Petition of Eric Willeke and Regina Willeke

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
8th Circuit Court-Keene Family Division
No. 2016-0079
PETITION OF ERIC WILLEKE AND REGINA WILLEKE
Submitted: February 16, 2017
Opinion Issued: May 12, 2017
Law Offices of Joseph S. Hoppock, PLLC, of Keene (Joseph S. Hoppock
on the brief), for the petitioners.
Samantha Pelc, self-represented party, filed no brief.
Tyler Wyman, self-represented party, filed no brief.
HICKS, J. The petitioners, Eric and Regina Willeke, appeal an order of
the Circuit Court (Forrest, J.) dismissing their petition for visitation with their
now five-year-old great-grandchild for lack of standing. We affirm.
The relevant facts follow. Regina Willeke is the maternal great-
grandmother of the child. Eric Willeke is the child’s maternal step-great-
grandfather. The Willekes’ petition alleges that the child lived with the
petitioners for most of her life. They were her guardians until November 12,
2015, and they sought great-grandparent visitation rights on September 22,
2015. Tyler Wyman, the child’s father, responded to the petition, arguing that
New Hampshire law does not confer upon great-grandparents standing to seek
visitation. The trial court construed the answer as a motion to dismiss, to
which the petitioners objected. In their objection, the petitioners argued that
they have a common-law right to seek visitation with the child and,
alternatively, that RSA 461-A:13 (Supp. 2016) should be interpreted as
conferring upon great-grandparents standing to petition for visitation.
The trial court granted the motion to dismiss, concluding “that the words
of [RSA 461-A:13] are not ambiguous and are intended to afford rights to
grandparents only.” The trial court did not address the petitioners’ common-
law claim.
On appeal, the petitioners do not argue that the trial court erred in
interpreting RSA 461-A:13. Instead, they argue only that they have common-
law standing, independent of RSA 461-A:13, to request that the trial court
exercise its parens patriae power to grant them visitation with the child. In the
petitioners’ view, the common-law right to seek visitation survived the 1991
amendment of RSA 458:17, VI (1983 & Supp. 1991) (amended 2003) (repealed
2005) and the enactment of RSA 458:17-d (1992) (amended 1993, 2004)
(repealed 2005), which were succeeded by RSA 461-A:6, V (Supp. 2016) and
RSA 461-A:13 respectively, see Laws 2005, 273:1, :20. Thus, the petitioners
conclude that the trial court’s failure to “consider the availability” of its parens
patriae power to order great-grandparent visitation was error. They also argue
that the principles of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion),
adopted by this court in In the Matter of Rupa & Rupa, 161 N.H. 311, 317-18
(2010), “[a]re [n]ot [o]ffended” by the court’s exercise of that parens patriae
power. (Bolding omitted.) Because we conclude that RSA 458:17, VI, as
amended in 1991, and RSA 458:17-d and their statutory successors
extinguished courts’ common law parens patriae power to order visitation, we
need not determine whether the exercise of that power to order great-
grandparent visitation would offend the principles of Troxel.
“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.” Petition of
Lundquist, 168 N.H. 629, 631 (2016) (quotation omitted). “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. (quotation omitted). “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. (quotation omitted).
“Because the underlying facts are not in dispute, we review the trial court’s
decision de novo.” Id. (quotation omitted).
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Determining whether RSA 458:17, VI, as amended in 1991, RSA
458:17-d, and their successors, RSA 461-A:6, V and RSA 461-A:13, abrogated
the common-law right to petition for visitation requires that we engage in
statutory interpretation. “Statutory interpretation is a question of law, which
we review de novo.” Id. (quotation omitted). 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. Id. 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.Prior to 1989, RSA 458:17, VI (1983) (amended 1991, 2003) (repealed
2005) empowered courts to order grandparent visitation only in divorce
proceedings. See Roberts v. Ward, 126 N.H 388, 390-91 (1985). Under the
common law, however, courts could use their “parens patriae power to permit
grandparental visitation when it [was] in the best interests of the child, in
situations where RSA 458:17, VI [was] not applicable.” Id. at 392. In deciding
that courts could grant grandparent visitation outside divorce proceedings, we
explained that:
It would be shortsighted indeed, for this court not to recognize the
realities and complexities of modern family life, by holding today
that a child has no rights, over the objection of a parent, to
maintain a close extra-parental relationship which has formed in
the absence of a nuclear family.
Id. Thus, Roberts recognized a common-law right of grandparents and others
with whom a child had formed a close extra-parental relationship to petition for
visitation — outside divorce proceedings — in the absence of a nuclear family.
Id.In 1989, the legislature enacted RSA 458:17-d, which provided, in
relevant part, that:
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 458:17-d, I; Laws 1989, 314:2. When the legislature passed RSA
458:17-d in 1989, it simultaneously amended RSA 458:17, VI to reflect that
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courts could grant visitation to grandparents pursuant to RSA 458:17-d. Laws
1989, 314:1-2. Later, in 1991, RSA 458:17, VI was amended to read, in
relevant part:
If the court determines that it is in the best interest and welfare of
the children, it shall in its decree grant reasonable visitation
privileges to a party who is a stepparent of the children or to the
grandparents of the children pursuant to RSA 458:17-d.
Laws 1991, 93:1.
