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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2007-818 IN THE MATTER OF JOHN SALESKY AND JACQUELINE SALESKY Argued: September 11, 2008 Opinion Issued: October 8, 2008 Daniel E. Donovan, III, of Nashua, on the joint brief and orally, for the petitioner. Lucinda Hopkins, of Manchester, by brief and orally, for the respondent. Valerie C. Raudonis, of Nashua, on the joint brief, for the co-guardians. DALIANIS, J. The respondent, Jacqueline Salesky, appeals the final decree in her divorce from the petitioner, John Salesky, which was recommended by a Marital Master (Forrest, M.) and approved by the Superior Court (Hampsey, J.). We affirm. The record supports the following facts. The parties married in 1983, when the petitioner was fifty-five and the respondent was thirty-six. At that time, the parties were municipal employees living in Manchester. The petitioner retired in 1991. In the spring of 2003, the respondent voluntarily left her last position because she was planning to separate from her husband and move to Florida to be near her daughter.

On August 31, 2003, the petitioner suffered a stroke, which resulted in some loss of speech and memory. In December 2003, the petitioner named the respondent as co-trustee and co-beneficiary of his trust and executed separate durable powers of attorney for healthcare, property and financial matters, which named the respondent as his agent. In preparation for this estate planning, the petitioner was examined by Dr. Phat Nguyen, who opined that he was "competent to make his own decisions in all regards." Following the petitioner's stroke, the respondent disbursed significant cash assets. For instance, she gave her daughter the entire amount of a $136,000 settlement check that had been made payable to the petitioner and the respondent. She also gave her daughter $38,924 between October 2002 and October 2003, paying most of this sum after the petitioner had his stroke. Also, shortly after the petitioner suffered his stroke, he discovered that $75,000 that had been in a joint account had been depleted to approximately $25,000. In early October 2004, the petitioner left the respondent to live with his brother and sister-in-law, Edward and Carol Salesky (the Saleskys). Precipitating this separation was an altercation during which the respondent yelled at the petitioner: "John, I don't know what I'm going to do with you, I think I'm going to have to put you in a nursing home." On October 18, 2004, the petitioner filed an ex parte petition seeking a divorce on the ground that irreconcilable differences had caused the irremediable breakdown of the parties' marriage. The respondent objected, seeking to dismiss the petition on the ground that the petitioner was not mentally competent to bring it. In April 2005, the petitioner was referred for a full psychiatric evaluation based upon his counsel's concern that he was not mentally competent to proceed with the divorce. According to the report of the evaluation, the petitioner demonstrated deficits in a number of areas of neuropsychological functioning, including his ability to understand and recall information he had heard or read, and his ability to remember. The psychiatrist recommended, among other things, that the petitioner "receive assistance when making major decisions regarding his living situation, medical, and legal or fiscal issues in order to protect his interests." The Saleskys filed a petition for guardianship, which the probate court granted on August 11, 2005. The probate court appointed them as coguardians over the petitioner's person and estate. The court rejected the respondent's implied request to be appointed guardian, finding that the parties' "marital status [was] in the thro[e]s of dissolution" and that appointing the respondent as guardian presented "a clear conflict of interest." On October 12,

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2005, the superior court denied the respondent's motion to dismiss the petitioner's divorce petition on the ground that it was moot. In November 2005, the probate court denied the respondent's motion to remove the co-guardians, but agreed to appoint a guardian ad litem (GAL) to investigate their relationship with the petitioner. In a report filed on January 2, 2006, the GAL reported that the co-guardians were acting in what they perceived to be the petitioner's best interests, that the petitioner was comfortable with their care, and that there was nothing "unusual" in the relationship between the petitioner and the co-guardians. Following its receipt of the report, the probate court denied the respondent's motion for partial reconsideration of its November 2005 order, finding, in part, that her assertion that the co-guardians had exercised undue influence over the petitioner "lacks credible foundation." The probate court denied the respondent's later motion to reconsider this order and for a hearing on undue influence, which the respondent then appealed to this court. While the respondent's appeal of the probate court orders was pending, the divorce action was stayed. In a November 2006 order, we lifted the stay of the divorce action and affirmed the probate court, holding that it had "sustainably exercised its discretion in denying the `motion to reconsider and for hearing on undue influence,' and in deciding the motion for partial reconsideration on the basis of offers of proof." The parties' divorce action was heard over three days in June 2007. On the first day of the hearing, the court granted the petitioner's motion in limine to exclude evidence that the co-guardians had exercised undue influence over him. Following the hearing, the court granted the petition for divorce, ruling that the co-guardians had the authority to maintain the divorce action on the petitioner's behalf, and that irreconcilable differences between the parties had caused the irremediable breakdown of their marriage. The respondent moved for reconsideration, which the trial court denied, and this appeal followed. On appeal, the respondent first argues that the trial court erred when it ruled that the co-guardians had the authority to maintain the divorce action on the petitioner's behalf. In so ruling, the superior court interpreted the probate court's order to confer implied authority upon the co-guardians to maintain the divorce action. The interpretation of a court order is a question of law, which we review de novo. See Edwards v. RAL Auto. Group, 156 N.H. 700, 705 (2008). In construing a court order, we look to the plain meaning of the words used in the document. Id. We construe subsidiary clauses so as not to conflict with the primary purpose of the trial court's decree. Id. As a general matter, a court

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decree or judgment is to be construed with reference to the issues it was meant to decide. Id. Here, among the issues the probate court was asked to decide were whether the petitioner had the capacity to exercise the right to marry or divorce and to initiate, defend or settle lawsuits. In its final decree, the probate court specifically found the petitioner incapable of exercising those rights, among others. Further, in the paragraph that removed those rights from the petitioner, the probate court expressly granted the co-guardians the authority to exercise those rights on his behalf. This paragraph reads: "So far as necessary for, and complementary of, exercise and fulfillment by the co-guardians over the ward's person, powers and authorities conferred, and the duties and obligations imposed upon them, the ward is found incapable of exercising the [following] right[s]." This paragraph directly links the rights removed from the petitioner to the "powers and authorities conferred" and "duties and obligations" imposed upon the co-guardians. Pursuant to this paragraph, the rights removed are those that make it possible for the co-guardians to exercise their duties and obligations

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