In re Lundquist

168 N.H. 629

134 A.3d 951

PETITION OF Pamela LUNDQUIST and Robert Lundquist

No. 2015–0103

Supreme Court of New Hampshire.

Argued: November 10, 2015

Opinion Issued: March 8, 2016

Law Offices of Pamela J. Khoury, of Salem (Pamela J. Khoury on the brief and orally), for the petitioners.

Law Offices of Lydon & Richards, P.C., of Nashua (Kalie L. Lydon on the brief and orally), for the respondent.

HICKS, J.

The petitioners, Pamela and Robert Lundquist, appeal an order of the Circuit Court (Introcaso, J.) approving the Judicial Referee's (Love, M.) recommendation that their petition for visitation with their grandchildren be dismissed for lack of standing. See RSA 461–A:13 (Supp.2015). We reverse.

The relevant facts follow. The petitioners are the parents of the respondent, and the natural grandparents of the respondent's three minor children. The respondent's husband, and natural father of the minor children, died in August 2010. In June 2014, the petitioners filed a petition for grandparent visitation in the trial court. The respondent filed a motion to dismiss, arguing that the statute "contemplates grandparent visitation rights when a child's nuclear family is absent due to ‘divorce, death, relinquishment or termination of parental rights, or other cause,’ " but that "[t]he nuclear family here is intact" because "[t]he Mother is entirely capable of raising her three boys and has done so." The respondent asserted that "[t]he Paternal grandparents may have standing since the death of their son in 2010 but maternal grandparents have no standing to bring forth this petition." The petitioners objected, arguing, among other things, that they "have stated a claim for relief based upon the death of Respondent's husband as well as ‘other cause.’ "

After a hearing, the trial court granted the motion to dismiss, concluding that it "agrees with the position of the respondent." The court reasoned that "[t]he statute grants grandparents standing to seek visitation only when the grandchild's family structure is threatened by one of the triggering events under the statute. The threat to their relationship in this case does not come from the death of the children's father, but from mother's own determination of what is in her children's best interests vis a vis her parents." The trial court subsequently denied the petitioners' motion for reconsideration, and this appeal followed.

On appeal, the petitioners argue that the trial court erred in granting the motion to dismiss because "the Grandparents are the natural grandparents of the minor children and the nuclear family is not intact. Although the decedent is the Petitioner[s'] son-in-law, his death has caused the absence of a nuclear family." They assert that "the statute does not distinguish or require that only the decedent's parents in the event of the death of a parent may petition." The respondent argues that the trial court correctly granted the motion to dismiss because it "found that a nuclear family was present, therefore Petitioners' burden to prove the existence of a prerequisite condition (as referred to by the trial court as standing) was not met." (Bolding omitted.)

"Usually, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the petitioners' pleadings are sufficient to state a basis upon which relief may be granted." In the Matter of P.B. & T.W., 167 N.H. 627, 629, 117 A.3d 711 (2015). "To make this determination, the court would accept all facts pleaded by the petitioners to be true and construe all reasonable inferences in the light most favorable to the petitioners." Id. "When, however, the motion to dismiss does not contest the sufficiency of the petitioners' legal claim, but instead challenges their standing to sue, the trial court must look beyond the allegations and determine, based upon the facts, whether the petitioners have sufficiently demonstrated a right to claim relief." Id. "Because the underlying facts are not in dispute, we review the trial court's decision de novo. " Id.

Resolving the issues on appeal requires that we engage in statutory interpretation. "Statutory interpretation is a question of law, which we review de novo ." Appeal of Local Gov't Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. In re Estate of McCarty, 166 N.H. 548, 550, 100 A.3d 523 (2014). We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id.

RSA 461–A:13 provides in pertinent part:

I. Grandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.

Under this provision, "standing to seek visitation vests in a grandparent, whether natural or adoptive, whenever a grandchild's family is the subject of one of the enumerated conditions listed at the end of the second sentence unless the grandparent's access to the grandchild has been earlier, or contemporaneously, restricted." In the Matter of P.B., 167 N.H. at 630, 117 A.3d 711 (quotation omitted); see O'Brien v. O'Brien, 141 N.H. 435, 437, 684 A.2d 1352 (1996) (first sentence of the statute is triggered only when one of the conditions listed at the end of the second sentence has come to pass).

"When the legislature has clearly delineated the class that can petition to enforce a statutory scheme, we will implement that determination meticulously."...