Opinion
No. 4067.
Decided December 4, 1951.
The authority of the Superior Court upon a decree of nullity to order alimony to the wife and to make an adjustment of property rights upon an equitable division is conferred by statute (R.L., c. 339, s. 16) and is not affected by the fact that the marriage was void ab initio. However, in determining what adjustment justice may require, in such case, the Court should consider the fact that the marriage was void ab initio together with any other pertinent circumstances. A temporary order for support upon the wife's petition for separate maintenance is enforceable although the existence of the marriage is in dispute and it is subsequently held void.
PETITION, for annulment of a marriage entered into by the parties in 1935. Certain issues were considered by this court in the decision reported in 96 N.H. 494, where other facts are stated. Thereafter the defendant moved that the Trial Court determine whether any part of her estate in the plaintiff's possession should be restored to her, any part of his estate be assigned to her, whether he should be ordered to pay her any sums of money, and whether he should be ordered to pay arrears under a temporary order for support entered before the previous transfer. The motion was denied subject to the defendant's exception, by order stating that "the Court is of the opinion it is without authority to order alimony and/or support in cases where the parties were not lawfully married." An annulment was thereupon decreed upon the ground that the defendant's husband by a prior marriage was alive at the time of her marriage to the plaintiff. The decree provided that "the bonds of matrimony are null and void ab initio . . ."; and the temporary order was dissolved.
The defendant's exception to denial of the motion was reserved and transferred by Wheeler, J.
John W. Perkins and Everett P. Holland (Mr. Holland orally), for the plaintiff.
William H. Sleeper and Wayne J. Mullavey (Mr. Mullavey orally), for the defendant.
The defendant's motion was erroneously denied upon the ground that the court was without authority to make the requested orders in a case where the marriage was void ab initio. By the early statute of 1791, marriage by a party knowing a former spouse to be alive was made a cause for divorce; and the court was authorized to enter a decree restoring or assigning property to the wife in such a case as in cases of divorce for other causes, without distinction. 5 N.H. Laws 732. No change was made in the authority of the court when jurisdiction to enter a decree of nullity was recognized, and marriages solemnized in this state where either party had a former spouse living to his or her knowledge were declared to be void without legal process. R.S. (1842) c. 148, ss. 1, 2; Heath v. Heath, 85 N.H. 419, 431. R.L., c. 339, s. 16, expressly confers authority "upon a decree of nullity. . ." to order the wife's estate restored, and to assign to her such part of the husband's estate, or to order him to pay such sum of money, as may be deemed just. The applicability of the statute in a case arising out of a void marriage was expressly recognized in Bickford v. Bickford, 74 N.H. 448.
The authority of the court derives from the statute, and is in no way made to depend upon the existence of a marriage which was merely voidable, rather than void. See Stapleberg v. Stapleberg, 77 Conn. 31, 35; Heath v. Heath, 85 N.H. 419, 432. Common law principles which might produce a different result do not apply. See Schouler, Marriage, Divorce, Separation Domestic Relations (6th ed.) s. 1166; Keezer, Marriage and Divorce (2d ed.) s. 187.
The temporary order for support was properly entered upon the defendant's petition for separate maintenance. R.L., c. 339, s. 31. When it was entered, the existence of the marriage was in dispute, and no question of the validity of the order was then raised. See anno. 110 A.L.R. 1283. The order remained in effect until dissolved, and the plaintiff might not rightfully cease payments without judicial relief from the order. Eaton v. Eaton, 90 N.H. 4, 8. The authority of the court to require compliance with the order is not lacking.
The defendant is entitled to be heard upon her motion, and to such relief as the court "may think just and reasonable; `all circumstances duly considered.'" Sheafe v. Sheafe, 24 N.H. 564, 568; Baker v. Baker, 90 N.H. 307, 309. Alimony is commonly regarded as "an allowance to the wife upon the termination of the marital relation by divorce." Wallace v. Wallace, 75 N.H. 217, 218; Kennard v. Kennard, 87 N.H. 320, 327. But it is also understood to include as an element for consideration, the "adjustment of property rights upon an equitable division." Baker v. Baker, supra, 309. In the determination of what adjustment justice may require in this case, the circumstance that the marriage was void ab initio is a circumstance properly to be considered by the Trial Court, together with any other pertinent circumstances disclosed. Cf. Hayes v. Rollins, 68 N.H. 191. On the other hand justice may be thought to require appropriate provision in the plaintiff's favor because of property brought by her to the purported marriage, or contributions thereafter made toward the joint acquisition of property by the parties. Cf. Cross v. Cross, 63 N.H. 444, 446. Whether provision should be made for other reasons rests in the sound discretion of the court, exercised in the light of what the, evidence indicates "may be . . . just." R.L., c. 339, s. 16, supra; Kennard v. Kennard, 81 N.H. 509.
Exception sustained.
All concurred.