Opinion
No. 5374.
Argued December 7, 1965.
Decided February 28, 1966.
1. The denial of support to the wife under the Uniform Reciprocal Enforcement of Support Act by the court of another jurisdiction, where she resided, for the reason that she refused to accompany her husband to this state was held to be neither res judicata nor determinative of the issue of the wife's abandonment alleged as grounds for divorce by the husband in divorce proceedings here.
2. The civil remedies provided in the Uniform Reciprocal Enforcement of Support Act (RSA ch. 546 (supp)) are in addition to and not in substitution for any other remedies.
Plaintiff petitioned for a divorce from his wife upon the grounds of abandonment and refusal to cohabit. RSA 458:7 IX (supp); Laws 1957, 67:1. The plaintiff moved at the hearing that the issue of abandonment was res judicata by virtue of decree in 1962 in a prior action between the parties under the provisions of the Uniform Reciprocal Enforcement of Support Act. RSA 546:41 (supp); Laws 1959, 271:1. Upon denial of the motion, the petition was heard on the merits and dismissed January 15, 1965. The plaintiff's exceptions to the denial of his motion and to the dismissal of the petition for divorce were reserved and transferred by Keller, J.
In 1960 the parties resided together in Flushing, New York. The plaintiff came to New Hampshire where he obtained employment and since June 1960 has lived in this state with his minor daughter. The wife remained in New York and in 1962 instituted proceedings for support under the Uniform Reciprocal Enforcement of Support Act. RSA ch. 546 (supp). On December 19, 1962 the Court (Grant, J.) issued the following order:
"The petition is denied on the ground that the Court does not believe from the evidence that the Petitionee, Alfonse Salito, absconded or attempted to conceal his whereabouts from the Petitioner, and that Mrs. Salito in effect refused to accompany her husband following a long period of apparent discord between the two.
"The Court denies the petition on the further ground that from the evidence produced it is apparent that Alfonse Salito is making no more than enough money to support himself and the minor child, Linda."
On January 15, 1965 the Court (Keller, J.) dismissed the petition for divorce and "found on all the evidence that the libelant is not entitled to a divorce." The Court reaffirmed its previous ruling that the issue of abandonment by the wife was not res judicata by virtue of the 1962 order which was limited to the duty of support on the part of the husband. The Court also noted that the 1962 order "made no finding as to whether or not Anne Salito had sufficient cause for not going to New Hampshire with her husband."
Hamblett, Kerrigan Hamblett and Robert W. Pillsbury (Mr. Pillsbury orally), for the plaintiff.
Harkaway Barry (Mr. Aaron A. Harkaway orally), for the defendant.
Although the evidence is conflicting, there is support in the record for the finding of the Court that the husband was not entitled to a divorce. The husband can prevail only if his contention is correct that the issue of abandonment by the wife is res judicata because of the order of the Court in 1962 in the proceedings under the Uniform Reciprocal Enforcement of Support Act. RSA ch. 546 (supp). Under that act it is not necessary that the husband flee the jurisdiction, abscond or attempt to conceal his whereabouts. Bourdon v. Bourdon, 105 N.H. 432. The determination of the husband's ability to support his wife or his obligation to support her does not necessarily or automatically determine that the separation of the parties is not consensual, or that either party has cause for divorce, nor does it supplant the statutory grounds for divorce. See State v. Greenberg, 16 N.J. 568; Stubbefield v. Stubbefield (Tex.Civ.App.) 272 S.W.2d 633.
The civil remedies provided in the Reciprocal Enforcement of Support Act "are in addition to and not in substitution for any other remedies." RSA 546:3 (supp); Bourdon v. Bourdon, supra; Annot. 42 A.L.R. 2d 768; Kelso, Reciprocal Enforcement: 1958 Dimensions, 43 Minn. L. Rev. 875 (1959). It was not intended that this act would import into the law of support across state lines the unsatisfactory doctrine of election of remedies. It is true that friction and discord between the husband and wife was of long duration and apparently neither desired a reconciliation. It is true that the wife "in effect refused to accompany her husband" from New York to New Hampshire. But these truths do not solve the problem of who was at fault, or whether the separation was justified or whether the wife's refusal to accompany her husband was justified. Merrill v. Merrill, 85 N.H. 210. We conclude that the dismissal of the divorce petition in 1965 was proper and that the issue of abandonment by the wife was not res judicata by virtue of the 1962 proceeding under the Uniform Act.
Plaintiffs exceptions overruled.
All concurred.