In the Matter of Emily Sanborn and Timothy E. Sanborn , 176 A.3d 763 ( 2017 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
7th Circuit Court-Rochester Family Division
Nos. 2016-0259
2016-0629
IN THE MATTER OF EMILY SANBORN AND TIMOTHY E. SANBORN
Submitted: June 21, 2017
Opinion Issued: December 8, 2017
Springer Law Office, PLLC, of Portsmouth (Jonathan S. Springer on the
brief), for the petitioner.
Timothy E. Sanborn, self-represented party, by brief.
LYNN, J. In these consolidated appeals, the petitioner, Emily Sanborn,
and the respondent, Timothy E. Sanborn, appeal orders of the Circuit Court
(Foley, J.) ruling upon the respondent’s post-divorce motions. The petitioner
argues that the court erred by ordering that the respondent is entitled to
continuation coverage under the petitioner’s dental insurance plan pursuant to
RSA 415:18, XVI (2015). The respondent cross-appeals, arguing that the court
erred by denying his request for attorney’s fees. We reverse in part and affirm
in part.
The relevant facts are as follows. The parties’ final divorce decree was
issued in 2009. The respondent appealed, and we affirmed the trial court’s
decree in March 2011. Our mandate issued on April 21, 2011. Section 6 of
the final divorce decree provided that “[e]ach party shall be responsible for his
or her own health and dental insurance and his or her own uninsured medical
and dental expenses.”
In December 2012, the respondent moved to amend the divorce decree to
allow him to be put on the petitioner’s dental plan “as a dependent for the 3
year continuation coverage period,” retroactive to April 2011. The petitioner
agreed that the decree should be amended to allow for three years of
continuation of dental insurance coverage for the respondent from April 2011
to April 20, 2014. Subsequently, the Circuit Court (Ashley, J.) issued an order
amending section 6 of the divorce decree, per the parties’ agreement, to read, in
relevant part:
Each party shall be responsible for his or her own health
insurance and his or her own uninsured medical and dental
expenses. Regarding dental insurance, [the respondent] shall be
kept on [the petitioner’s] group dental insurance policy, through
her employment, as a dependent for the three year continuation
coverage period which continuance coverage period will expire on
April 20, 2014. This obligation shall continue only so long as [the
petitioner] is employed at the same employer and the employer
offers the group dental insurance as a benefit.
The petitioner was employed as the plan administrator for Breed’s Hill
Insurance Agency (Breed’s Hill) from September 1, 2006 through March 1,
2014. Through this employment, she received dental insurance from Principal
Insurance Group (Principal). In March 2014, a third-party insurance agency
acquired Breed’s Hill, and Breed’s Hill was thereafter effectively defunct. The
petitioner received the same dental insurance benefits through April 30, 2014.
On May 1, 2014, the petitioner received new insurance coverages through her
employment with the third-party insurance agency, including dental coverage
through Aetna. In April 2015, the petitioner left that employment, and her
dental coverage was no longer effective as of the end of August 2015. The
petitioner started new employment on August 24, 2015, and received dental
insurance through this employment starting October 1, 2015.
At some point in late 2015, the respondent sought a further ruling on
dental insurance coverage. He argued that, pursuant to RSA 415:18, VII-b and
XVI, the petitioner had the responsibility to notify him of the expiration of the
dental insurance coverage. He further contended that he should have been
“offered continuation of coverage” before April 2014. He contended that it was
her responsibility to notify him because he claimed that she was the plan
administrator for Breed’s Hill at the time that his coverage ended. He further
argued that, because he turned 55 during the period of coverage that ended in
April 2014, he was entitled to coverage pursuant to RSA 415:18, XVI(c)(5),
which provides that “[w]hen the . . . divorced spouse . . . is 55 years of age or
older and loses coverage because of the . . . divorce,” coverage shall continue
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under RSA 415:18, XVI “until such time as the spouse becomes eligible for
participation in another employer-based group plan or becomes eligible for
Medicare.”
The petitioner countered that the respondent received all of the coverage
to which he was entitled under RSA 415:18. She further argued that her
employment with Breed’s Hill ended on March 1, 2014, when Breed’s Hill was
acquired by the third-party insurance agency and, therefore, pursuant to the
amended divorce decree, the respondent was no longer entitled to benefits
under her plan because she was no longer employed by the “same employer.”
