-D, RSA chapter 458 (2004 & Supp. 2011) governs, among other things, the

Although the family division’s jurisdiction is expressly defined by RSA chapter

language of RSA 490-D:3 and the overall scheme of the relevant statutes. In its order, the trial court failed to accord proper weight to the plain

her filing to properly invoke such equity jurisdiction.

jurisdiction pursuant to RSA 490-D:3, and granted the mother leave to amend holdings, and property decided.” The court ultimately determined it had courts to have disputes as to interests in their furniture, vehicles, joint

Family Division, would have to file a separate action in the Superior or Probate

unwed parents, once parenting rights and responsibilities are decided in the

‘families’ to seek relief in alternate forums.” The court explained, “For instance, decision maker could be construed in such a way as to leave a large number of initiative to resolve all family related issues in a single court before a single

growth of unwed families and “[found] it incongruous that the legislative

single family to one family division justice.” It commented on the “dramatic” family division with a goal of assuring “the assignment of all family matters of a jurisdiction for child-related matters, and that the legislature established the

that the statutory scheme includes unmarried parties with children within its

express contract theories and quantum meruit. The trial court then explained determination of their equitable rights, and permits recovery based upon New Hampshire case law permits unmarried parties to seek a judicial

In granting the mother’s motion to amend, the trial court first noted that

to include.” State v. Lamy, 1 p. 5 58 N.H. 511, 515 (2009). legislature might have said nor add language that the legislature did not see fit N.H. 98, 101 (2011) (quotation omitted). We will not consider “what the Resident Ltd. Partners of Lyme Timber v. N.H. Dep’t of Revenue Admin., 1 p. 6 62 6

husband’s access to the court because it has “inherent power to issue

papers. Id

employees. Id things, entering the company’s premises, harassing the receiver and harassing

that the family division had authority to issue orders reasonably limiting the jurisdiction to issue the restraining orders. Id. at p. 6 621. We first determined court, except to attend hearings in which he was a litigant or to file necessary The husband appealed, arguing that the family division lacked

or the receiver. Id. from entering the company’s premises or contacting management, employees,

. The family division entered an order prohibiting the husband

restraining order against the husband because he had been, among other company owned by the husband. Id. at p. 6 620. The receiver later moved for a Subsequently, the family division appointed a receiver to manage a In O’Neil

. at p. 6 619.

Hampshire Judicial System,” issued an order prohibiting him from entering the a contract theory. Id construed to be threatening to any person involved with his cases in the New was notified of his behavior, and because the threats “could reasonably be threatened to harm himself and others more than once. Id. The family division interacted with court employees in ways that made them uncomfortable, and in a way that required court intervention. Id. at p. 6 617-19. He approached and 623-24. Throughout the divorce proceedings, the husband conducted himself the parties were married and sought a divorce. O’Neil Id, 159 N.H. at 617-18, , we addressed the equitable powers of the family division where

have jurisdiction over such matters. Id. subject matter jurisdiction over claims relating to their children. In Joan S.. at 99. We did not, however, indicate which court would claims between unmarried parties merely because the family division has able to obtain equitable adjustment of their rights, and may even recover under such theories are properly raised, unmarried couples living together may be The mother, relying upon our decisions in O’Neil settlement” to unmarried parties. Id. at 98-99. We noted, however, that where extent provided by RSA 457:39, and declined to apply a “divorce-like property the legislature and is contrary to the statutory scheme. Hampshire does not recognize common law marriages except to the limited accordance with the statute governing divorce. Id. We explained that New . at 97-98. She sought alimony, child support, and property division in contended that the relationship should nonetheless be treated as a marriage. S., 121 N.H. at 99. The parties in Joan S. never married, but the petitioner we discussed the availability of equitable remedies to unmarried parties. Joan

interpret RSA 490-D:3 to grant the family division jurisdiction over all equitable

determining matters properly before it, would encroach upon the province of because the legislature granted the family division the “powers of equity” in p. 7 7

language, see

interpretation proposed by the mother is not supported by the statutory

through four in the negative.

powers. It does not grant the family division general equity jurisdiction. The The plain language of RSA 490-D:3 permits only the exercise of equity

health insurance and compensation for services, and answer questions one amend her filings to allow her to file equitable claims to real estate, assets, Accordingly, we reverse the trial court’s order granting the mother leave to

family division’s equitable powers in O’Neil

and support issues. acknowledged in Joan S. properly before it – child custody and support. Unlike in O’Neil to allow the family division to decide matters that are unrelated to the matter statute to grant the family division jurisdiction over the mother’s other claims. the court’s subject matter jurisdiction. Here, in contrast, the mother asks us Co., 160 N.H. at 31 p. 7 7. We thus decline to extend O’Neil by interpreting the construction of the overall statutory scheme above. See Appeal of Union Tel.

