In re Mallett
163 N.H. 202
| N.H. | 2012Background
- Mother and father were in a long-term, nonmarital relationship, with two children.
- They acted as a married couple (rings, shared surname, property, businesses) but never formalized a marriage.
- Mother filed a petition for divorce on March 2, 2009; father moved to dismiss due to no marriage.
- Trial court allowed addressing parenting, child support, and equity; mother was allowed to amend to raise property/asset claims.
- Mother moved to amend and seek attorney’s fees; orders granted; father sought reconsideration or interlocutory transfer.
- Interlocutory transfer led to questions on family division jurisdiction over assets, health insurance, real estate, and related fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Marriage by estoppel and divorce authority | Mother contends estoppel recognizes marriage for divorce purposes. | Father argues estoppel does not create a valid marriage; no divorce authority without marriage. | No marriage by estoppel; family division cannot grant a divorce. |
| Equitable claims between unmarried parents | RSA 490-D:3 gives equitable powers to resolve assets and related claims in the family division. | Equity powers limited to matters within family division jurisdiction; cannot adjudicate non-child assets. | RSA 490-D:3 grants only limited equity powers; not authority to partition real estate or divide assets for unmarried parties. |
| Attorneys' fees in parenting proceedings between unmarried parties | Divorce exception (Hampers) may authorize fees; party argues for fee shifting in parenting actions. | Hampers does not apply to unmarried parenting cases; narrow the exception. | January 23, 2011 fee award reversed; divorce exception not extended to unmarried parenting actions; potential for bad-faith findings under Harkeem remains. |
| Equal protection/potential classifications | Argues unequal treatment of married vs. unmarried individuals lacks rational basis. | Not adequately developed; not addressed on the merits. | Court declines to address equal protection claim. |
Key Cases Cited
- Joan S. v. John S., 121 N.H. 96 (1981) (limits on common-law marriage; equity available but not a default divorce-like property settlement)
- O’Neil v. O’Neil, 159 N.H. 615 (2010) (equity powers of family division tied to proper subject-matter jurisdiction)
- Hampers & Hampers, 154 N.H. 275 (2006) (divorce exception to award fees; limited applicability)
- Bedard v. Town of Alexandria, 159 N.H. 740 (2010) (attorney’s fees generally; carve-outs for exceptions)
- Gosselin v. Gosselin, 136 N.H. 350 (1992) (reasonableness standard for fees under certain awards)