2013-0434, Petition of Gregory Malisos

specified amount to the cost of his continued participation in the LGC Health entitled to a medical subsidy whereby the retirement system contributes a plan (LGC Health Trust). A s part of his retirement benefits, the petitioner is Town’s participation in the Local Government Center’s Health Trust insurance petitioner continued his and his wife’s health insurance coverage through the a po lice officer with the Town of Windham (Town). When he retired, the July 1, 2008, after t wenty - f our years and eight months of creditable service as The record supports the following facts. The petitioner retired effective

medical subsidy benefit set forth in RSA 100 - A:52, I (2013). We reverse. System (NHRS), that his legally separated spouse d id not qualify for the the respondent, the board of t rustees (board) of the New Hampshire Retirement BASSETT, J. The petitioner, Gregory Malisos, seeks review of a ruling of

respondent. Foley Law Office, of Concord (Peter T. Foley on the brief), for the

Gregory Malisos, self - represented party, by brief.

N o. 2013 - 434 Original

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

capriciously.” Id. (quotation omitted). made, or abused it s discretion or acted arbitrarily, unreasonably, or law, whereby it arrived at a conclusion which cannot legally or reasonably be board acted illegally with respect to jurisdiction, authority or observance of the (quotation and brackets omitted). “Our standard of review is whether the the NHRS.” Petition of State Employees’ Assoc., 161 N.H. 476, 478 ( p. 2 201 1) of certiorari is the sole remedy available to a party aggrieved by a decision of “Because RSA chapter 100 - A does not provide for judicial review, a writ

the petitioner’s motion for reconsideration be d enied. This appeal followed. on February 1 p. 2 2, 2013, and subsequently approved her recommendation that separated wife.” The board approved the hearing examiner’s recommendation free to remarry. He c eased to be eligible for the medical subsidy for his legally action of law the Petitioner no longer had a ‘spouse’ even though he was not 10/1/09, the first of the month following the decree of legal separation, by as if it were a divorce.” The hearings examiner concluded that “[b]eginning on I (2004), the NHRS was required “to treat the Petitioner’s legal separation. . . legal separation “shall have in all respects the effect of a divorce,” RSA 458:26, 458 (Annulment, Divorce an d Separation), which states in s ection 26, I, that a on 9/ 17 / 09.” T he hearings examiner reason ed that pursuant to RSA c hapter entitled to the medical subsidy for his spouse after they were legally separated the board uphold the determination by NHRS staff that the petitioner “was not Ret 204.08. On December 11, 2012, t he hearings examiner recommended that submit the case for a non - evidentiary adjudication. See N.H. Admin. R ule s, April 18 notice, and the parties agreed to file a stipulation of facts and to On June 1, 2011, t he petitioner filed an administrative appeal of the

petitioner’s medical subsidy benefit was reduced to the “one - person” amount. adjustment to collect the overpayment.” Beginning in April p. 2 2011, the petitioner’s behalf totaling $7,135. 64, it would “process [ ] a future retroactive NHRS had made medical subsidy overpayments to the LGC He a l th Trust on the subsidy benefit.” The letter also informed the petitioner that because the Consequently, a legally separated spouse is not entitled to the NHRS medical Hampshire shall have in all r espects the affect [sic] of a divorce. . . . determined by NHRS counsel that a legal separation in the State of New the date of the decree of legal separation. The letter stated: “I t has been policy, he was no longer eligible to receive the medical subsidy for his wife as of dated April 18, 2011, the NHRS notified the petitioner that pursuant to NHRS received notice of the petitioner’s legal separation in March 2011. By letter “Final Decree of Legal Separation” issued by the circuit court. The NHRS On September 17, 2009, the petitioner and his wif e separated under a

beginning on July 1, p. 2 2008. t he NHRS provided the petitioner with a “two - person” medical subsidy medical subsidy “until death or remarriage.” RSA 100 - A:52, I(g). Accordingly, Trust. See RSA 100 - A:52 (201 p. 3 3). In addition, his “spouse” is entitled to the 3

argues that because he and his wife h ave not dissolved the bonds of Third New International Dictionary 2208 (unabridged ed. 2002). The petitioner woman joined in wedlock: married person: HUSBAND, WIFE.” Webster’s Webster’s Third New International Dictionary defines “spouse” as “a man or married person.” Black’s Law Dictionary 1621 (10 th e d. 20 14). Likewise, Dictionary defines “spouse” a s “[o] ne’s hus band or wife by lawful marriage; a Appeal of Town of Nottingham, 15 p. 3 3 N.H. 539, 553 (2006). Black’s Law statute. Th erefore, we look to the plain and ordinary meaning of the term. See As the board correctly notes, the term “spouse” is not defined in the

RSA 100 - A:52, I(g).

remarriage.