In 2005, the legislature repealed a large portion of RSA chapter 458 and
replaced it with RSA chapter 461-A, entitled “PARENTAL RIGHTS AND
RESPONSIBILITIES.” See RSA ch. 458 (2004 & Supp. 2016); RSA ch. 461-A
(Supp. 2016); Laws 2005, ch. 273. RSA chapter 461-A controls “cases
concerning parental rights and responsibilities,” RSA 461-A:3 (Supp. 2016),
and is not limited to divorce cases, see RSA 461-A:13 (“The petition for
visitation shall be entered in the court which has jurisdiction over the divorce,
legal separation, or a proceeding brought under this chapter.”). The sentence
of RSA 458:17, VI, as amended in 1991, that authorized stepparent and
grandparent visitation was incorporated into RSA 461-A:6, V. Compare RSA
458:17, VI, with RSA 461-A:6, V. RSA 461-A:13 replaced RSA 458:17-d, and
the two statutes are substantially similar. Compare RSA 458:17-d, with RSA
461-A:13.
Generally, “[w]e will not construe a statute . . . as abrogating the
common law unless the statute clearly expresses such an intention.” Univ.
Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454 (2015) (quotation
omitted). However, when a statute revises the entire subject of a common law
cause of action and is clearly designed as a substitute, the common law is
abrogated, although no express terms to that effect are used. See Powell v.
Catholic Med. Ctr., 145 N.H. 7, 11 (2000). This rule rests upon the principle
that:
[W]hen the legislature frames a new statute upon [a] subject–
matter, and from the framework of the act it is apparent that the
legislature designed a complete scheme for this matter, it is a
legislative declaration that whatever is embraced in the new law
shall prevail, and whatever is excluded is discarded.
Id. (quotation and ellipsis omitted). We conclude that RSA 458:17, VI, as
amended in 1991, and RSA 458:17-d abrogated the common-law right to
petition for visitation because the statutes revised the entire subject of
visitation and were designed as a substitute.
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The legislature’s intent to revise the entire subject of visitation is evident
because RSA 458:17, VI, as amended in 1991, and RSA 458:17-d conferred
standing upon stepparents and grandparents to seek visitation in the same
circumstances that the common law, together with the earlier version of RSA
458:17, VI, conferred standing upon those with whom a child had formed a
close extra-parental relationship. RSA 458:17-d specifically permitted
grandparents standing to seek visitation in “the absence of a nuclear family.”
RSA 458:17-d, I; see O’Brien v. O’Brien, 141 N.H. 435, 436-37 (1996)
(construing RSA 458:17-d to authorize grandparent visitation only when one of
the following conditions has come to pass: “divorce, death, relinquishment or
termination of parental rights, or other cause of the absence of a nuclear
family” (quotation omitted)). The common law conferred standing upon those
with whom a child had formed a close extra-parental relationship in
substantially similar circumstances. Roberts, 126 N.H. at 390-92 (discussing
court’s parens patriae power to grant visitation in certain circumstances
outside of divorce proceedings, and explaining that RSA 458:17, VI controlled
visitation in divorce proceedings). In fact, the legislature incorporated the very
language used in Roberts: “the absence of a nuclear family.” RSA 458:17-d, I;
RSA 461-A:13, I; see Roberts, 126 N.H. at 392.
The fact that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d
did not simply codify Roberts, but rather significantly altered the standard we
articulated in Roberts, demonstrates that the statutes were designed as a
substitute for the common law. The statutes altered the common law in four
respects. First, the legislature circumscribed the class of people who could
petition for visitation. When it amended RSA 458:17, VI in 1991, the
legislature permitted only grandparents and stepparents to seek visitation.
Laws 1991, 93:1. By contrast, the common law conferred standing to seek
visitation upon anyone with whom a child had formed a close extra-parental
relationship. Roberts, 126 N.H. at 392. Second, RSA 458:17-d changed the
manner in which courts decide whether to grant grandparent visitation. The
statute required courts to consider the factors that, in Roberts, we only
suggested, but did not require, that they consider. See RSA 458:17-d, II (listing
factors suggested in Roberts); Roberts, 126 N.H. at 394. It also added two
factors that courts must consider. See RSA 458:17-d, II (requiring courts to
also address a guardian ad litem’s recommendation and whether visitation
would interfere with parent’s authority over child or with parent-child
relationship); Roberts, 126 N.H. at 394. Third, RSA 458:17-d added the
significant caveat that no visitation would be permitted if the grandparent’s
access to the child had been “restricted for any reason” prior to the triggering
condition. RSA 458:17-d, I. Finally, the statute dictated where the petition
should be filed and allocated the costs of the petition. RSA 458:17-d, III, VII.
Accordingly, we now hold that the common-law right to petition for
visitation was superseded by the enactment of RSA 458:17, VI, as amended in
1991, and RSA 458:17-d because the legislature revised the entire subject of
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visitation, and the statutes were clearly designed as substitutes for the
common law. The legislature preserved that statutory scheme when it enacted
RSA 461-A:6, V and RSA 461-A:13. Therefore, we conclude that the trial court
did not err when it did not consider its parens patriae power as a basis to order
great-grandparent visitation. Thus, we affirm the trial court’s dismissal of the
great-grandparents’ petition for visitation for lack of standing.
Finally, any issues raised in the notice of appeal, but not briefed, are
deemed waived. See Town of Barrington v. Townsend, 164 N.H. 241, 251
(2012).
Affirmed.
DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
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