In re Neal

• Decision Date: 30 March 2018
• Docket Number: No. 2016–0683,2016–0683
• Citation: 184 A.3d 90,170 N.H. 671
• Parties: In the MATTER OF Gregory NEAL and Lauren Digiulio
• Court: New Hampshire Supreme Court

170 N.H. 671

184 A.3d 90

In the MATTER OF Gregory NEAL and Lauren Digiulio

No. 2016–0683

Supreme Court of New Hampshire.

Submitted: November 9, 2017

Opinion Issued: March 30, 2018

Law Office of L. Bradley Helfer, PLLC, of Wolfeboro (L. Bradley Helfer on the brief), for the petitioner.

Greene and Greene, PLLC, of Dover (David J. Greene on the brief), for the respondent.

LYNN, J.

The respondent, Lauren DiGiulio, appeals an order of the 3rd Circuit Court–Ossipee Family Division (Pendleton, J.) granting the motion of the petitioner, Gregory Neal, to rescind a voluntary acknowledgment of paternity. The respondent also appeals the trial court's denial of a hearing on her request for attorney's fees. We affirm.

The trial court found, or the record reveals, the following facts. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the child's birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that the petitioner is the child's "natural father." At the time of the child's birth, the respondent did not raise the possibility that someone else might be the child's father. The parties lived together for approximately three years after the child's birth, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child.

In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner is the second child's biological father, but that he is not the biological father of the first child. The results also established the identity of the first child's biological father, who was then incarcerated. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child's biological father was released from prison. At that point, the respondent severed the petitioner's contact with the child in favor of the child's biological father. Thereafter, the petitioner made a number of requests to see the child, all of which were denied. However, at no time did the petitioner file a parenting petition with respect to the child.

On August 24, 2015, the petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties' children. In November, in that same proceeding, the petitioner filed a "Motion to Rescind Paternity" of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court "[a]cknowledge that [he] is not the biological father of" the child and "order and declare that [he] is not the legal father of" the child. (Bolding, underlining, and capitalization omitted.)

Following a hearing, the trial court granted the motion, rescinding the petitioner's acknowledgment of paternity of the first child. The court found that the petitioner mistakenly believed that he was the father of the first child at the time of the child's birth, and because the respondent never told the petitioner that there was a chance that he was not the child's father despite possessing "knowledge that clearly could have been relevant, or allowed the parties to address paternity at the time of birth," it would be "unfair ... to hold [the petitioner] responsible for his good faith act of signing the affidavit of paternity, given the now clearly material misunderstanding of fact under which he acted." Noting that it was the respondent who "terminated the relationship between the parties," the court further found that it would be "equally unfair" to hold the petitioner's "subsequent efforts to continue to parent [the child] against him as grounds justifying denial of his request to rescind the affidavit of paternity."

Finally, the court rejected the respondent's argument that the petitioner was estopped from seeking rescission of the acknowledgment of paternity because he did not immediately do so after learning that he was not the child's biological father. Instead, the court found "it reasonable to grant [the petitioner's] request," recognizing that he "tried to make a good faith effort to take care of a child who needed help" and that it was the respondent "who rebuffed these efforts over the past two years resulting in the current situation where [the petitioner] has no ongoing relationship with" the child. The respondent sought reconsideration, which the court denied.

The respondent also requested attorney's fees for filing a motion relative to a misstatement made by the petitioner's attorney in an objection. The court denied the respondent's request, finding an award of attorney's fees was unwarranted. This appeal followed.

On appeal, the respondent argues that the trial court erred by granting the petitioner's motion to rescind paternity of the child. Specifically, the respondent contends that: (1) the court lacked subject matter and personal jurisdiction; (2) the court applied an erroneous legal standard; and (3) the court should have dismissed the petitioner's motion in light of his delay in seeking rescission. The respondent further maintains that the trial court erred by not granting her a hearing on her request for attorney's fees relative to the misstatement made by the petitioner's counsel in an objection. We address each argument in turn.

I. Jurisdiction

The respondent first contends that the trial court lacked subject matter and personal jurisdiction over the petitioner's motion because the child was not named in his initial parenting petition, and because the parenting petition did not sufficiently establish the court's jurisdiction over the child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, RSA chapter 458–A (Supp. 2017). The petitioner counters that the court properly had jurisdiction over his motion to rescind under RSA 5–C:28 (2013).

Resolution of this argument requires that we interpret the relevant statutory provisions. In matters of statutory interpretation, we are the final arbiters of legislative intent as expressed in the words of the statute considered as a whole. In the Matter of Conant & Faller, 167 N.H. 577, 580, 116 A.3d 561 (2015). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Id. When a statute's language is plain and unambiguous, we need not look beyond it for further indications of legislative intent. In the Matter of Muller & Muller, 164 N.H. 512, 517, 62 A.3d 770 (2013). "Courts can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include." Id. (quotation omitted).

Here, in the parenting proceeding initiated by the petitioner with respect to the second child, the petitioner moved to rescind his paternity of the first child pursuant to RSA 5–C:28. RSA 5–C:28 provides, in pertinent part, that:

I. A parent or legal guardian may request to rescind an affidavit of paternity from the clerk of the city or town where the birth occurred within 60 days of the filing of an affidavit of paternity unless an administrative or judicial proceeding related to the child results in an earlier date.

....

III. After the 60–day rescission period has passed, any challenge to the affidavit shall be decided only by a court of competent jurisdiction.

The statute does not otherwise define what constitutes a "court of competent jurisdiction" or what procedures apply to such a proceeding. However, RSA 490–D:2, I (Supp. 2017) grants the family division jurisdiction over "[p]etitions for divorce, nullity of marriage, alimony, custody of children, support, and to establish paternity." See also Fam. Div. R. 2.1 (granting the family division "jurisdiction over ... paternity"). In addition, the family division has "the powers of a court of equity in cases where subject matter jurisdiction lies with [the family division]." RSA 490–D:3 (2010); see also RSA 490–F:3 (Supp. 2017) (granting circuit court the jurisdiction conferred upon the former judicial branch family division).

Because the family division has subject matter jurisdiction over petitions to establish paternity, and is given equity jurisdiction over cases in which subject matter jurisdiction lies, it logically follows that it has jurisdiction under RSA 490–D:3 to grant the equitable remedy of rescission with respect to an affidavit that establishes paternity. Thus, we conclude that the family division had subject matter jurisdiction over the petitioner's request to rescind his acknowledgment of paternity.

Relying upon RSA chapter 458–A, the respondent contends that the court never had jurisdiction over the first child because the petitioner failed to identify the child in his initial parenting petition and to articulate sufficient facts in his motion to allow the court to exercise jurisdiction under RSA 458–A:12. RSA chapter 458–A governs when a court of this state has jurisdiction to make or modify a child custody determination. See RSA 458–A:12 – :15. " ‘Child-custody determination’ means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child." RSA 458–A:1, III. Assuming, for purposes of this appeal, that an order rescinding paternity is a child-custody determination under RSA chapter 458–A, see RSA 458–A:1, IV (defining " ‘[c]hild-custody proceeding’ " to mean, in relevant part, "a proceeding for ... paternity"), we cannot say that the court erred by exercising its jurisdiction in this case.

Under RSA 458–A:12, as relevant here, a court has jurisdiction "to make an initial child-custody determination" if this state is "the home state of the child on the date of the commencement of the proceeding," or if it has been "the home state of the child...