Tuesday, May 19, 2015

NEW HAMPSHIRE SUPREME COURT DECISION CLARIFIES GRANDPARENT VISITATION

On May 12, 2015, the New Hampshire Supreme Court, in the case of In re: PB, issued a decision clarifying when grandparents can petition for visitation rights with grandchildren. In the PB case, after the child’s parents died in 2012, the child was adopted by his mother’s sister. The child’s grandparents asked a court for visitation rights arguing that they had consistent, but not extensive, contact with their grandchild before his parents died.

In response to the grandparents’ petition, the child’s adoptive parents moved to dismiss the action. The trial court denied the motion to dismiss and the Supreme Court affirmed. In its opinion, the Supreme Court stated that grandparents only have standing to seek visitation if their access to the child has been restricted because of the parents’ death, divorce, relinquishment, or termination of parental rights, or some other cause that results in the absence of a nuclear family. Unless one of these conditions has occurred, a grandparent has no authority to independently seek visitation with their grandchild through the court system.

In the PB case, the Supreme Court held that once these statutory conditions were met; that is the death of the parents, the grandparents could petition for visitation with their grandchild. The statutory conditions did not, however, have to exist at the time they filed their petition. In other words, the subsequent creation of a new family unit does not divest a grandparent of the standing necessary to seek visitation rights.

It bears noting that merely granting standing to seek visitation did not mean that the grandparents ultimately prevailed. In PB, the trial court ultimately denied the petition, which the Supreme Court also upheld on appeal. The Supreme Court noted that the rights of the child’s parents are entitled to great judicial deference. Therefore, in a petition for grandparent visitation, the trial court will look carefully at what would be in the child’s best interest and whether the visitation will interfere with any parent/child relationship or the parent’s authority over the child.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Thursday, May 14, 2015

Radio Program: May 12, 2015 "The Importance of Business Valuations in Divorce and Business Disputes"

May 12, 2015: Attorneys Kevin P. Rauseo and J. Daniel Marr discuss "The Importance of Business Valuations in Divorce and Business Disputes".

Wednesday, May 13, 2015

FIRED EMPLOYEES HAVE DIFFICULTY MAKING SEPARATE CLAIMS FOR EMOTIONAL DISTRESS

When an employee believes he was wrongfully fired, he may have state or federal statutory claims he may proceed with in court, such as claims of employment discrimination and retaliation. In those cases, he may assert, as part of his damages, emotional distress. However, if the facts surrounding the firing do not support such a statutory claim, the employee’s options may be limited because most employees are employees at will and as such may be fired with or without cause and or notice. An exception to the employee-at-will rule is when the employee was fired for doing something public policy would encourage or refusing to do something that public policy would discourage and the firing was done with malice. If the employee has such a public policy wrongful discharge claim, he may also seek emotional distress.

However, if an employee believes his boss was grossly unfair and mean to him resulting in his firing or having to quit, it may be difficult for him to prove that he is covered under any state or federal statutory protections or he meets under the public policy exception of the employee-at-will doctrine. For example, if an employee believes that he was fired for being unjustly accused of stealing equipment, he could not say that he was illegally fired as a result of discrimination or that his firing fell under the public policy exception of employee-at-will doctrine since he was not fired for doing something public policy would encourage or refusing to do something public policy would discourage. He believes he was fired as a result of the employer’s unjustified belief that he stole equipment. If he can show that the employer knew he did not steal equipment, but fired him in retaliation for asserting certain statutory protected rights then he would have statutory claims to bring.