. . . .

retiree ’s former employer . . . , for the following per sons: employer - sponsored plan provided for active employees of a surgical care and other medical and surgical benefits, in the for permanent group hospitalization, hospital medical care, I. The New Hampshire retirement system shall pay the cost

benefits from the retirement system. Th e statute provides in pertinent part: which identifies those individuals who are entitled to receive certain medical T he starting point in resolving the question before us is RSA 100 - A:52, I,

intent. See Appeal of Stewart, 164 N.H. 772, 775 (201 p. 3 3). need not look beyond the statute itself for further indications of legislative to inclu de. Id. When the language of a statute is plain and unambiguous, we legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written, and will not consider what the that language according to its plain and ordinary meaning. Id. We interpret Id. We first look to the language of the statute itself, and, if possible, construe the legislature as expressed in the words of the statute considered as a whole. In matters of statutory interpretation, we are the final arbiters of the intent of See State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 7 30, 738 (2011). Statutory interpretation is a question of law, which we review de novo.

principles of statutory interpretation, we disagree with the board. medical benefit eligibi lity requirements of RSA 100 - A:52, I. Guided by that it properly applied the plain language of RSA p. 4 458:26, I, in interpreting the 100 - A:52, I, the board impermissibly rewrote the statute. The board argues that, because the legislature “did not choose to modify the term spouse” in RSA conflicts with the clear and unambiguous language of RSA 100 - A:52, I, and T he petitioner argues that the board’s interpretation of RSA 458:26, I, 4

DAL I ANIS, C. J., and HICKS, CONBOY, and L YNN, JJ., concurred.

Employees’ Assoc., 161 N.H. at p. 4 478. Accordingly, we reverse. conclude that the board erred as a matter of law. See Petition of State from retirement benefits a legally separated spouse, it c ould have said so. We 153 N. H. at 546 - 47. Had the legislature intended the term “spo use” to exclude the legislature did not see fit to include. See Appeal of Town of Nottingham, conclude otherwise would add language to the retirement benefits statute that for the medical subsidy benefit, until that in dividual ’s death or remarriage. To legally separated from a retiree, qualify as a s pouse for purposes of eligibility 100 - A:52 to the contrary, the legislature int ended that a n individual, although Accordingly, w e hold that in the absence of any limiting language in RSA

divorce only to the extent provided by statute). p. 4 458. See Desaulni er, 97 N.H. at 172 (a legal separation has the effect of a responsibilities of parties in proceedings commenced pursuant to RSA chapter all respects the effect of a divorce” is limited to establi shing the rights and language in RSA chapter 458 mandating tha t a legal separation “shall have in separation that have been established by statute, we conclude that the wife by mutual agreement”). Given the distinctions between divorce and legal (“JUDICIAL SEPARATION” is “cessation of cohabitation between husband and married”); see also Webster’s Third New International Dictionary, supra at 2070 whe reby a husband and wife live apart from each other while remaining Law Dictionary, supra at 1572 (“s eparation” is defined as “[a]n arrangement parties remain legally married.” Douglas, supra § 11.05, at 339; see Black’s separation has in all respects the effect of a divorce, it is not a divorce, and the 458:2 8 (2004); Desaulnier v. Desaulnier, 97 N.H. 171, 172 (1951). “While the the superior court for the county in which the separation was decreed, s e e RSA relations after filing a written declaration of such resumption with the clerk of RSA 458:27 (Supp. 2013); and (3) the parties may at any time resume marital person, see RSA 458:26 (2004); (2) the name of the wife cannot be changed, see differs from a divorce in that: (1) the parties are not free to marry any third Legal Separation & Maintenanc e § 11.01, at 335 (2002). A legal separation division for.. . legal separation.” 3 C. Douglas, New Hampshire Practice: separately without filing for divorce may petition the superior court or family “Parties who are married but who decide for justifiable cause to live

spouses are not eligible for the medical subsidy under RSA 100 - A:52.” makes legally separated spouses equivalent to divorced spouses, “and divorced matrimony, they are still married. The board a ssert s that RSA p. 4 458:26, I,