In re Routhier

175 N.H. 6

280 A.3d 260

In the MATTER OF Matthew ROUTHIER and Kelly Routhier

Nos. 2021-0032

2021-0036

Supreme Court of New Hampshire.

Submitted: January 13, 2022

Opinion Issued: February 15, 2022

Matthew Routhier, self-represented party, by brief.

Marshall Law Office PLLC, of East Kingston (Keri J. Marshall on the brief), for the respondent.

Cullen Collimore PLLC, of Nashua (Kevin G. Collimore ), for intervenor Elliot Health Systems, filed no brief.

DONOVAN, J.

The respondent, Kelly Routhier (wife), appeals a final decree of the Circuit Court (Sadler, J.) in her divorce from the petitioner, Matthew Routhier (husband). The wife argues that the circuit court erred by: (1) concluding that it lacked jurisdiction to divide the husband's interest in real property that he owned jointly with his parents; (2) deviating from the child support guidelines without providing adequate justification; (3) denying her request for alimony without providing adequate justification; and (4) declining to rule on her proposed findings of fact and rulings of law. The husband cross-appeals the final divorce decree as well as the circuit court's final parenting plan. He argues that the circuit court erred by: (1) ordering the parties’ child to attend public school in the district serving the wife's residence; (2) improperly distributing the parties’ firearms; (3) preventing one of his witnesses from testifying at the final hearing; and (4) barring the court-appointed guardian ad litem from attending part of the final hearing. We affirm in part, vacate in part, and remand.

I. Facts

The following facts are supported by the record or are otherwise undisputed. Additional facts are drawn from the record as necessary to address specific issues raised by the parties. The parties met in 2003. In 2011, they engaged to marry. Shortly thereafter, the husband and his parents acquired a piece of property in Dunbarton (Dunbarton property). The husband intended to build a house on the property for himself and the wife, as well as an in-law apartment for his parents. The husband's parents financed the purchase by securing a home equity line of credit (HELOC) on their house in Manchester. Neither the husband nor the wife contributed any money toward the purchase. The deed to the property listed the husband and both of his parents — but not the wife — as joint tenants with rights of survivorship.

In 2013, the parties married. In 2015, their only child was born. In or about May 2018, the parties separated. Following the separation, the wife and the child moved into the wife's parents’ house in Hampstead, and the husband moved into his parents’ house in Manchester. As of the final hearing, neither party had relocated.

In July 2018, the parties filed for divorce. In September 2018, the husband filed an ex parte motion requesting joint decision-making authority and increased parenting time with the child, among other things. Following a hearing, the court awarded joint decision-making authority and ordered the child to reside primarily with the wife. The court further determined that the husband was entitled to spend one weeknight and every other weekend with the child. In January 2019, following a hearing, the court issued a temporary order establishing the same parenting schedule with "a slight modification," denying the wife's request for temporary alimony, and ordering the husband to pay $421 biweekly in child support.

Between June 2019 and September 2020, the court held a final hearing, which consisted of five days of testimony. During that time, the husband filed three emergency motions requesting expedited hearings to address the parenting schedule, the parties’ parenting responsibilities, and the child's schooling. The husband alleged, among other things, that the wife violated the temporary order by attempting to enroll the child in school without consulting him and by attempting to interfere with his parenting time. He requested, among other things, increased residential parenting time and permission to enroll the child in school in Manchester. The court denied all three motions, reserving the issues raised in the motions for the final hearing.

At the final hearing, a court-appointed guardian ad litem (GAL) testified about the parties’ struggles with co-parenting and their inability to agree upon where the child should attend school. The wife preferred the public school serving her residence in Hampstead, while the husband preferred a private Montessori school in Manchester. The GAL testified that, although she had no concerns about the Hampstead school system, she recommended against the child attending school there, in part because the wife's family had multiple connections to the Hampstead school system. The GAL explained that she believed the wife and her family were unsupportive of the husband's relationship with the child, and, for that reason, she was concerned that the wife's family's connections to the Hampstead school system would undermine the husband's role as a parent. The GAL also recommended splitting parenting time equally between the parties.