The claim that that boss was a jerk, even if true, is not enough for a wrongful discharge claim. Because of this, some employees in such a circumstance seek to assert the non-statutory claim of intentional infliction of emotional distress. To state such a claim, the plaintiff must allege that the defendant, by extreme or outrageous conduct intentionally or recklessly caused the severe emotional distress to another. For example, if someone was to contact another and lie that her spouse died in a car accident and caused her severe emotional distress, that would be sufficiently outrageous conduct to support an intentional infliction of emotional distress claim. Nevertheless, as the April 7 decision from the New Hampshire federal trial court of Chad T. Maynard v. Meggitt-USA, Inc. showed, intentional infliction of emotional distress claims are tough to prove in the employment context. While the federal trial court in that case first pointed out that the employee had not alleged emotional distress in his Complaint and that, itself, was a ground to dismiss that claim, the Court went further to state that under the facts alleged in the Complaint, there was not extreme or outrageous conduct. Maynard had alleged that his employer had spread false allegations about him stealing tools, kept him on administrative leave, and refused to communicate with him. The Court found that even if the employer did those acts and was driven by malice, those acts were not sufficiently atrocious to sustain a claim of intentional infliction of emotional distress. The Court noted that in the workplace false accusations, inadequate investigations, humiliating treatment, and abuse of authority generally do not amount to outrageous or atrocious conduct sufficient to state a plausible intentional infliction of emotional distress claim. Maynard has other claims that were not dismissed in the case but the intentional infliction of emotional distress claim was dismissed.

For employers, while this decision helps clarify the limits of legal claims an employee may make in alleging he was unfairly fired, continuing to treat employees with fairness and dignity throughout the employment process, including termination of employment, it is extremely appropriate. This is so not only because it is the right thing to do, but it also helps maintain the remaining employee’s morale and therefore productivity while lessening the likelihood of having to spend time and money defending an employment law suit from a fired employee.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Friday, May 8, 2015

Collaborative Law is a Better Alternative to the Traditional Divorce Process

A traditional divorce through the court system is based on an adversarial process in which each party is entrenched in their respective positions, leaving the divorce judge the responsibility of solving their problems. The traditional divorce system is outdated and relatively ineffective, leaving the divorcing couple unsatisfied with the process. The traditional divorce process is slow, costly and results in the parties "airing their dirty laundry" in a public courtroom setting. Before proceeding with a traditional divorce process, a divorcing couple should spend a day in the family/divorce court, observing how the court functions. Most couples who do so, quickly learn that the traditional divorce process is not for them.

The Collaborative Law process offers a solution to the traditional divorce process. Under the Collaborative process, the adversarial and positional system is replaced with an interest-based, problem solving process. Instead of focusing on each spouses positions, the Collaborative professionals help the parties move beyond the reasons why they are divorcing and focus on the interests and needs of each party. Through a process of problem solving, brainstorming, and creative thought processes, the parties are able to find solutions and come to a common understanding and agreement as to their respective interests.

If you have any questions regarding the collaborative process as an alternative to the traditional divorce process, please contact and attorney at Hamblett & Kerrigan.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Monday, May 4, 2015

UNWED COUPLES’ PROPERTY RIGHTS AND IN-LAW APARTMENTS

Unwed couples may live together for many years, have children together, and share property. It could be that one or both of them had a divorce in the past, are widowed, or one of them may receive more benefits from a prior spouse’s retirement plan, pension, or other benefits so long as he or she does not remarry. However, upon a breakup, no matter how long they live together they will not have the same rights to a property division as married couples.

New Hampshire does not recognize common law marriage, except for the limited exception provided under New Hampshire Statute RSA 457:39 which only apply to people’s cohabitating, acknowledging each other as husband and wife, and reputed to be such for three years until the decease of one of them. In other words, the common law spouse statute in New Hampshire only applies to the right for one to claim a spousal share to the estate of the deceased partner. It has nothing to do with a break up between domestic partners. Further, the common law statute only applies to the probate estate of the deceased. For example, if the deceased domestic partner has a local adult daughter with whom he kept his bank accounts and real estate in joint tenants with rights of survivorship or otherwise set up such to be automatically transferred to the daughter upon his death, those assets would not be probate assets since they did not stay in his name after his death and therefore, his domestic partner, even if she was the common law spouse, would have no right to claim an interest in those bank accounts and real estate unless she had a claim to those assets on her own and not solely as the common law spouse.

