In the Matter of Brianna Kauble and William Kauble ( 2023 )

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
10th Circuit Court-Brentwood Family Division
No. 2021-0587
IN THE MATTER OF BRIANNA KAUBLE AND WILLIAM KAUBLE
Submitted: January 31, 2023
Opinion Issued: September 19, 2023
Champions Law, of Portsmouth (Jared Bedrick on the brief), for the
petitioner.
Cordell and Cordell PC, of Bedford (M. Chantal Crawley on the brief), for
the respondent.
Herbert Novell, self-represented party, on the brief, as intervenor.
BASSETT, J. The petitioner, Brianna Kauble, appeals the order of the
Circuit Court (Hall, J.) granting the request of the intervenor, Herbert Novell,
for grandparent visitation. See RSA 461-A:13 (2018). Because we determine
that the intervenor lacked standing under RSA 461-A:13 to seek grandparent
visitation, we reverse.
The trial court found, or the record supports, the following facts.
Brianna Kauble (Mother) and the respondent, William Kauble (Father), were
previously married and have three children. Herbert Novell (Grandfather) is
Mother’s father, and therefore the grandfather of her children.
In 2018, while Mother and Father were married, Grandfather helped
Mother and the children relocate from Arizona to live with him in New
Hampshire. Father remained in Arizona to continue working. In March 2019,
after living with Grandfather for six months, Mother and the children moved
out. In June 2019, Mother filed a petition for divorce from Father. In the
spring of 2020, while the divorce petition was pending, Mother’s relationship
with Grandfather became strained due to his refusal to pay for her divorce
attorney and his disapproval of her new boyfriend. As a result, in June 2020,
Mother cut off all contact between Grandfather and the children.
Grandfather subsequently intervened in the divorce proceeding and filed
a motion seeking visitation under RSA 461-A:13, the grandparent visitation
statute. Mother moved to dismiss that request, arguing that Grandfather
lacked standing to seek visitation under RSA 461-A:13. The trial court denied
that motion and concluded Grandfather had standing.
Mother and Father later stipulated to a final decree of divorce, which was
approved by the circuit court in May 2021. In October, following an evidentiary
hearing, the circuit court granted Grandfather’s request for visitation with the
children. Mother filed a motion to reconsider, which the court denied. This
appeal followed.
In Mother’s opening brief, she argues that the trial court erred when it
granted Grandfather visitation because he lacked standing under RSA 461-
A:13. Although, in her reply brief, Mother “waived” this argument, we
nevertheless address whether Grandfather had standing because standing
“presents a question of subject matter jurisdiction,” In re Guardianship of
Williams, 159 N.H. 318, 323 (2009), and subject matter jurisdiction cannot be
conferred by waiver, Cooperman v. MacNeil, 123 N.H. 696, 700 (1983).
Moreover, even if Mother had never challenged Grandfather’s standing, we
could raise the issue sua sponte. See Williams, 159 N.H. at 322-23.
In this case, whether Grandfather had standing turns on our
interpretation of the grandparent visitation statute. See RSA 461-A:13; In the
Matter of P.B. & T.W., 167 N.H. 627, 630 (2015) (“When the legislature has
clearly delineated the class that can petition to enforce a statutory scheme, we
will implement that determination meticulously.” (quotation omitted)).
Statutory interpretation presents a question of law for us to decide. See State
v. Surrell, 171 N.H. 82, 85 (2018). When construing a statute, we first look to
the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning. Petition of Lundquist, 168 N.H.
2
629, 631 (2016). 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. We construe all parts of the statute
together to effectuate its overall purpose and to avoid an absurd or unjust
result. Williams, 159 N.H. at 323. In construing RSA 461-A:13 in particular,
we must also “be mindful of our case law addressing when grandparent
visitation is constitutionally permissible.” In the Matter of Rupa & Rupa, 161
N.H. 311, 315 (2010); see also id. at 318 (“State and federal courts have long
recognized that there is a constitutional dimension to the right of parents to
direct the upbringing of their children.” (quotation omitted)).
RSA 461-A:13, I, provides:
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.
RSA 461-A:13, I (emphasis added). “We have construed this statute to
authorize grandparents to petition for visitation only when one of the
conditions listed at the end of the second sentence has come to pass.” P.B.,
167 N.H. at 629 (quotation omitted). However, a grandparent does not have
standing to seek visitation if the grandparent’s access to the grandchild was
restricted prior to or contemporaneous with the enumerated condition. Id.Mother and Grandfather disagree as to which of the conditions
enumerated in RSA 461-A:13, I, applies. They also disagree about whether
Grandfather’s access to the children was restricted prior to or
contemporaneous with one of those conditions. Father, for his part, “takes no
stance on the grant of grandparent visitation.” We first address the parties’
arguments about which of the enumerated circumstances applies.
