Cote v. Cote.

• Decision Date: 13 August 1947
• Parties: COTE v. COTE.
• Court: New Hampshire Supreme Court

54 A.2d 360

COTE

v.COTE.

Supreme Court of New Hampshire.

July 2, 1947.

Rehearing Denied Aug. 13, 1947.

Reserved and transferred from Superior Court, Hillsborough County; Leahy, Judge.

Proceeding by Alma C. Cote against Amedee Cote to recover judgment for amount of payments allegedly due under order for support of minor children made in a divorce action. The trial court made certain findings of fact and reserved and transferred without ruling all questions of law raised by the findings and pleadings. The plaintiff excepted to certain of the findings and the defendant excepted to the trial court's refusal to grant defendant's motion for dismissal of the petition, and the exceptions were included in the transfer.

Petition dismissed.

Petition, for judgment for the amount of payments alleged to be due under an order of support for minor children made in a divorce action June 1, 1927. Divorce was decreed the libellant wife and custody of the minor children was given to her. It was ‘ordered that libellee pay appellant ten dollars weekly for support and maintenance of children.’ The parties had four children that grew to maturity, the youngest of whom, Wilfred Cote, became of age May 15, 1939. Mr. and Mrs. Cote remarried October 18, 1930 and lived together about three weeks, since which time they have been separated. Mr. Cote obtained an uncontested decree of divorce for abandonment in 1935, in which no order was made with respect to the children. The Court found that at this time the children with the exception of Wilfred were self-supporting and that he became so during that year. Other facts appear in the opinion.

Hearing by the Court (Leahy, J.) who made certain findings of fact and reserved and transferred without ruling all questions of law raised by the findings and the pleadings. The plaintiff excepted to certain of the findings and the defendant to the refusal of the Court to grant his motion that the petition be dismissed, which exceptions are included in the transfer.

McLane, Davis & Carleton and Stanley M. Brown, all of Manchester, for plaintiff.

Robert W. Upton and John H. Sanders, both of Concord, for defendant.

JOHNSTON, Justice.

The present proceeding is not one to recover money due and needed for the support of the children. It is for the equitable purpose of reimbursing a mother, the plaintiff, for expenditures of hers caused by the default of the father, the defendant, under a court order with respect to payments for the support of their children.

Among the findings of the Trial Judge is the following: ‘It is found, however, that both parties entered into the remarriage with the understanding that ‘Bygones would be bygones,’ and that past obligations of either were forgiven to the extent they legally could be.' There was evidence to support this finding. Accordingly, there can be no recovery for any arrearages prior to October 18, 1930.

It is unnecessary to consider the defense that the second marriage between the parties in the fall of 1930 had the legal effect of annulling and rendering ineffective the order of support so that no recovery for any installments could be had after the date of said marriage.

The present petition was filed March 6, 1946, after the defendant had received a substantial settlement on account of serious personal injuries. With respect to the conduct of the plaintiff after the separation in November of 1930, the Court found as follows: ‘It is found that Alma C. Cote worked in the same place as Mr. Cote, the Amoskeag Manufacturing Co. of Manchester, for a number of years subsequent to 1930 and that she saw him in the plant and that in the exercise of the slightest diligence could have located him through his relatives whenever she wished. She made no direct efforts in this respect, but on the contrary at the solicitation of her children refrained from pursuing Cote for support.’ Concerning the period after the children became self-supporting in 1935, the Court found: ‘In so far as the findings requested have any probative value in establishing laches or the lack of laches on the part of Alma C. Cote a general finding is made that Alma C. Cote made no reasonable effort to pursue her legal remedies, if any she had, against Amedee Cote subsequent to 1935 until the bringing of the present action.’ ‘Among possible reasons for denial it might be found that the libelee has not been diligent in instituting and prosecuting his petition.’ Eaton v. Eaton, 90 N.H. 4, 9, 3 A.2d 832, 835. ‘A wife may, by her own conduct, disable herself from claiming any benefit under an order such as was originally made herein and conduct showing an intention to treat the order of the court as no longer in force is conduct of this kind.’ Paille v. Paille,...