Opinion
No. 3790.
Decided December 7, 1948.
A petition by a libelant for modification of an order for support of a minor child and for alimony in divorce proceedings is a continuation of the original litigation over which the court had jurisdiction and notice to the non-resident libelee of such petition is sufficient when served upon him at his residence outside the state. A non-resident libelee is held to have submitted to the jurisdiction of this court in proceedings by the libelant to modify a divorce decree where he appeared by counsel in the original proceedings and himself signed a stipulation at that time dealing generally with matters concerning such proceedings and invoked the aid of the court to integrate them in a binding decree for his benefit as well as that of the libelant.
PETITION for modification of an order of the Superior Court concerning payment for support of a minor child and alimony for the libelant, in which the libelee claims the court is without jurisdiction to modify its previous decree.
Upon January 3, 1941, a libel was filed in the Superior Court by the libelant, then a resident of this state, against the libelee residing in Springfield, Massachusetts, where the return shows service was made on him on January 16, 1941, in accordance with R.L., c. 339, s. 8. The libel requested a divorce, custody of the minor child, alimony and an order for support of the child. On February 13, 1941, a formal statement entitled "Appearance of counsel" was filed in court for the libelee by Joseph Kerigan of Springfield, Massachusetts, reading as follows: "Enter my appearance of counsel for the libelee, Armand B. Vezina, in the above entitled action." On February 17 Mr. Kerigan wrote Cain Goodnow, attorneys for the libelant as follows: — "I acknowledge receipt of your letter of February 15. My appearance was filed for the purpose of straightening out any question of jurisdiction and was filed only in connection with the stipulation." On February 15 a stipulation signed by the libelee and the libelant was filed providing in substance that the libelant should have custody of the minor child while the father should have the right to see the child and have him with him at reasonable times and places. The stipulation further provided that the libelee should pay the libelant five dollars weekly for the support of the child during his minority or while he remained dependent on the libelant for support, "whichever of said periods shall be shorter." On March 12, 1941, the libel was heard as uncontested, the libelant was decreed a divorce and the decree further provided "care, custody, support and control of minor child, Armand R. Vezina, in accordance with stipulation signed by the parties and made part of this decree."
February 17, 1948, the libelant, still a New Hampshire resident, filed a petition for modification under R.L., c. 339, s. 12 and service was duly made upon the libelee in Springfield, Massachusetts on March 4, 1948. In this petition the prayer is that the order of March 12, 1941 be modified, that the libelee pay an increased amount for the support of the child and also pay alimony. The libelee entered a special appearance and moved that the petition be dismissed because he was not a resident of this state, nor was service made upon him here and therefore the Superior Court "is without jurisdiction." This motion was denied subject to exception and the questions whether the Superior Court has jurisdiction to modify its original decree on the questions of the amount of support for the minor child and alimony were reserved and transferred by Goodnow, C.J. Further facts appear in the opinion.
Walter H. Gentsch and Arthur Olson (by brief), for the libelant.
Homer S. Bradley (by brief), for the libelee.
The present proceedings are a continuation of the original litigation and under our laws may be taken upon constructive notice such as was given here. Cowles v. Cowles, 80 N.H. 530; Bussey v. Bussey, 94 N.H. 328, 330. It appears, therefore, that if the court obtained jurisdiction in the original proceedings, the libelee's motion to dismiss the present petition for lack of jurisdiction was properly denied.
The libelee appeared by counsel in the original proceedings and himself signed a stipulation which covered both custody and support for the child. This stipulation dealing generally with matters concerning the divorce proceedings and invoking the aid of the court to integrate them in a binding decree (Eaton v. Eaton, 90 N.H. 4, and cases cited), portions of which were beneficial to the libelee, is sufficient to hold that he submitted to jurisdiction and may not now object. Dolber v. Young, 81 N.H. 157; Robinson v. Potter, 43 N.H. 188, 190, 191; Noyes v. Noyes, 110 Vt. 511; 6 C.J.S., Appearances, ss. 12, i (1) 13.
Exception overruled.
All concurred.