Opinion
No. 3380.
Decided January 5, 1943.
PETITION, for alimony. The parties were divorced in 1931. A separate settlement of property rights and alimony was entered into in writing, but was not made part of nor incorporated in the decree of divorce. Differences arose in the interpretation of the agreement and the matter was brought before the court at different times. Hearings were had by a master, and presumably recommendations made and orders entered thereon. After three hearings, the matter was again referred to the same master with an order to consolidate, in one report, all facts found as the result of all the hearings. After the filing of this consolidated report and certain rulings made thereon by the court, libelee filed a bill of exceptions which was allowed by Connor, J.
William H. Sleeper, for the libelant.
Sewall, Varney Hartnett, for the libelee.
The bill of exceptions relates only to the construction of the private agreement between the parties. Whether a plaintiff is entitled to alimony is a question of fact. Cross v. Cross, 63 N.H. 444, 446. While the agreement may be relevant to the issue, it is not controlling, and is only one of many factors of bearing. The construction of the agreement will become immaterial if alimony is denied, although the agreement is construed according to the plaintiff's claim. The right to alimony not having been determined and not being shown to be dependent upon the construction of the agreement, action upon it at this stage of the proceeding is inexpedient. Lemire v. Haley, ante, 10, 358, and cases cited.
Case discharged.