Opinion
No. 4144.
Decided December 2, 1952.
Where the petitionee in legal separation proceedings raised no objection to the jurisdiction of the court but personally requested a continuance after being served with process the fact that he filed no formal appearance did not affect the jurisdiction of the court over the parties and the subject matter and to issue temporary orders for support and custody. Since the court acquired jurisdiction in the original proceedings it had continuing jurisdiction to modify all temporary orders and to hear the case upon its merits. However some reasonable notice to the parties of such hearing is a requisite to final judgment. The fact that no objection was made, to the temporary orders of the court for support and custody, by the petitionee was not inconsistent with his right to reasonable notice and an opportunity to be heard on the merits.
PETITION, for legal separation with prayers for temporary relief served upon the petitionee in hand. The Court set a hearing on the petition for temporary allowance for January 29, 1947. Petitionee, upon receiving notice of the hearing the previous day, then notified the clerk of court by letter that he would be unable to appear, asked that the hearing be set for a later date and requested that he receive one week's notice at his employment address in Massachusetts of such later hearing. As this letter was received on the day of the hearing too late to change the date of hearing, it was held as scheduled. An order for temporary support of the petitioner and the children was then entered and the petitionee was notified of the terms of the order and also advised that he could have a hearing on the modification of the order upon notice to the clerk of court. The petitionee made no subsequent request for a hearing or modification of this temporary order. In the April term 1949 the petition, having been pending for two years, was "dismissed without prejudice" pursuant to Superior Court rule 132, 93 N.H. appendix. The petitionee was not notified of the dismissal. Subsequent developments appear from the reserved case which is hereafter quoted.
"In another term of court, to wit, the October term, 1949, the petitioner filed a motion to strike off dismissal on December 5, 1949, which was filed with the clerk with a letter explaining the situation and suggesting that, if it was necessary to notify the petitionee of the pending motion, the petitioner should be notified. The motion and letter were taken up with the Presiding Justice on December 5, 1949, who made the following order: `Motion granted. Libellant's counsel will forward forthwith to libelee by registered mail return receipt requested a copy of this motion with order of Court thereon.' The Court's order was complied with by the petitioner. The petitionee entered no appearance.
"A hearing was held on July 25, 1950, on the merits of the petition for legal separation, which was granted to the petitioner and a final decree entered August 1, 1950, all without any notice to the said Henry S. Mauzy as no appearance had been filed by him or on his behalf.
"Appearing specially, by motion entered in the October term, 1951, the said Henry S. Mauzy moved and prayed that the granting of the motion to strike off dismissal and the decree of legal separation and all orders thereunder be vacated. After hearing counsel on this motion, the court, on January 15, 1952, entered the following: `Motion denied.' To this ruling and decree, the said Henry S. Mauzy takes exception." All questions of law, raised by the foregoing exception, were reserved and transferred by Wescott, J.
Hughes Burns and Robert E. Hinchey (Mr. Hinchey orally), for the petitioner.
John W. Perkins and Everett P. Holland (Mr. Holland orally), for the petitionee.
After the petition for legal separation was filed in court and served on the husband, the court had jurisdiction of the parties and the subject matter (R.L., c. 339, ss. 4, 5) and had statutory authority to issue temporary orders of custody, allowance and restraint. R.L., c. 339, ss. 14, 25. The petitionee did not question the jurisdiction of the court and filed "no brief statement or special plea." Superior Court rule 21, 93 N.H. appendix. In effect he recognized the case as being in court, requested a continuance and thereby made a general appearance. See White v. White, 60 N.H. 210; anno. 81 A.L.R. 166. The fact that the petitionee did not file a formal appearance blank with the clerk of court does not change this result. He had the statutory right to appear without counsel if he chose to do so and could defend the petition for legal separation in his own behalf. R.L., c. 381, s. 1; Lamarre v. Lamarre, 84 N.H. 441, 444.
Since the court acquired jurisdiction of the separation petition in the first instance, proceedings subsequent to the order for temporary allowance and custody were a continuation of the original litigation. Cowles v. Cowles, 80 N.H. 530; Bussey v. Bussey, 94 N.H. 328, 330. Jurisdiction of the original proceedings carried with it the authority to modify the original orders and to hear the case on its merits on such notice as was reasonable under the circumstances. Vezina v. Vezina, 95 N.H. 297; R.L., c. 339, s. 12. While the Trial Court has broad authority to determine the nature and extent of notice in matrimonial causes as the circumstances of the case may require (Chase v. Chase, 61 N.H. 123; R.L., c. 339, s. 8), notice and an opportunity to be heard on the merits cannot be denied altogether. Cf. Webster v. Webster, 95 N.H. 416; Restatement, Judgments, s. 6, comments (a), (f).
Whether the dismissal without prejudice of the petition for legal separation (Easter v. Easter, 75 N.H. 270) for lack of prosecution by the petitioner (Superior Court rule 132, 93 N.H. appendix) calls for notice to the opposing party is a relatively minor aspect of this case. Assuming, without deciding, that it was not necessary (3 Nelson, Divorce and Annulment (2d ed.) s. 27.02) we are faced with the proposition that the hearing on the merits was held without notice to the petitionee. While personal service such as would give jurisdiction in a new proceeding was not required, some reasonable notice of the hearing on the merits was a requisite to a final judgment issued under the continuing jurisdiction of the court. Hubley v. Goodwin, 90 N.H. 54, 56; anno. 168 A.L.R. 232. Although the petitionee made no objection to the temporary orders of the court, this was not inconsistent with his right to notice and an opportunity to be heard on the merits. R.L., c. 390, s. 14; I Merrill, Notice (1952), ss. 523, 531.
The petitionee, at the present time appearing by counsel, now argues only that "the petitionee is entitled to his day in court and to reasonable notice as to when that day shall be." For that purpose the decree of legal separation is vacated and the order is
Exception sustained.
All concurred.