Opinion
No. 4339.
Submitted September 7, 1954.
Decided September 30, 1954.
The award of certain property and funds to the wife in divorce proceedings was not inequitable or excessive as a matter of law under the circumstances of her contributions toward the accumulation of the property and the absence of a support order for either the wife or the minor child whose custody was awarded to the wife.
LIBEL FOR DIVORCE, alleging treatment seriously injurious to health (R. L., c. 339, s. 6 V) to which the libelee by way of answer filed a cross-libel on the same ground. After hearing on the merits the Court on October 30, 1953, decreed a divorce to the libelant and awarded the custody of a minor child to her. The Court made the following decree relating to alimony and division of property: "The real estate owned by the parties jointly, and located in East Swanzey, in said County (Cheshire) consisting of approximately forty-seven acres of land with the buildings thereon, awarded to the libelant as her sole property and disencumbered of all right and claim of the libelee, together with all furniture, fixtures and farm machinery. The libelee ordered to pay to the libelant the sum of five hundred dollars forthwith, which represents her approximate share of certain farm machinery and tools sold by the libelee. . . . No order for support of the libelant is made at this time, as she appears to be gainfully employed."
Libelee's bill of exceptions as amended in January and June of 1954 was allowed and transferred on July 5, 1954, by Wheeler, C. J.
Homer S. Bradley for the libelant, furnished no brief.
Earl Brennan for the libelee, furnished no brief.
The absence of a brief from the appealing party makes it difficult to ascertain what he claims to be the alleged error in the Court's decree. The record discloses only that the libelee considers the decree "inequitable" and the award "excessive." We have considered the whole record in light of the general claims advanced. R. L., c. 369, s. 13; Musgrove v. Parker, 84 N.H. 550, 552.
The real estate which was owned by the parties jointly was purchased in 1943 for $4,500. There was evidence from which it could be found that the libelant had contributed $1,000 toward the purchase price and that during their marriage she had contributed approximately $4,900 for the support of the family. This latter amount was accumulated by the libelant by teaching, "baby-sitting" and two small inheritances. While the children were in school they were mainly self-supporting but what help they did receive came from the mother rather than the father. At the present time there is a mortgage of approximately $500 on the jointly owned property. The libelee has a $2,000 life insurance policy in which his wife is not named as beneficiary. The libelee was capable of earning approximately $67 a week.
Where the wife has contributed to the accumulation of property of her husband by her funds and industry the Court is warranted in granting a larger award in her favor. Cross v. Cross, 63 N.H. 444; 2 Nelson, Divorce and Annulment (2nd ed.) ss. 14.33 and 14.46. This is so whether the award takes the form of a support order, a lump sum payment or a division of property. Malbouf v. Malbouf, 97 N.H. 342. Our statutes provide that the amount of alimony, the method of its payment and the form in which it will be awarded are determined by the Trial Court. R. L., c. 339, ss. 16-18; Ballou v. Ballou, 95 N.H. 105. One of the elements for consideration in awarding alimony in this jurisdiction is the equitable adjustment of property rights in the property of spouses. Fowler v. Fowler, 97 N.H. 216, 218; Daniels v. Barker, 89 N.H. 416, 423. In the absence of any minimum or maximum standards for determining the amount of alimony it necessarily follows that a large measure of discretion must reside in the Trial Court. Barber v. Barber, 92 N.H. 523; Ballou, v. Ballou, supra.
In this state divorce proceedings are not considered punitive. "Divorce is not punishment of the offender, but relief to the sufferer." Robinson v. Robinson, 66 N.H. 600, 610. In determining the amount of alimony, however, the conduct of the guilty party is not conclusive but is an element to be considered under all the circumstances. While any experienced trial attorney knows that the completely innocent spouse is frequently a myth, it is recognized that the more innocent of the two is entitled to favorable consideration in the division of their property and funds. Malbouf v. Malbouf, supra. The evidence in this case clearly indicated that the wife was entitled to a divorce. Under the circumstances the amount of the property and funds awarded her was reasonable and proper, particularly in view of the fact that the decree made no order for support of the libelant or her minor child and that the husband had spent most of a $4,000 inheritance while the divorce proceedings were pending. We find no error of law or abuse of discretion in the Court's findings and rulings in this case and the order is
Exceptions overruled.
All concurred.