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                       THE SUPREME COURT OF NEW HAMPSHIRE

                                  ___________________________

9th Circuit Court-Goffstown District Division
No. 2019-0027

                                      AMANDA COLBURN

                                                 v.

                                  NICHOLAS SAYKALY & a. 1

                                Argued: November 19, 2019
                               Opinion Issued: March 11, 2020

         Shaughnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy and
James B. Kazan on the brief, and Mr. Shaughnessy orally), for the plaintiff.


         Cohen and Winters, PLLC, of Concord (Andrew S. Winters and Elroy F.
Sequeira on the brief, and Mr. Winters orally), for the defendant.

       BASSETT, J. The defendant, Nicholas Saykaly, appeals an order of the
9th Circuit Court-Goffstown District Division (Gorman, J.) issuing a writ of
possession to the plaintiff, Amanda Colburn. On appeal, the defendant argues
that the trial court lacked subject matter jurisdiction to hear the plaintiff’s
landlord-tenant action because the home in question was marital property
subject to the parties’ ongoing divorce proceeding, and because the defendant
is not a “tenant” of the plaintiff. He contends that the 9th Circuit Court–
Goffstown Family Division has exclusive jurisdiction over the home until either

1   The additional defendant named in the trial court did not participate on appeal.
the divorce proceeding is finalized or the family division relinquishes
jurisdiction over the home. Because we conclude that the district division has
jurisdiction to hear and decide this case, we affirm.

       The following facts are supported by the record or undisputed on appeal.
Between 2009 and 2013, the parties lived in a single-family home owned by the
plaintiff in Manchester (the original home). The parties later moved to a nearby
home, which is owned solely by the defendant (the marital home). Following
the move, the parties rented their original home to the defendant’s brother.
The parties agree that both homes are marital property.

       In March 2018, the plaintiff filed a petition for divorce in the family
division. On August 13, 2018, the court issued a temporary order and decree
in the divorce case providing that the plaintiff would continue to reside in the
marital home, and permitting the defendant to reside with his brother at the
original home. The court also decreed that the plaintiff would receive all rents
from, and manage, the original home.

       Shortly thereafter, the plaintiff discovered that the water from the well
servicing the original home was contaminated with E. coli and coliform
bacteria. The plaintiff determined that the best way to avoid harm to the
occupants was to evict them and take the home off the rental market until she
could replace the well. Accordingly, the plaintiff served the defendant and his
brother with an eviction notice. When they did not vacate the home, the
plaintiff commenced an action in the district division seeking a writ of
possession. Coincidentally, the judge presiding in the divorce action also
presided in the eviction case.

       At the merits hearing in the district division, the plaintiff argued that,
because the original home is “[n]onrestricted property,” RSA 540:1-a, I(a)
(2007), she could lawfully evict the occupants without good cause. She further
argued that, even if she needed to show good cause, the health hazard
presented by the contaminated water satisfied that standard. The defendant
argued that, inter alia, the district division lacked jurisdiction to hear the case
because the dispute was between spouses and involved marital property that
was the subject of a pending divorce action. The plaintiff countered that the
district division had jurisdiction because the eviction case concerned only
possession of the original home, and did not impact the equitable distribution
of marital property.

      During the merits hearing in the district division, the court expressed
concern that, apart from the ongoing divorce proceeding, it might lack
jurisdiction to adjudicate the defendant’s right to reside at the original home.
The trial court also observed that the right of the defendant’s brother to reside
in the home could not be adjudicated in the divorce proceeding. Ultimately,
the court found for the plaintiff. The court also stated that its order was issued


                                         2
without prejudice to the rights and responsibilities of the plaintiff and
defendant in the ongoing divorce proceeding. This appeal followed.

      The sole question before us is whether the district division had subject
matter jurisdiction over the eviction action. A court does not have power to
hear a case concerning subject matters over which it lacks jurisdiction, and
subject matter jurisdiction cannot be conferred where it does not already exist.
Maldini v. Maldini, 168 N.H. 191, 194 (2015). The ultimate determination as to
whether the district division had jurisdiction in this case presents a question of
law, and, therefore, our review is de novo. Id.

       Because the circuit court, its divisions, and its jurisdiction, are created
by statute, see RSA 490-F:2, :3 (Supp. 2019), we look to the relevant statutes
to answer the question presented by this appeal. See Maldini, 168 N.H. at 194.
When undertaking statutory interpretation, we first examine the language
found in the statute and, where possible, we ascribe the plain and ordinary
meanings to words used. Id. at 194-95. When a statute’s language is plain
and unambiguous, we need not look beyond it for further indications of
legislative intent. Id. at 195. “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). We interpret statutes not in isolation, but in the
context of the overall statutory scheme. Id.

       The defendant first argues that the district division lacked jurisdiction to
hear the eviction case because, by virtue of the ongoing divorce case, the family
division has exclusive jurisdiction over the original home. Alternatively, the
defendant argues that the district division lacked jurisdiction because he is not
the plaintiff’s tenant. We address each argument in turn.

       RSA 490-D:2 provides, in pertinent part, that “the judicial branch family
division” has exclusive jurisdiction over “[p]etitions for divorce, nullity of
marriage, alimony, custody of children, support, and to establish paternity.”
RSA 490-D:2, I (2010). “When a dissolution of a marriage is decreed, the court
may order equitable division of property between the parties,” which 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, II (2018).

      The defendant argues that RSA 490-D:2 and RSA 458:16-a, I, II grant the
family division exclusive jurisdiction and “inherent” authority over all assets
owned by either spouse. He asks us to adopt a bright-line rule that, once a
divorce petition is filed, the family division has exclusive jurisdiction over
marital property vis-à-vis the spouses.

