2019-0027, Amanda Colburn v. Nicholas Saykaly & a.

The additional defendant named in the trial court did not participate on appeal. 1

Goffstown Family Division has exclusive jurisdiction over the home until either is n ot a “tenant” of the plaintiff. H e contends that the 9th Circuit Court – subject to the parties’ ongoing divorce proceeding, and because the defendant landlord - tenant action becaus e the home in question was marit al property that the trial court lacked subject matter jurisdiction to hear the plaintiff’s p ossession to the plaintiff, Amanda Colburn. On appeal, the defendant argues 9th Ci rcuit Court - Goffstown District Division (Gorman, J.) i ssuing a w rit of BASSETT, J. The defendant, Nicholas Saykaly, appeals an order of the

Sequeira on the brief, and Mr. Winters orally), for the defendant. Cohen and Winters, PLLC, of Concord (Andrew S. Winters and Elroy F.

James B. Kazan on the brief, and Mr. Shaughnessy orally), for the plaintiff. S hau ghnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy and

No. 2019 - 0027 9th Circuit C ourt - Goffstown District Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

the court found for the plaintiff. T he court also stated that it s order was issued in the home could not be adjudicated in the divorce proceeding. Ultimately, The trial court also observed that the right of the defendant’s brother to reside jurisdiction to adjudicate the defendant’s right to reside at the original home. concern that, apart from the ongoing divorce proceeding, it might lack During the merits hearing in the district division, t he court expressed

of marital property. possession of the original home, and did not impact the equitable distribution district division had jurisdiction because the eviction case concerned only was the subject of a pending divorce action. The plaintiff countered that the because the dispute was between spouses and involved marital property that argued that, inter alia, the district division lacked jurisdiction to hear the case pres ented by the contaminated water satisfied that standard. T he defendant argue d that, even if she needed to show good cause, the health hazard ( p. 2 2007), she could lawfully evict the occupants without good cause. She further because the original home is “[n]o nrestricted property,” RSA 540: 1 - a, I (a) At the merits hearing in the district division, the plaintiff argued that,

presided in the eviction c ase. p ossession. Coincidentally, t he judge presiding in the divorce action also plaintiff commenced an action in the district division seeking a w ri t of brother with an ev iction notice. W hen they did not vacate the home, the could replace the well. Accordingly, the plaintiff served the def enda nt and his occupants was to evict them and take the home off the rental market until she bacteria. The plaintiff determined that the best way to avoid harm to the servicing the original home was contaminated with E. co li and coliform Shortly there after, the plaintiff discovered that the water from the well

from, and manage, the original home. original home. The court also decreed that the plaintiff would receive all rents marital home, and permitting the defendant to reside with his brother at the in the divorce case providing that the plaintiff would continue to reside in the division. On August 13, p. 2 2018, the court issued a temporary order and decree In March 2018, the plaintiff filed a petition f or divorce in the family

The parties agree that both homes a re marital property. the move, the parties rented the ir original home to the defendant’s brother. home, which is owned solely by the defendant (the marital home). Following plaintiff in Manchester (the original home). The parties later move d to a nearby Between p. 2 2009 and 2013, t he parties lived in a single - family home owned by the The following facts are supported by the record or undisputed on appeal.

jurisdiction to hear and decide this case, w e affirm. jurisdiction over the home. Because we conclude that the district division has the divorce proceeding is finalized or the family division relinquishes p. 3 3

does not grant the family division “exclusive jurisdiction” over the assets owned We disagree with the premise of the defendant’s argument. RSA 490 - D:2

marital property vis - à - vis the spouses. divorce petition is filed, the family division has exclusive jur isdiction over owned by either spouse. He asks us to adopt a bright - line rule that, once a family division exclusive jurisdiction and “inherent” authority over all assets T he defendant argues that RSA 490 - D:2 and RSA 458:16 - a, I, II grant the