Kenison, 152 N.H. at 451, and is inconsistent with our

only pursue them in the proper court. And, although we acknowledged the

unrelated claims would not facilitate the court’s decision on the child custody claims in this case. Her argument misconstrues our holdings. Although we, deciding these

and in O’Neil division’s use of equity powers to assist in resolution of matters properly within Here, the mother argues that because in Joan S. In O’Neil, consistent with the statutory language, we upheld the family

to issue the restraining order pursuant to RSA 490-D:3. See pursuant to the family division’s proper subject matter jurisdiction. the [husband] . . . subject to distribution,” the family division had jurisdiction, those powers may only be exercised to manage and determine the viability of [the company] owned or controlled by equitable claims to obtain property distribution and asset division, she may

RSA 490-D:3, the family division has jurisdiction over all her non-child related company and the receiver because such an order is strictly equitable. Id we upheld the family division’s exercise of equitable powers under unmarried couples may bring equity actions to determine their property rights,

We held that, because the receivership was established “as part of the divorce orders in cases where the family division has subject matter jurisdiction. Id. equitable powers, under RSA 490-D:3 it has jurisdiction to issue equitable 623. We explained that although the family division lacks a general grant of

jurisdiction to issue the restraining order limiting his contact with both the The husband also argued that the family division did not have

staff, and of members of the public who use its facilities.” Id. at 622-23. restraining orders to safeguard the security of its judicial and administrative p. 8 The mother argues that the trial court applied the Harkeem

the mother’s legal fees and costs each month after December 1, 2010.

competent counsel as the [father].” The court then ordered the father to pay

would “be at a substantial disadvantage if she is unable to have equally as the [mother’s] legal costs and expenses.” It also determined that the mother no question . . . that the [father] has the ability to pay both his own as well as

reasonable claim in the law as it is, or as it might arguably be held to be”).

In the trial court’s order dated January 23, 2011, it found that “[t]here is litigation is not necessarily vexatious in nature. See court time as well as attorney time” and expert testimony. However, lengthy

Harkeem

without any reasonable basis in the facts provable by evidence, or any [attorney’s] fees in any action commenced, prolonged, required or defended 502 (1988) (explaining that “we have recognized a . . . court’s power to award cause or excuse; harassing; annoying”); cf. Keenan v. Fearon, 130 N.H. 494, 1701 (9th ed. 2009) (defining “vexatious” as “without reasonable or probable

merely because the order noted that the issues have required “substantial awarding fees based in part upon the “vexatious nature” of the litigation, been unnecessary for the successful party to have brought the action.” exception,

pay her own attorney’s fees. See The general rule in New Hampshire is that each party to litigation must parties. Under the Harkeem

159 N.H. at 744. between the parties or a judicially-created exception to the general rule. See, 117 N.H. at 691 (quotation and citations omitted); accord Bedard,

characterized as unreasonably obdurate or obstinate, and where it should have wantonly, or for oppressive reasons, where the litigant’s conduct can be is permissible where the other party has “acted in bad faith, vexatiously,

the trial court may award attorney’s fees based upon the conduct of one of the In Harkeem v. Adams conduct that is vexatious, wanton or oppressive., 117 N.H. 687, 690-91 (1977), we recognized that

omitted). id.; In the Matter of Hampers & Hampers, 154 N.H. 275, 289 (2006) (quotation

Otherwise, an award of attorney’s fees must be grounded upon an agreement statute specifically authorizes it, a court may award attorney’s fees. Id. 744 (2010). However, we have recognized exceptions to this rule. Id. Where a

party to pay any part of the legal fees of the other party, absent bad faith or action based upon a parenting petition between unmarried parties to order one Finally, we address whether the Family Division has jurisdiction in an

p. 9 the trial court failed to make a determination as to the reasonableness of the be vacated either because the court did not offer a rationale for it or because

that our decision in Hampers situations where the parties were no longer married. Specifically, she argues

On appeal, the husband argued that the award of attorney’s fees should

thereto or to the child in this matter in the future.” Id 9

exception, and upheld the award. Id exception because we have previously upheld the award of attorney’s fees in

any other matter relating to any term of this decree and any amendment

but does not apply when two parties have never been married. The mother, 136 N.H. 350, 353 (1992). Id. at 290. to award attorney’s fees when the parties are, or previously have been, married,

In Hampers omitted; alteration in original).