Nonetheless, she maintained that any burden to notify the respondent prior to
the expiration of coverage in April 2014 was attributable to the carrier,
Principal, and not to her. In addition, she contended that the respondent is
not entitled to coverage under RSA 415:18, XVI(c)(5) because he was not 55 at
the time the divorce decree became final.
Following a hearing on offers of proof presented through counsel, the
trial court ruled in favor of the respondent. The court treated the coverage the
respondent obtained pursuant to the 2013 amendment to the divorce decree as
continuation coverage governed by RSA 415:18, XVI rather than coverage
under RSA 415:18, VII-b (2015). It then ruled that, although both parties’
interpretations of RSA 415:18, XVI(c)(5) appeared to be reasonable, the
respondent’s interpretation “better reflect[ed] legislative intent” and, therefore,
the respondent was eligible for continuation coverage under RSA 415:18,
XVI(c)(5).
Because the respondent was eligible for continuation coverage, the court
found that he was entitled to notification of termination of coverage pursuant
to RSA 415:18, XVI(f)(5). Under RSA 415:18, XVI(f)(5), “[t]he carrier shall notify
the individual of the right to continue coverage within 30 days of receiving
notice from the plan administrator or employer of the loss of coverage.” The
court found that, at the time that the respondent lost coverage in April 2014,
the petitioner “was still the plan administrator” and, thus, she was responsible
for notifying Principal of the respondent’s loss of coverage, which, in turn,
would have triggered Principal’s obligation to notify the respondent of his
eligibility for coverage under RSA 415:18, XVI(c)(5). See RSA 415:18, XVI(e)(1).
The court ordered the petitioner to add the respondent “to her insurance
as a dependent or former spouse, for a period of time long enough to trigger
continuation coverage when she removes him from her group plan as a result
of their divorce.” The court stated that it would “accept proposed orders
amending the [divorce] decree, if necessary, to supply [the respondent] with
coverage for the period when he was without dental insurance.” It further
ordered that “[a]ny unpaid dental care expenses falling within [the period when
the respondent was without dental insurance] should be addressed in the
proposed orders, or will otherwise be the responsibility of the” petitioner. The
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respondent subsequently sought attorney’s fees, which the court declined to
award. This appeal and cross-appeal followed.
We note that the respondent has filed a “supplemental dental appeal
brief” and the petitioner has moved to strike that brief. (Bolding and
capitalization omitted.) Following submission of the case on the briefs, the
respondent filed a separate motion to accept the supplemental brief. We grant
the respondent’s motion to accept and deny the petitioner’s motion to strike;
therefore, we have considered the respondent’s supplemental brief.
I. Petitioner’s Appeal
We first address the petitioner’s appeal. The petitioner argues that the
trial court erred by finding that the respondent was eligible for continued
dental insurance coverage under RSA 415:18, XVI. She contends that “RSA
415:18 provides two terms of dental insurance coverage following a decree of
divorce:” (1) coverage provided for under RSA 415:18, VII-b; and (2) the
“continuation coverage” provided for by RSA 415:18, XVI. She maintains that,
in this case, the respondent was entitled only to continuation coverage under
section XVI, which she asserts he received as a result of the 2013 amendment
to the divorce decree.
Resolution of this issue requires us to engage in statutory interpretation.
The interpretation of a statute is a question of law, which we review de novo.
Zorn v. Demetri, 158 N.H. 437, 438 (2009). “When interpreting a statute, we
first look to the plain meaning of the words used and will consider legislative
history only if the statutory language is ambiguous.” Reid v. N.H. Attorney
Gen., 169 N.H. 509, 522 (2016) (quotation omitted). 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.
Zorn, 158 N.H. at 438.
We begin by examining the coverage the respondent obtained as a result
of the 2013 amendment to the divorce decree. The trial court treated the
coverage arising during this period as continuation coverage governed by RSA
415:18, XVI, rather than RSA 415:18, VII-b (2015), “[b]ecause neither party
[had] explicitly argued that the coverage period retroactive to 2011 and ending
April 20, 2014 was governed by [RSA 415:18,] VII-b, and because the [2013]
amended decree refers to the coverage during this period as ‘continuation
coverage.’” The petitioner contends that this was correct. She maintains that,
pursuant to the language of the original divorce decree, coverage under RSA
415:18, VII-b “never arose.” We agree.
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RSA 415:18, VII-b provides, in relevant part:
Any group accident and health insurance policy covering a
resident of New Hampshire shall contain the following provisions:
(a) Upon a final decree of divorce or legal separation, if one
spouse is a member of a group accident and health insurance
policy, the former spouse who is a family member or eligible
dependent under said policy prior to the date of the decree shall be
and remain eligible for group benefits as a family member or
eligible dependent under said policy, without additional premium
or examination, as if said decree had not been issued. Such
eligibility shall not be required if the decree expressly provides
otherwise.
