2006 Spring, 46. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBar Journal Author - Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2006 Spring, 46.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Volume 47, No. 1, Pg. 46Spring 2006Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBar Journal Author - Attorney Charles A. DeGrandpreA seldom encountered issue in New Hampshire [the line between church and state] was before the Court in Berthiaume v. McCormack, The Roman Catholic Bishop of Manchester, A Corporation Sole, opinion issued February 14, 2006. The case before the Court involved a tug of war between the parishioners of a Nashua parish of the Catholic Church, St. Francis Xavier, who petitioned the superior court for a constructive trust upon the Bishop of Manchester, claiming that the Bishop had no authority to close [" to suppress" in the lingo of Canon Law] the parish because the special legislation in 1901 establishing the Roman Catholic Bishop of Manchester as a corporation sole, obligated the Bishop "to hold St. Francis Xavier property in trust for the use and benefit of its parishioners." The Bishop cited the First Amendment to the Federal Constitution and argued that Canon Law gave the Bishop the authority to suppress St. Francis Xavier, as well as to sell the parish property in question, and that these actions of the Bishop "may not be reviewed by a civil court."1

Interestingly, New Hampshire took a different approach then had the United States Supreme Court in an earlier case, Jones v. Wolf,2 which would have approved the test put forth by the petitioners. The New Hampshire Court acknowledged that the Jones Case would have allowed civil courts to examine certain religious documents, such as a church constitution, in making decisions "for settling church property disputes." Instead, the New Hampshire Supreme Court ruled

In light of these cases and due to the fact that the [U.S.]Supreme Court has left it to the States to 'adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters,'. . . .we will first consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use of disposal of church property. We reserve our opinion as to what level of deference should be given to church pronouncements regarding the proper interpretation of those documents.

A unanimous Supreme Court, speaking through Chief Justice Broderick, concluded its lengthy opinion by rejecting the parishioners request for a constructive trust. The Court ruled that the Bishop had authority to suppress the parish in accordance with church law, concluding that it would not "consider religious documents" in deciding religious property issues so as "to avoid any perception of entanglement, where possible."

The excruciating issue of the rights of parents vs. other family members over the physical custody of minor children was before the Court In The Matter of Jeffrey G. and Janette P., opinion issued January 27, 2006. The parents of the two children were divorced in 2002, after a hotly contested three day hearing in the family division of the superior court at Salem, New Hampshire. The custody battle continued long after the divorce, the Court finding that the "parents' acrimonious and volatile relationship continued to deteriorate and reportedly had a negative impact on all parties, including the children." In the October 2004, the family court found that the children were "in grave danger remaining with their parents" and ordered that the children reside with their aunt in Maine, the fourth custodial change in four years. The Supreme Court found that while the best interests of the child guided all custody decisions in New Hampshire, the superior court's jurisdiction to award custody is purely statutory and the statutory provision is controlling. Looking closely at RSA 458:17, VI, which authorizes custody in a divorce case being awarded to a grandparent or a stepparent in certain circumstances, the...

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