In her opening brief, Mother contended that the applicable enumerated
circumstance was her divorce from Father. Grandfather counters that, before
Mother and Father divorced, some “other cause of the absence of a nuclear
family” occurred. He asserts that such “other cause” occurred either when
Mother initially moved to New Hampshire with the children while Father
remained in Arizona or subsequently when Mother’s new boyfriend moved in
with her and the children. We agree with Mother.
In order to resolve the parties’ dispute about which enumerated
condition applies in this case, we must interpret the meaning of the phrase
3
“other cause of the absence of a nuclear family” in RSA 461-A:13, I. When, as
here, general words follow an enumeration of specific persons or things, we
construe the general words as “applying only to persons or things of the same
kind or class as those specifically mentioned.” State v. Proctor, 171 N.H. 800,
806 (2019) (quotation omitted) (explaining statutory interpretation principle of
ejusdem generis). Applying this principle to RSA 461-A:13, I, we construe the
general phrase “other cause of the absence of a nuclear family” as limited to
circumstances that are of the same or similar nature as those enumerated.
See id. The conditions enumerated in the statute that vest a grandparent with
standing — divorce, death, and relinquishment or termination of parental
rights — are all final, or, at a minimum, are not transitory circumstances. See
RSA 461-A:13, I. Accordingly, in order for some other condition to fall within
the general category of “other cause of the absence of a nuclear family,” it must
also share that characteristic. See id.The two circumstances that Grandfather identifies are both transitory.
In 2018, prior to the filing of the divorce petition, Mother told Grandfather that
“she and [Father] wanted to relocate to New Hampshire,” but that they could
not afford to do so. Grandfather agreed to help the family by paying for Mother
and the children to relocate to New Hampshire in November 2018. The trial
court found that “[Father] did not come initially, as he was working.” These
findings reflect that, at least initially, Mother and Father intended to live apart
temporarily. Further, the fact that Mother’s new boyfriend subsequently
moved in with her and the children was similarly impermanent. When
Mother’s boyfriend moved in with her, the divorce petition was pending but the
final divorce decree had not yet issued. It was therefore possible that Mother
and Father could reconcile and decide not to divorce. See In the Matter of
Sweatt & Sweatt, 170 N.H. 414, 418-19 (2017) (observing that dissolution of
marriage was final after court issued divorce decree and it was not appealed).
Accordingly, we conclude that neither circumstance Grandfather relies upon is
similar enough to the enumerated conditions to be considered an “other cause
of the absence of a nuclear family.”
Our reading of the statute comports with the constitutional context in
which we must interpret RSA 461-A:13, I. Parents have a fundamental right,
protected by the State and Federal Constitutions, to raise and care for their
children. In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003). Given
this fundamental right, we have held that RSA 461-A:13 must be accorded “a
narrow construction.” Rupa, 161 N.H. at 317. Interpreting the statute to vest
grandparents with standing to seek visitation whenever married parents live
apart — however temporarily and whether living with a new partner or not —
could give rise to unwarranted interference with fundamental parental rights.
For these reasons, we are not persuaded by Grandfather’s argument that a
circumstance other than divorce caused “the absence of a nuclear family.”
Rather, we agree with Mother that, on these facts, the enumerated condition
4
was the parents’ divorce, which became final in May 2021. See RSA 461-A:13,
I.
Having determined that the divorce is the applicable circumstance, we
must now decide whether Grandfather’s access to the children was “restricted
for any reason prior to or contemporaneous with the divorce.” Id. The trial
court’s factual findings establish that it was. Mother filed the divorce petition
in June 2019 and the divorce was finalized in May 2021. The trial court found
that Mother terminated contact between the children and Grandfather in June
2020 — prior to the finalization of the divorce. Because Mother restricted
Grandfather’s access to the children “prior to” the parents’ divorce, RSA 461-
A:13 “shall not apply” and, therefore, Grandfather lacked standing to seek
visitation. RSA 461-A:13, I; see also P.B., 167 N.H. at 630 (“Here, because [the
child’s] parents did not restrict the [grandparents’] ability to visit [the child]
‘prior to or contemporaneous with’ their deaths, their deaths conferred
standing upon [the grandparents] to file for grandparent visitation.” (emphasis
added)).
We conclude that, because Grandfather lacked standing to seek
visitation under RSA 461-A:13, I, the trial court erred when it denied Mother’s
motion to dismiss for lack of standing. Grandfather’s lack of standing deprived
the circuit court of subject matter jurisdiction. See Carlson, Tr. v. Latvian
Lutheran Exile Church of Boston and Vicinity Patrons, 170 N.H. 299, 305
(2017). Because “any action taken by a court without jurisdiction is void,” we
need not address the parties’ other arguments. McLaughlin v. Mullin, 139 N.H.
262, 265-66 (1994) (quotation omitted). We observe that, if the legislature
disagrees with our statutory interpretation, it is free, subject to constitutional
limitations, to amend RSA 461-A:13, I, as it sees fit. See Proctor, 171 N.H. at
807.
Reversed.
MACDONALD, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,
concurred.
5