2022-0268, David Loik v. Gloria Loik

transfer the petition to the circuit court. had subject matter jurisdiction, w e vacate and direct the superior court to that, under the applicable statute, the circuit court and not the superior court court had subject matter jurisdiction over this matter. Because we conclude real estate. At issue in this appeal is whether the superior court or the circuit Superior Court (Ruoff, J.) dismissing h is petition for the partition and sale of M AC DONALD, C.J. The plaintiff, David Loik, appeals an order of the

memorandum of law and orally), for the defendant. L a w Office of Pamela J. Khoury, of Salem (Pamela J. Khoury on the

plaintiff. and Nancy A. Morency on the brief, and John F. Gallant orally), for the Gallant & Ervin, LLC, of Chelmsford, Massach u s etts (John F. Gallant

No. 2022 - 0268 Roc kingham

https://www.courts.nh.gov/our - courts/supreme - court. 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 email at the following address: reporter@courts.state.nh.u s. 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

(quotation omitted). “The ultimate determination as to whether the [superior] does not already exist.” Maldini v. Maldini, 168 N.H. 191, 194 ( p. 2 2015) raised at any time in the proceedings because it cannot be conferred where it jurisdiction to hear this case. “The issue of subject matter jurisdiction may be however, with the defendant’s argument that the super ior court lacked concluding that he had waived his right to seek partition. We must begin, On appeal, the plaintiff argues that the superior court erred in

II. Analysis

agreed to sell it, the plaintiff waived his right to seek partition. found that, by agreeing to joint ownership of the property unless the parties merits of the defendant’s subject matter jurisdiction argument but, rather, superior court granted the motion. The superior court did not address the court did not have jurisdiction to hear the merits. Following a hea ring, the proceeding” over which the circuit court has exclusive jurisdiction, the superior in the petition “relate to the property settlement of the parties’ divorce to dismiss the petition asserting, among other th ings, that, because the claims it sought both preliminary injunctive relief and partition. The defendant moved petition alleg ed that the defendant was engaging in waste of the property, and Court.” Accordingly, t he plaintiff filed the present petition to partition. The the plaintiff to file a petition to partition the property in “Probate or Superior constitute an impermissible modification of a property division, but directed The circuit court denied the motion to sell on the basis that it would

responsibility to the plaintiff a nd vacate d his obligation to pay child support. modified the parties’ parenting plan to transfer primary residential force the sale of the former marital home. His motion came after the court had In p. 2 2021, the plaintiff moved for the circuit court to modify the divorce decree to

any maintenance and upkeep. mortgage, ta xes and insurance however Gloria shall be responsible for Gloria shall remain in the home. David shall be responsible for the

the sale of the house. agree to sell the home, they shall equally divide any net proceeds from agree to sell it as joint tenants with rights of survivorship. If the parties The parties shall continue to own the property until such time as they

the parties stipulated as follows: by both parties and adopted by the circuit court. R egarding the marital home, Gloria Loik, were div orced by final decree in p. 2 2018. The final decree was drafted The record supports the following facts. The plaintiff and the defendant,

I. Background p. 3 3

petition for partition. We conclude that these post - divorce disputes constitute the parties’ minor children, form at least part of the basis for the plaintiff ’s These disputes, including the change of primary residential respo nsibility as to post - divorce disputes between the parties then pending in the circuit court. and at the time the plaintiff filed his partition action, there were a number of Here, both at the time of the circuit court ’s order on the motion to sell,

(E mphasis added.)

with the court having jurisdiction over the underlying matter. . .. matter in either court, jurisdiction for the related partition action shall lie then located . . . provided, how ever, where there is a related pending the county in which the property or any part of the property lies or is A petition may be filed by such person in the superior or probate court in

follows: 547: p. 3 3, II(e) (Supp. 2022). RSA 547 - C:2 (2019) allocates that jurisdiction as petitions for partition of real estate pursuant to RSA chapter 547 - C. See RSA The superior and circuit courts share concurrent jurisdiction over

547 - C:2, as set forth below, refer s to the circuit court. RSA 490 - F:18 (Supp. 2019)). Thus, the ref erence to the “probate court” in RSA court has concurrent jurisdiction with the superior court. ’” Id. at 166 (quoting subject matter and to the superior court and circuit court where the circuit to the New Hampshire circuit court where it has exclusive jurisdiction of a to the jud icial branch family division,’ those references ‘ shall be deemed to be “Although the re remain statutory references ‘ to the probate or district courts or divisions: a pr obate division, a district division, and a family division. Id. former courts upon the circuit court, and divided the circuit court into three (quotation omitted). It conferred the jurisdiction, powers and duties of these judicial branch family division.” Colburn v. Saykaly, 17 p. 3 3 N.H. 162, 165 (2020) court in 2011 by merging the former probate and district courts and the forme r As we have previously explained, “[t]he legislature established the circuit

isolation, but in the context of the overall statutory scheme. Id. the lawmakers did not see fit to include. Id. We interpret statutes not in can neither ignore the plain language of the legislation nor add words which look beyond it for further indications of legislative intent. Id. at 195. Courts 194 - 95. When a stat ute’s language is plain and unambiguous, we need not possible, we ascribe the plain and ordinary meaning s to words used. Id. at interpretation, we first examine the language found in the statute and, where superior court lacked subject matter jurisdiction. When undertaking statutory We look to the relevant statutes to answer the question whether t he

review.” Id. (quotation omitted). court has jurisdiction in this case is a question of law subject to de novo p. 4 4

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

instruct that it consider the matter in the first instance. direct that, on remand, the petition be transferred to the circuit court, and we superintendence of all courts of inferior jurisdiction,” RSA p. 4 490:4 (2010), we instructions was reasonable. Therefore, pursuant to our “general appropriate forum [in which] to bring an equitable action.” R eli ance on those Petition for Partition with the Probate or Superior Court, which is the home, the circuit court instructed the plaintiff that his “remedy [wa]s to file a We note, however, that in its order declining to require the sale of the

we vacate its decision. superior court lacked subject matter jurisdiction to hear and decide this case, matter jurisdiction over the petition for partition. Consequently, because the Therefore, the circuit court — rather than the superior court — had subject award costs as justice may require” (quotation and ellipses omitted)). modify any order made by it, make such new orders as may be necessary, and that “[a]fter grantin g a divorce, the court retains jurisdiction to revise and subsequent proceedings which arise out of the original cause of action” and that jurisdiction in divorce proceedings is a continuing one with respect to all D aine, 157 N.H. p. 4 426, 427 - 28 (2008) (explaining that “[t]he law is well settled “related pending matter[s]” within the meaning of RSA 547 - C:2. See Daine v.