The court also heard testimony about the parties’ financial circumstances. At the time of the hearing, the husband was employed full time as a landscape architect, earning approximately $5,440 per month. The wife was working approximately twenty-five to thirty hours per week as a pharmacy technician, earning about $2,700 to $2,900 per month. The wife testified that, due to financial constraints caused by the COVID-19 pandemic, her employer had no full-time positions available, and that she would likely earn less money if she found employment elsewhere. Based upon the parties’ income disparity, the wife requested both child support and alimony.

In November 2020, the court issued the final divorce decree and parenting schedule. The court awarded the parties joint decision-making authority and approximately equal parenting time, and ordered the child to attend the public school serving the wife's residence in Hampstead. The court also ordered the husband to pay $200 biweekly in child support — a downward deviation from the $412 figure set forth by the child support guidelines. In addition, the court denied the wife's alimony request.

In dividing the parties’ property, the court excluded the Dunbarton property from the marital estate. Citing the husband's parents’ ownership interest, the court concluded that "the Family Division does not have jurisdiction to determine ownership interest in property if there is a third party claim." As relevant here, the court also divided two of the parties’ firearms, awarding the lower-priced firearm to the wife and the more expensive firearm to the husband, and ordering the husband to pay the wife for the difference in value between the two firearms. Both parties filed motions for reconsideration. Aside from correcting minor errors in the final decree and parenting schedule, the court denied the motions. These appeals followed.

II. Respondent's Appeal

The wife argues that the court erred as a matter of law by concluding that it lacked jurisdiction to divide the husband's interest in the Dunbarton property. Whether the circuit court has subject matter jurisdiction is a matter of statutory interpretation. Rogers v. Rogers, 171 N.H. 738, 742-43, 203 A.3d 85 (2019). Statutory interpretation presents a question of law, which we review de novo. Id. at 743, 203 A.3d 85. When interpreting a statute, we are the final arbiter of the legislature's intent as expressed by the words of the statute considered as a whole. Id. We first look to the statutory language, and whenever possible construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written, and we will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. When the statute's language is unambiguous, we do not look beyond it for further indications of legislative intent. Id.

The circuit court has exclusive jurisdiction over divorce proceedings. See RSA 490-D:2, I (2014) (providing the former family division exclusive jurisdiction over matters involving "[p]etitions for divorce"); RSA 490-F:3 (Supp. 2021) (granting the circuit court jurisdiction that was previously conferred upon the family division). In divorce proceedings, the circuit court is responsible for equitably dividing the parties’ marital property. See RSA 458:16-a (Supp. 2021). When doing so, the court employs a two-step analysis. In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 16, 918 A.2d 1 (2007). First, the court determines, as a matter of law, which assets constitute marital property under RSA 458:16-a, I. Id. Then, the court exercises its discretion to equitably distribute those assets pursuant to RSA 458:16-a, II. Id. The circuit court's determination as to whether certain assets constitute marital property presents a question of law, which we review de novo. Id.

Pursuant to RSA 458:16-a, I, marital property includes "all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties." RSA 458:16-a, I. The statute makes no distinction between property brought to the marriage by the parties and that acquired during marriage, nor does it exclude property given to one spouse during the course of the marriage. In the Matter of Sarvela & Sarvela, 154 N.H. 426, 431, 910 A.2d 1214 (2006). Regardless of the source, all property owned by each spouse at the time of divorce is marital property. Id. ; see RSA 458:16-a, I. While the court has discretion to consider when and by whom property was acquired in distributing that property, the relevant statutory scheme does not classify property based upon when or by whom it was acquired, but rather assumes that all property is susceptible to division. Sarvela, 154 N.H. at...