Summary
In Lund v. Lund, 96 N.H. 283, this court held that the decree in such cases is to be considered in its entirety and that provisions relating to the wife and children are not to be considered separate unless made so by the decree.
Summary of this case from Angwin v. AngwinOpinion
No. 3932.
Decided July 6, 1950.
Where the libelee was ordered to make weekly payments to the libellant and also to provide a monthly allowance to their minor child plus her tuition the decree is not limited in time by the statute (R. L., c. 339, s. 16) since considered in its entirety "children are involved" in the decree.
PETITION, to have defendant adjudged in contempt for failure to comply with a divorce decree awarded the plaintiff ordering the defendant to pay weekly payments for the plaintiff's support. The petition was filed in August, 1949, and alleged failure of defendant to make payments since January of that year. After hearing the defendant was found in contempt and ordered to pay a part of the arrearage of $780 and to continue the weekly payments previously ordered. Defendant's exceptions to the Court's findings and order were reserved and transferred by Grimes, J.
Under the original decree dated December 6, 1945, divorce was decreed to plaintiff, the cause being treatment such as seriously to injure health. Defendant was ordered to pay $25 weekly to the plaintiff and also to pay the tuition of a minor daughter, plus $10 allowance to her monthly until her graduation from school. Certain real estate in the name of plaintiff was disencumbered from all claims of the defendant. The minor child referred to in the decree was at that time eighteen years of age and was attending a business school. While the child was mentioned in plaintiff's libel as a "dependent child" whom the plaintiff was "unable to adequately support," no decree with respect to custody was requested or made.
In June, 1948, upon defendant's motion the weekly allowance for the support of the plaintiff was reduced to $20 "Remainder of decree of December 6, 1945, to remain in effect."
George M. French and Frank B. Clancy, Jr., for the plaintiff.
J. Morton Rosenblum, for the defendant.
The petition for contempt was filed more than three years after the original divorce decree and it is argued by the defendant that the present case is subject to the three year limitation on alimony orders. This question requires a construction of R. L., c. 339, s. 16, and particularly the italicized portion thereof. The statute reads as follows: "ALIMONY. Upon a decree of nullity or divorce, the court may restore to the wife all or any part of her estate, and may assign to her such part of the estate of her husband, or order him to pay such sum of money, as may be deemed just, provided that in cases in which no children are involved, or in which the children have reached the age of majority, said order shall be effective for not more than three years from the date thereof, but such order may be renewed, modified or extended if justice requires for periods of not more than three years at a time; and may compel the husband to disclose, under oath, the situation of his property; and before or after the decree, may make such orders and use such process as may be necessary."
Prior to the passage of Laws 1937, c. 154, there was no time limit or duration affecting alimony payments and the Superior Court could revise or modify an alimony decree at any time. Wallace v. Wallace, 74 N.H. 256; LeBeau v. LeBeau, 80 N.H. 139. This was also true of other provisions of the divorce decree such as allowances for the support of children (Kennard v. Kennard, 81 N.H. 509) or allowance for the education of children (Payette v. Payette, 85 N.H. 297). The 1937 amendment was incorporated in the present statute and was first construed in Bradley v. Bradley, 92 N.H. 70, 71, a case where the parties had no children, as follows: "The effect of the statute is to bring up such orders for reconsideration every three years, but the power of the court to make such orders `as may be deemed just' is in no way limited."
It is contended in the present case that there is no order for custody and support of the minor and that the order for the educational support of the child was a collateral one which is not dependent on or related to the alimony order for the plaintiff. Considering the decree as a whole, this appears to be a strict construction of it but, in any event, the real question is whether "no children are involved" within the meaning of R. L., c. 339, s. 16. While the usual decree relating to children relates to both custody and support (Paille v. Paille, 91 N.H. 249), "children are involved" within the meaning of the statute if the decree pertains to either custody or support of the children. The decree is to be considered in its entirety and the provisions relating to the wife and the children are not to be construed as separate and distinct unless specifically made so by the terms of the decree itself. Where the decree affects both wife and child, the three year time limit is not effective. If the decree relates to the wife alone, it is effective, "for not more than three years from the date thereof" by the terms of the statute. Within that time or "at the end of the statutory period" (Bradley v. Bradley, supra) the burden is on the beneficiary of the order to bring it up for reconsideration.
Since the decree in this case involved children it was not limited in time by the statute and remains in effect until modified or cancelled by another decree.
Exceptions overruled.
BLANDIN, J., did not sit: the others concurred.