(Emphasis added.)
Here, the original divorce decree provided that “[e]ach party shall be
responsible for his or her own health and dental insurance and his or her own
uninsured medical and dental expenses.” Thus, pursuant to the language of
the original divorce decree, the respondent was not eligible for coverage under
paragraph VII-b as of the date of that decree. See RSA 415:18, VII-b(a). As a
result, pursuant to RSA 415:18, XVI(a), the respondent had the right to
continuation coverage under RSA 415:18, XVI. See RSA 415:18, XVI(a). We
conclude, therefore, that the coverage the respondent obtained as a result of
the 2013 amendment to the divorce decree was coverage under RSA 415:18,
XVI. See In the Matter of Salesky & Salesky, 157 N.H. 698, 702 (2008) (“The
interpretation of a court order is a question of law, which we review de novo.”).
RSA 415:18, XVI provides, in pertinent part:
(a) Carriers shall provide continuation of coverage when an
individual covered by a plan of group health insurance or a health
maintenance organization that provides medical, hospital, dental,
and/or surgical expense benefits, except student major medical
expense coverage where the policyholder is the school, loses
coverage under the plan. Any group policy of health insurance
that affects a resident of New Hampshire that is delivered or issued
for delivery in this state or any other state shall contain a provision
that allows each subscriber or member on the policy who is a
resident of New Hampshire to obtain continuation coverage under
this section. Coverage shall be provided in accordance with the
procedures described in this section.
....
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(c) Periods of coverage shall be as follows:
....
(4) Thirty-six month period — Subject to subparagraph
(e), coverage shall continue subject to this section for a
period of 36 months if any individual loses coverage under a
group health insurance plan for one of the following reasons:
....
(B) The divorce or the legal separation of the
covered employee or, if the employee’s former spouse
has been covered pursuant to RSA 415:18, VII-b, the
first occurring of any of the following events:
(i) The remarriage of the covered employee;
(ii) The death of the covered employee;
(iii) The 3-year anniversary of the final decree
of divorce or legal separation; or
(iv) Such earlier time as provided by said
decree;
....
(5) When the surviving spouse, divorced spouse, or legally
separated spouse is 55 years of age or older and loses
coverage because of the death, divorce, or legal separation of
the covered employee, coverage shall continue subject to this
section until such time as the spouse becomes eligible for
participation in another employer-based group plan or
becomes eligible for Medicare.
The petitioner argues that the respondent was entitled to only one period
of continuation coverage under RSA 415:18, XVI. She contends that, because
he received that coverage pursuant to the 2013 amendment to the divorce
decree retroactive from April 2011 to April 2014, he has received all of the
coverage that he is entitled to under the statute. We agree.
Under RSA 415:18, XVI(a), “[c]arriers shall provide continuation of
coverage when an individual covered by a plan of group health insurance or a
health maintenance organization that provides medical, hospital, dental,
and/or surgical expense benefits . . . loses coverage under the plan.” Under
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subparagraph (b), “[t]he effective date of continuation coverage shall be the date
the individual’s coverage under the group plan ceased.” RSA 415:18, XVI(b).
RSA 415:18, XVI(c) mandates the “[p]eriods of coverage” that a carrier
must provide when an individual loses coverage. As relevant here, under
subparagraph (c)(4), if an individual loses coverage “under a group health
insurance plan” by reason of divorce, he or she is entitled to coverage “for a
period of 36 months.” RSA 415:18, XVI(c)(4)(B). On the other hand, under
subparagraph (c)(5), “[w]hen the . . . divorced spouse . . . is 55 years of age or
older and loses coverage because of the . . . divorce,” then coverage “shall
continue subject to this section until such time as the spouse becomes eligible
for participation in another employer-based group plan or becomes eligible for
Medicare.” RSA 415:18, XVI(c)(5).
