Opinion
No. 3515.
Decided June 28, 1945.
The jurisdiction of the Superior Court over divorces and legal separations is entirely statutory. In a petition for legal separation, since R. L., c. 339 contains no provision for temporary allowances to be paid a husband by the wife for his support, none can be ordered. The Superior Court has ample and unqualified jurisdiction to grant injunctions. In divorce or legal separation matters, where each of the spouses claims the right to the use of an automobile because of their asserted ownership therein, the Superior Court has jurisdiction to determine its use by injunction during the pendency of the suit according to the respective needs of the parties.
PETITION, for legal separation. Among the prayers of the petition was one that the automobile used by the plaintiff be decreed to be her property with another that the defendant be enjoined from interfering with the use of the car by her during the pendency of the action. June 23, 1944 a hearing was had before a master on the question of the temporary use of the automobile. The master found that the Chrysler sedan was a family car, paid for with property and earnings of both parties, and recommended that the defendant be given the temporary use. July 18, 1944 in a supplemental report the master found that at the time of the hearing counsel for both parties agreed that the question of the ownership of the Chrysler sedan was not involved, that the only question before the master was, who in equity should have the temporary use of the car. On that same day the reports were accepted by the Court, who ordered that the plaintiff deliver possession of the automobile to the defendant and refrain from interfering with his use and possession pending a disposition of the case on the merits. To this order, the plaintiff seasonably excepted.
A bill of exceptions was allowed by Young, C. J.
J. Morton Rosenblum (by brief and orally), for the plaintiff.
McLane, Davis Carleton and Robert P. Bingham (Mr. Bingham orally), for the defendant.
The position of the plaintiff is that the court had no jurisdiction to give temporary use of the car to the husband. Consent of course does not confer jurisdiction of a subject matter. Mansfield v. Holton, 74 N.H. 417.
It is also true that the power of the court to grant divorces and legal separations is entirely statutory. Jones v. Jones, 91 N.H. 377. See, also, Baker v. Baker, 90 N.H. 307, and Salta v. Salta, 80 N.H. 218. The statutes make no provision for a temporary allowance to be paid to the husband by the wife for his support. R. L., c. 339, ss. 14, 25. Accordingly, none can be ordered.
However, the petition alleges that the plaintiff purchased the Chrysler sedan with her personal earnings. While no answer has been filed by the defendant, it is clear from the record that on the basis of turning in the first of the three cars owned between the parties, which first car was his property, and the custom of giving his weekly earnings to his wife, he claims to be a part owner of said car at least. He joins issue with the allegations of the plaintiff concerning ownership of it.
"No jurisdiction can be more ample and unqualified than that of . . . [the Superior Court] in cases of injunction." Wason v. Sanborn, 45 N.H. 169, 171, a petition for a temporary injunction. This case is cited on this point in Hatch v. Hillsgrove, 83 N.H. 91, 93. The Statute expressing this authority is as follows: "The court . . . may grant writs of injunction whenever the same are necessary to prevent fraud or injustice." R. L., c. 371, s. 2. In an action of divorce or legal separation, where each of the spouses on the ground of entire or partial, legal or equitable ownership claims the right to the use of an automobile formerly driven in the family, the Superior Court has jurisdiction to determine its use by injunction during the pendency of the suit according to the respective needs of the parties.
Exception overruled.
MARBLE, C. J., was absent: the others concurred.