Douglas v. Douglas

• Decision Date: 29 May 1968
• Docket Number: No. 5536,5536
• Citation: 242 A.2d 78,109 N.H. 41
• Parties: M. Frank DOUGLAS v. Dorothy O. DOUGLAS.
• Court: New Hampshire Supreme Court

Page 78

242 A.2d 78

109 N.H. 41

M. Frank DOUGLAS v. Dorothy O. DOUGLAS.

No. 5536.

Supreme Court of New Hampshire.

Argued Feb. 6, 1968.

Decided May 29, 1968.

Soule & Leslie, Robert P. Leslie, Salem, for plaintiff.

Shaw & Eldredge, Carleton Eldredge, Exeter, for defendant.

KENISON, Chief Justice.

In 1964 the wife was issued a decree of divorce which provided that the husband pay certain debts, thirty dollars ($30) a week for the wife's support, forty-five dollars ($45) weekly for the support of the two minor children, and eight thousand dollars ($8000) payable in four installments during the year 1964. In 1966 the husband filed a motion for modification of the original decree on the grounds that the circumstances of the parties had changed. Upon the wife's motion the modification hearing was heard by the same Judge who issued the original decree. The Court found that '* * * there has been a change of circumstances which makes it equitable that the former decree be modified.'

The Court made an order that vacated as to the future, weekly support payments to the wife; reduced support payments to the minor children to thirty dollars ($30) weekly; vacated that part of the decree requiring the payment of eight thousand dollars ($8000) in installments and credited to the support arrearage fifteen hundred dollars ($1500) paid on account of the eight thousand dollars ($8000) award and ordered the husband to pay the wife forthwith the balance of the support arrearage of three thousand eight hundred seventy-five dollars ($3875), at which time he was to be '* * * released from jail on the civil contempt order of May 1964 * * *.' The wife's exceptions to the modification decree and the denial of her motion for rehearing were reserved and transferred by Grimes, J.

The wife contends that the husband has failed to prove a substantial change of circumstances of the parties to warrant a modification and reduction of the provisions of the original decree and that the husband's testimony was incomplete, inaccurate and unworthy of belief. This contention must be evaluated in the light of certain basic principles of divorce law in this state. First, any modification order is always subject to review. Taylor v. Taylor, 108 N.H. 193, 230 A.2d 737; Kennard v. Kennard, 81 N.H. 509, 511, 129 A. 725. Secondly, any modification order will be set aside only if it clearly appears on the evidence that there has been an abuse of judicial discretion. Fortuna v. Fortuna, 103 N.H. 547, 548, 176 A.2d 708; Collette v. Collette, 108 N.H. --, 238 A.2d 598 (decided February 29, 1968). Thirdly, the modification order is to be measured in terms of the needs of the parties and their respective abilities to meet them. Payette v. Payette, 85 N.H. 297, 157 A. 531; Fortuna v. Fortuna, supra; Annot. 18 A.L.R.2d 10, 13. Fourthly, the Trial Court, of necessity, is accorded a wide discretion in determining the amount of payments and the conditions thereof. Benjamin v. Benjamin, 99 N.H. 117, 119, 106 A.2d 187; Guggenheimer v. Guggenheimer, 99 N.H. 399, 403, 112 A.2d 61.

In the present case the same Judge heard the evidence in 1964 as well as the evidence at the modification hearing in 1966. While it is true that portions of the evidence were pockmarked with holes and the record presents a morass of confusing financial transactions, there was evidence from which it could be found that the husband was having considerable financial difficulties. There was also evidence that the wife acquired at a foreclosure sale for sixteen thousand dollars ($16,000) property of the husband having a value of at least thirty thousand dollars ($30,000) and that the bidding at this sale may have been chilled. 1 Glenn, Mortgages, s. 107.1 (1943): Osborne, Mortgages 1006 (1951). The...