Here, neither the amended divorce decree, nor the trial court’s order
specified what period of coverage the respondent obtained under RSA 415:18,
XVI(c) as a result of the 2013 amendment to the divorce decree. However, the
amendment provided the respondent with coverage for a three-year, i.e., 36-
month, period beginning on the date we issued the mandate on the
respondent’s appeal of the parties’ divorce action. In addition, the trial court
ruled that, read together, subparagraphs (c)(4) and (5) provide the respondent
with an extended coverage period under subparagraph (c)(5). We, therefore,
presume that the respondent’s initial period of coverage was under
subparagraph (c)(4). See In the Matter of Costa & Costa, 156 N.H. 323, 331
(2007) (“[I]n the absence of specific findings, a court is presumed to have made
all findings necessary to support its decree.” (quotation omitted)). Thus, the
respondent was entitled to continuation coverage for a period of three years.
See RSA 415:18, XVI(c)(4).
It is undisputed that the respondent obtained three years of coverage
pursuant to the 2013 amendment to the divorce decree. Nonetheless, the trial
court found that, following the expiration of the three-year period of coverage,
the respondent was entitled to an additional period of coverage under RSA
415:18, XVI(c)(5). This was error.
We interpret 415:18, XVI(c) as providing separate and discrete coverage
periods depending upon the reason that an individual loses coverage. See RSA
415:18, XVI(c). Nothing in the statutory language of subparagraph (c)(4)
suggests that an individual is entitled to an additional period of continuation
coverage once the 36-month period has expired. See RSA 415:18, XVI(c)(4).
Moreover, to obtain coverage under subparagraph (c)(5), the individual
must be “55 years of age or older and lose[] coverage because of the . . .
divorce.” RSA 415:18, XVI(c)(5) (emphasis added); see Boyle v. City of
Portsmouth, 154 N.H. 390, 392 (2006) (“The word ‘and’ is defined as ‘along
with or together with,’ ‘added to or linked’ and ‘as well as.’” (ellipsis omitted)).
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In this case, the respondent initially lost coverage because of the divorce on
April 21, 2011, the date our mandate issued on his appeal of the divorce
decree. He later turned 55 during the three-year period of coverage provided by
the 2013 amendment to the divorce decree. Thus, because the respondent was
not 55 at the time that he lost coverage because of the divorce, he was not
eligible for coverage under RSA 415:18, XVI(c)(5).
The respondent cites RSA 415:18, VII-b(h) in support of his argument
that the trial court did not err by finding that he is entitled to a second period
of coverage under RSA 415:18, XVI(c)(5). RSA 415:18, VII-b(h) provides that
[t]o the extent that there is a conflict between [RSA 415:18, VII-b]
and RSA 415:18, XVI with respect to eligibility for group coverage
upon a final decree of nullity, divorce or legal separation, the
provisions that confer greater rights on the former spouse shall
apply unless the decree expressly provides otherwise.
We interpret this provision as applying when there is a conflict as to whether
an individual is eligible for group coverage under RSA 415:18, VII-b or XVI.
Here, however, because the language of the original divorce decree rendered the
respondent ineligible for coverage under RSA 415:18, VII-b as of the date of
that decree, there is no such conflict. RSA 415:18, VII-b(h) is therefore
inapplicable in this case.
The respondent further suggests that the petitioner’s appeal is not
properly before us because, after she filed her notice of appeal, the parties
reached an agreement regarding his dental insurance coverage. The petitioner
disputes that the parties reached “any agreement regarding dental insurance.”
The respondent has not provided this court with a record demonstrating that
this issue was presented to the trial court, nor has he requested that we
remand this case to the trial court to address this issue. In these
circumstances, we decline to address this argument.
Accordingly, because the respondent was entitled to only one period of
continuation coverage under RSA 415:18, XVI, and he received that coverage
pursuant to subparagraph (c)(4), we conclude that the trial court erred by
ruling that he was entitled to extended coverage under subparagraph (c)(5).
We, therefore, reverse the trial court’s order requiring the petitioner to add the
respondent to her insurance and to pay for certain of the respondent’s
insurance costs.
In light of our decision, we need not address the petitioner’s remaining
arguments.
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II. Respondent’s Cross-Appeal
In his cross-appeal, the respondent contends that the trial court erred by
denying his request for attorney’s fees. A prevailing party may be awarded
attorney’s fees when recovery of fees is authorized by statute, an agreement
between the parties, or an established judicial exception to the general rule
that precludes recovery of such fees. In the Matter of Mason & Mason, 164
N.H. 391, 398 (2012). Given our decision herein, the respondent is not the
prevailing party and, therefore, is not entitled to an award of attorney’s fees.
Accordingly, we affirm the trial court’s ruling on the respondent’s request for
attorney’s fees.
Reversed in part; and
affirmed in part.
DALIANIS, C.J., and BASSETT, J., concurred.
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