or both parties.” RSA 458:16 - a, I, II (2018). either or both parties, whether title to the property is held in the name of either “all tangible and intangible property and assets, real or personal, belonging to may order equitable division of property between the parties,” which includes RSA 490 - D:2, I (2010). “When a dissolution of a marriage is decreed, the court marriage, alimony, custody of children, support, and to establish paternity.” division” has exclusive jurisdiction over “[p]etitions for divorce, nulli ty of RSA 490 - D:2 provides, in pertinent part, that “the judicial branch family

the plaintiff’s tenant. We address each argument in turn. defendant argues that the district d ivision lack ed jurisdiction because he is not division has exclusive jurisdiction over the original home. Alternatively, the hear the eviction case because, by virtue of the ongoing divorce case, the family T he defendant first argues that the district division lack ed jurisdiction to

context o f the overall statutory scheme. Id. Id. (quotation omitted). We interpret statutes not in isolation, but in the the legislation nor add words which the lawmakers did not see fit to include.” legislative intent. Id. at 195. “Courts can neither ignore the plain language of and unambiguous, we need not look beyond it for further indications of meanings to words used. Id. at 194 - 95. When a statute’s language is plain found in the statute and, where possib le, we ascribe the plain and o rdinary When undertaking statutory interpretation, we first examine the language to answer the question presented by this appeal. See Maldini, 168 N.H. at 194. by statute, s ee RSA 490 - F:2, : p. 3 3 (Supp. 2019), we look to the relevant statutes Because the circuit court, its divisions, and its jurisdiction, are created

law, and, therefore, our review is de novo. Id. whether the district division ha d jurisdiction in this case presents a question of Maldini v. Maldini, 168 N.H. 191, 194 (2015). The ult imate determination as to subject matter jurisdiction cannot be conferred where it does not already exist. hear a case concerning subject matters over which it lacks jurisdiction, and matter jurisdiction over the evicti on action. A court does not have power to The sole question before us is whether the district division had subject

defendant in the ongoing divorce proceeding. This appeal followed. without prejudice to the rights and responsibilities of the plaintiff and p. 4 4

so by judicial fiat. has not imposed such a requirement in RSA chapter p. 4 490 - F, and we will n ot do family division ha s exercised jurisdiction over such property. The legislature jurisdiction over marital property to the exclusion of all other courts once the marital property. The proposed rule would mean that the family division has rule in cases in which the family division has exercised jurisdiction over We similarly decline the defendant’s invitation to adopt a “first - in - time”

F:2, :3, :6, VI, VII. divisions of the circuit court as justice and efficiency require. See RSA p. 4 490 - The statutory scheme allows judges to be certified in, and move between, all that would undermine the flexible design of the circuit court and its divisions. T he defendant’s proposed bright - line rule would create a rigid barrier

RSA p. 4 490 - F:6, VII (Supp. 2019). certified in all divisions of the circuit court” pursuant to supreme court rules. efficiency require.” RSA 490 - F:6, VI, VIII (Supp. 2 019). “Judges may be within the court “at the discretion of the administrative judge,” as “justice and RSA 490 - F:18 (Supp. 2019). Circuit court judges are assigned to a division where the circuit court has concu rrent jurisdiction with the superior court.” jurisdiction of a subject matter and to the superior court and circuit court deemed to be to the New Hampshire circuit court where it has exclusive cou rts or to the judicial branch family division,” those references “shall be A lthough there remain statutory references “to the probate or district