      We disagree with the premise of the defendant’s argument. RSA 490-D:2
does not grant the family division “exclusive jurisdiction” over the assets owned


                                         3
by divorcing spouses, either individually or collectively. Rather, according to
its terms, the statute merely grants jurisdiction to the family division over the
divorce proceeding itself. Even if the defendant were correct, the legislature
has not included his proposed bright-line rule in RSA chapter 490-F, and we
will not read one into the statutory scheme. See Maldini, 168 N.H. at 195.

       Moreover, we decline to construe RSA chapter 490-F in a fashion that
would curb the flexibility afforded to the circuit court by the legislature. “The
legislature established the circuit court in 2011 by merging the former probate
and district courts and the former judicial branch family division.” In re
Search Warrant for Records of AT & T, 170 N.H. 111, 113 (2017); see Laws
2011, 88:1. It conferred the “jurisdiction, powers, and duties of these former
courts upon the circuit court, and divided the circuit court into three divisions:
a probate division, a district division, and a family division.” In re Search
Warrant for Records of AT & T, 170 N.H. at 113 (quotation omitted); see RSA
490-F:3. “Each circuit court location . . . [has] the authority to hear all cases
within the subject matter jurisdiction of the circuit court,” and the legislature
has expressly permitted “the reassignment of cases within the circuit court as
justice or efficiency require[ ] in the discretion of the administrative judge of the
circuit court.” RSA 490-F:2.

       Although there remain statutory references “to the probate or district
courts or to the judicial branch family division,” those references “shall be
deemed to be to the New Hampshire circuit court where it has exclusive
jurisdiction of a subject matter and to the superior court and circuit court
where the circuit court has concurrent jurisdiction with the superior court.”
RSA 490-F:18 (Supp. 2019). Circuit court judges are assigned to a division
within the court “at the discretion of the administrative judge,” as “justice and
efficiency require.” RSA 490-F:6, VI, VIII (Supp. 2019). “Judges may be
certified in all divisions of the circuit court” pursuant to supreme court rules.
RSA 490-F:6, VII (Supp. 2019).

       The defendant’s proposed bright-line rule would create a rigid barrier
that would undermine the flexible design of the circuit court and its divisions.
The statutory scheme allows judges to be certified in, and move between, all
divisions of the circuit court as justice and efficiency require. See RSA 490-
F:2, :3, :6, VI, VII.

       We similarly decline the defendant’s invitation to adopt a “first-in-time”
rule in cases in which the family division has exercised jurisdiction over
marital property. The proposed rule would mean that the family division has
jurisdiction over marital property to the exclusion of all other courts once the
family division has exercised jurisdiction over such property. The legislature
has not imposed such a requirement in RSA chapter 490-F, and we will not do
so by judicial fiat.



                                         4
       In support of his “first-in-time” theory of exclusive jurisdiction, the
defendant relies heavily upon Sullivan v. Algrem, 160 F. 366 (8th Cir. 1908), an
opinion issued by the Eighth Circuit Court of Appeals more than a century ago.
However, Sullivan is inapposite and sheds no light on the intent of the
legislature when it created the circuit court in 2011.

       The defendant next argues that, because he is not a “tenant” pursuant to
RSA 540-A:1, II, and, therefore, lacks a landlord-tenant relationship with the
plaintiff, the district division had no jurisdiction over the eviction case. We
disagree. Although the defendant’s assertion that he is not a “tenant”
pursuant to RSA 540-A:1 is accurate, see RSA 540-A:1, II, RSA chapter 540-A
governs proceedings and penalties only in cases in which a landlord or tenant
engages in a “prohibited practice.” See RSA 540-A:2 (2007), :3 (Supp. 2019).
There is no allegation of a “prohibited practice” in this case, and, therefore,
RSA chapter 540-A is not implicated. However, RSA chapter 540, the chapter
governing residential evictions in New Hampshire, expressly provides that
possession may be recovered “from a lessee, occupant, mortgagor, or other
person in possession.” RSA 540:12 (2007). Thus, the district division was not
without jurisdiction to adjudicate the eviction action merely because the
defendant was an occupant rather than a tenant.

      The defendant also urges us to adopt the reasoning of the trial court in
Giuffrida v. Giuffrida, 649 N.Y.S.2d 773 (N.Y. Civ. Ct. 1996), that a “licensee”
permitted to reside at a premises by one with a right to possession of the
premises is not subject to the jurisdiction of the court in an eviction action.
Giuffrida, 649 N.Y.S.2d at 776. However, Giuffrida is inapposite. Not only did
the case turn upon the specific language of a New York statute, but it involved
a theory of property ownership — tenancy by the entirety — which is “a form of
ownership whose attributes are not recognized in New Hampshire.” See Estate
of Croteau v. Croteau, 143 N.H. 177, 180 (1998).

       Finally, it is important to note that the district division’s order explicitly
provided that it was issued without prejudice to the rights and responsibilities
of the parties in the divorce proceeding. In addition, the defendant remains
free to seek a modification of the family division’s temporary order in light of
his eviction.

        As Justice Holmes observed, “the machinery of government would not
work if it were not allowed a little play in its joints.” See Rafferty v. State, 107
N.H. 387, 389 (1966) (quoting Bain Peanut Co. v. Pinson, 282 U.S. 499, 501
(1931)). Here, the legislative scheme governing the circuit court requires play
in its joints to function properly, rather than a rigid rule that reduces the
flexibility afforded to the circuit court divisions by the legislature. We are
confident that, when two or more divisions of the circuit court have jurisdiction
over parties or property, each division will assess the circumstances and wisely
exercise its discretion, deferring to other divisions if and when appropriate.


                                          5
That is exactly what happened here. Accordingly, we hold that the district
division has jurisdiction to hear and decide the eviction action.

                                                Affirmed.

      HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.




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