That statute requires the domestic partners to acknowledge each other as husband and wife; it is not enough to merely cohabitate together. One could also imagine the sad situation of two widowed individuals living together in one of their homes and the homeowner moving into a nursing home for the last several months of his life with no chance of ever moving back home and thereafter passing away. The question would arise under the statute as to whether or not the domestic partner still living in the house would have any rights to the house since for the last six months they were not cohabitating, even through no fault of their own for three years, because one of them had to be in a nursing home. However if a domestic partner has provided an improvement in real estate it is possible that she may have some claim to the real estate even though her name in not on the deed. For example, Jill upon moving into Jack’s house, spends $100,000 of her own money to make improvements (remodeling kitchen, repairing roof, replacing windows, updates exterior of house, and further interior remodeling) that increases the value of the house by $100,000. Jack dies with the house solely in his name without them being married. If the Executor of Jack’s estate was to claim that she is entitled to sell the house without giving Jill any monetary benefit from the increased value of the house, there can be an argument made by Jill of a constructive trust or other such equitable claim wherein she would say that the heirs of Jack would be unjustly enriched by her contribution of $100,000 worth of improvements in Jack’s house if she was not paid. Those heirs may respond that for some period of time, Jill lived in Jack’s house rent free which provided her back value for her contribution and that Jill made a gift of those monies to Jack and therefore should not be able to get it back. All those issues would need to be resolved in Court. Jill’s $100,000 contribution, if it can show a direct monetary improvement in the house, could be considered differently than if she was on a monthly basis contributing towards a mortgage on Jack’s house with that amount being similar to what she might otherwise pay in rent to live elsewhere.

The same constructive trust arguments are possible in the area of in-law apartments. For example Jill and Jack own a home and decide to have Jill’s widowed mother move in and Jill’s mother uses her monies to create an in-law apartment with both the mother and the couple hoping that the relationship will work and keep Jill’s mother out of assisted living. The mother will need to appreciate that her daughter and son-in-law have their own lives and perhaps while the mother-in-law may enjoy short visits with her granddaughter she may not enjoy the grandchildren being in the same household. If the mother decides to move out after spending her money on the in-law apartment within the home, the mother may make a claim that her daughter and son-in-law would be unjustly enriched by the in-law apartment. That argument may have more merit to a judge if the daughter and son-in-law thereafter rented the in-law apartment to take in income. It is also possible that the daughter and son-in-law are unwilling to have anyone else in their household and therefore the in-law remains vacant. As such, the in-law apartment is not producing income and increases the property taxes the daughter and son-in-law have to pay on the house thereby not benefiting them until and unless they sell their home years later.

I have seen these realities in litigation and it may very well be tough for the mother to be able to get her money back if that living arrangement does not work out. With that said, I have seen others of these arrangements last for the years, keeping the mother out of assisted living for a substantial period of time because the daughter and son-in-law help her as part of the extended family. The mother should make sure that her finances allow for a contingency plan because the monies she spends on improvements on her daughter’s house may not easily be reimbursed if the arrangement does not work out and if she does not have enough money for a long-term care in an assisted living facility, she needs to consider that substantial risk. It is possible that the contributions she made to her daughter’s and son-in-law’s house may impact her Medicaid eligibility if she needs to go to a nursing home. She may also find, as with anything else, money buys options such as private pay nursing homes which may be more expensive but provide better care, visiting nurses to her apartment, or other long-term care solutions.

For more information regarding unwed couple breakups, please check out our archived radio program accessible also on our website in which Kevin Rauseo and I discuss that issue in detail in an April 28, 2015 radio program that you can listen to as a podcast directly from our website. The radio show is also available from the radio station’s website at www.wfea1370.com, click “Voices” and then “Law Matters”.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.