event of an appeal, and all “reasonable attorney’s fees . . . for any proceeding or fees incurred in the divorce proceedings, all attorney’s fees incurred in the 278. The decree also ordered the husband to pay all of the wife’s attorney’s 277-78. The court entered a final divorce decree dividing the assets. Id In addition to the Harkeem. at cross-filed petitions for divorce and the court granted the wife’s petition. Id. at The father argues that the divorce exception only permits the trial court almost four years and had a child together. Id. at 277. The husband and wife divorce exception. Id. at 290-92. The parties in Hampers were married for

, we upheld an award of attorney’s fees pursuant to the one party and ability to pay on the part of the other.” Indorf

restraint” and the award must be based upon a finding of “need on the part of award.

vexatious, wanton or oppressive conduct.”).

(quotations and brackets omitted).

awarded absent bad faith or conduct that is vexatious, wanton or oppressive. attorney’s fees pursuant to this exception, trial courts must use “reasonable N.H. 45, 47 (1989); Salito v. Salito, 107 N.H. 77, 77-78 (1966). In awarding DePalantino v. DePalantino, 139 N.H. 522, 526 (1995); Indorf v. Indorf, 132 exception permitting an award of attorney’s fees in divorce cases. See, e.g.,

be supported by a specific finding of bad faith, such as obstinate, unjust, (“[B]efore a Harkeem exception to the general rule may be carved out, it must attorney’s fees. See Pugliese v. Town of Northwood, 119 N.H. 743, 752 (1979)

specifically transferred the question of whether attorney’s fees could be Further, the trial court made no mention of the father’s conduct, and makes other specific findings consistent with the Harkeem

p. 10 authority to order fees if it finds that the father has acted in bad faith, or

mother further argues, and we agree, that the family division does have January 23, 2011 order awarding attorney’s fees is reversed. However, the cover parenting actions between unmarried parties. Accordingly, the court’s

We construe the divorce exception narrowly and decline to extend it to

and the proceedings during the divorce action. does not alter the fact that the award was based upon the once-valid marriage

attorney’s fees applied to future actions between two formerly married parties

against a petition for divorce. See

related issues that might arise in the future. Merely because the award of extended only to future actions relating to the decree, including any childfrom a divorce petition. The award was made as part of the divorce decree, and

established to protect both parties’ rights to access to the courts and defend and support case between unmarried parties. The divorce exception was We have never before applied the divorce exception to a child custody

marriage. However, the court’s authority to make such an award originated

in Hampers The mother argues that because the award of prospective attorney’s fees

Massachusetts Continuing Legal Education: A Practical Guide to Divorce in considered in awarding her alimony.” (quotation omitted)); C. S. Garvey,

attorney’s fees against the ultimate property distribution. Cf attorney’s fees in divorce cases is the potential ability of the court to offset the the divorce].” (quotation omitted)). However, the theoretical basis for awarding and the divorce was final, an award of fees is not dependent upon a valid

granted attorney’s fees to the ex-wife after the marriage was over

award, but also held that the court must comply with the Gosselin the trial court will act against your client’s property division.”) New Hampshire, § 5.5.6 (2009) (“More often than not, any advance granted by

were never married. We disagree. 42 N.H. 478, 479 (1861) (“If the wife . . . prevails, her expenses are usually should be extended to cover parenting proceedings between two parties who any future proceedings between two formerly married parties, the exception. Morrison v. Holt,

Here, the mother argues that because in Hampers been ordered to be paid to the wife to enable her to make her defense [against

division, as well as any attorney’s fees incurred in the future, we upheld the

not subject to the Gosselin

divorce exception, we upheld an order awarding prospective attorney’s fees for

requirements. Id. at 291.

respect to the fees already incurred and not awarded as part of the property

husband, were actually part of the final property distribution and, therefore, incurred by the wife during the divorce proceedings, and already paid by the p. 11 11

Eisenstadt v. Baird Reversed and remanded

therefore, decline to address it. In the Matter of Martel & Martel interests.”). We find this argument to be inadequately developed and, Amendment if they are not substantially related to permissible state

DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

afforded under the New Hampshire and the United States Constitutions.. party who never married to recover attorney’s fees violates the equal protection rule permitting a married party to recover attorney’s fees while not permitting a 64 (2008).

(“[C]lassifications based on illegitimacy are . . . invalid under the Fourteenth under [the law].”); see also Lalli v. Lalli, 439 U.S. 259, 265 (1978) explains the different treatment accorded married and unmarried persons determination . . . is whether there is some ground of difference that rationally

Finally, the mother makes a single-sentence argument in her brief that a