circuit court.” RSA p. 4 490 - F:2. justice or efficiency require[ ] in the discretion of the administrative judge of the has expressly per mitted “the reassignment of cases within the circuit court as within the subject matter jurisdiction of the circuit court,” and the legislature 490 - F:3. “Each circuit court location . . . [has] the authority to hear all cases Wa rrant for Records of AT & T, 170 N.H. at 113 (quotation omitted); see RSA a probate division, a district division, and a family division.” In re Search courts upon the circuit court, and divided the circuit court into three divisions: 2011, 88:1. It conferred the “jurisdiction, powers, and duties of th e se former Search Warrant for Records of AT & T, 170 N.H. 111, 113 (2017); see Laws and district courts and the former judicial branch family division.” In re legislature established the circuit court in 2011 by merging the former probate would curb the flexibility afforded to the c ircuit court by the legislature. “The Moreover, we decline to construe RSA chapter 490 - F in a fashion that

will not read one into the statutory scheme. See Maldini, 168 N.H. at 19 p. 5 5. has not inclu ded his proposed bright - line rule in RSA chapter p. 4 490 - F, and we divorce proceeding itself. Even if the defendant were correct, the legislature its terms, the statute merely grants jurisdiction to the family division over the by divorcing spouses, either individually or collectively. Rather, according to 5

exercise its discretion, deferring to other divisions if and when appropriate. over parties or property, each division will assess the circumstances and wisely confident that, when two or more divisions of the circui t court have jurisdiction flexibility afforded to the circuit court divisions by the legislature. We are in its joints to function properly, rather than a rigid rul e that reduce s the (1931)). Here, the legislative scheme governing the circuit court requires play N.H. 387, 389 (1966) (quoting Bain Peanut Co. v. Pinson, 282 U.S. 499, p. 5 501 work if it were not allo wed a little play in its joints.” See Rafferty v. State, 107 As Justice Holmes o bserved, “the machinery of government would not

his eviction. free to seek a modification of the family division’s temporary order in light of of the parties in the divorce proceeding. In addition, the defendant remains provided that it was issued without prejudice to the rights and responsibilities Finally, i t is important to note that the district division’s order explicitly

of Croteau v. Croteau, 143 N.H. 177, 180 (1998). ownership whose attributes are n ot recognized in New Hampshire.” S ee Estate a theory of property ownership — tenancy by the entirety — which is “a form of the case turn up on the specific language of a New York statute, but it involved Giuffrida, 649 N.Y.S.2d at 776. However, Giuffrida is inapposite. Not only did premises is not subject to the jurisdiction of the court in an eviction action. permitted to reside at a premises by one with a right to possession of the Giuffrida v. Giuffrida, 649 N.Y.S.2d 773 (N.Y. Civ. Ct. 1996), that a “licensee” The defendant also urges us to adopt the reasoning of the trial court in

defendant was an occupant rather than a tenant. without jurisdiction to adjudicate the eviction action merely because the person in possession.” RSA p. 5 540:12 (2007). Thus, the district division was not possession may be recovered “from a lessee, occupant, mortgagor, or other governing residential evictions in New Hampshire, expressly provides that RSA chapter 540 - A is not implicated. However, RSA chapter 540, t he chapter There is no alleg ation of a “prohibited practice” in this case, and, t herefore, en gages in a “prohibited practice.” S ee RSA 540 - A:2 (2007),:3 (Supp. 2019). governs proceedings and penalties only in cases in which a landlord or tenant pursuant to RSA 540 - A:1 is accurate, s ee RSA 540 - A:1, II, RSA chapter 540 - A disagree. Although t he defendant ’s assertion that he is not a “tenant” plaintiff, the district division had no jurisdiction over the eviction case. We RSA 540 - A:1, II, and, therefore, lacks a landlord - tenant relationship with the T he defendant next argues that, because he is not a “tenant” pursuant to

legislature when it created the circuit court in 2011. However, Sullivan is inapposite and sheds no light on the intent of the opinion issued by the Eighth Circuit Court of Appeals more than a century ago. defendant relies heavily upon Sullivan v. Algrem, 1 p. 6 60 F. 366 (8th Cir. 1908), an In support of his “first - in - time” theory of exclusive jurisdiction, the 6

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

division has jurisdiction to hear and decide the eviction action. That is exactly what happened here. Accordingly, we hold that the district