Dupuis v. Click

• Citation: 135 N.H. 333,604 A.2d 576
• Decision Date: 13 March 1992
• Docket Number: No. 91-173,91-173
• Parties: Gloria E. DUPUIS v. Elizabeth Ann CLICK, Executrix of the Estate of Maurille Dupuis.
• Court: Supreme Court of New Hampshire

Page 576

604 A.2d 576

135 N.H. 333

Gloria E. DUPUIS v. Elizabeth Ann CLICK, Executrix of the Estate of Maurille Dupuis.

No. 91-173.

Supreme Court of New Hampshire.

March 13, 1992.

Tardif, Shapiro & Cassidy, Concord (James M. Cassidy on the brief and orally), for plaintiff.

LaFlamme & Davis, Manchester (W. Jean LaFlamme, on the brief and Elizabeth Cazden on the brief and orally), for defendant.

BROCK, Chief Justice.

The plaintiff, Gloria Dupuis, appeals from a ruling of the Superior Court (Manias, J.) that the alimony and college education payment obligations of Maurille Dupuis did not survive his death, and, therefore, were not binding and enforceable against his estate. We affirm.

The couple was divorced in 1979, with Mrs. Dupuis being awarded custody of their three minor children, Peter, Marilyn and Maurille, Jr. Her proposed decree, which was not objected to by Maurille, was accepted by the Master (Robert A. Carignan, Esq.), and approved by the Superior Court (Cann, J.). The decree contained, inter alia, a provision for weekly alimony payments of $160.00 to the plaintiff, and a requirement that Maurille "pay for the reasonable expenses of formally educating each such child who may desire to commence and complete a college education."

In 1985, the plaintiff filed a request for an increase in alimony and child support and a motion for contempt, which essentially requested a clarification of the provision regarding the "formal education" of the children. Modification of the amount of alimony was denied, but the court did increase the child support payments. Further, following the recommendation of the Marital Master (Larry B. Pletcher, Esq.), the Superior Court (Dunn, J.) ruled that "college expenses" meant the "costs of room, board, tuition, books, activity fees, registration fees, costs of laundry (upon furnishing bill receipts) and $20.00 per week payable directly to such child while said child is actually in attendance at school and not employed."

Maurille died on December 3, 1988, with assets in excess of $4,000,000. During his lifetime, Maurille paid for four-and-one-half years of Peter's college education and Marilyn's first year of college. There was no provision in Maurille's will for the future education of the Dupuis children.

The executrix of the estate paid the child support due for Maurille, Jr., but denied that the estate was responsible for any other expenses. The superior court agreed with the executrix and the plaintiff now appeals the denial of payments for education and alimony.

We first address the plaintiff's claim that the alimony award constituted a property settlement which survives the payor's death. The distinctions between alimony payments and property settlements are well established in our case law. See generally Stebbins v. Stebbins, 121 N.H. 1060, 1062-63, 438 A.2d 295, 297-98 (1981) (and cases cited therein). "[C]ontinuing obligations, such as alimony and child support, involve indefinite payments which remain modifiable by the court ... [and,] unless otherwise provided, support payments terminate upon the death of either spouse, and the estates of the spouses have no rights or responsibilities concerning these payments." Stebbins, 121 N.H. at 1063, 438 A.2d at 297-98 (citation omitted). On the other hand, "[a] property settlement ... exists when a spouse agrees to make monetary payments which are ascertainable in amount, payable within a definite period, and binding upon the estate of the paying spouse." Stebbins, 121 N.H. at 1063, 438 A.2d at 297 (citation omitted).

The plaintiff asserts "that her receipt of alimony was in exchange for her release of any further claims upon the homestead of the parties and upon defendant's business assets," and, therefore, it should be considered a property right. She attempts to bolster this argument by utilizing RSA 458:19 (1955), the applicable statute at the time of the divorce, see Henry v. Henry, 129 N.H. 159, 161, 525 A.2d 267, 268 (1987), which allows alimony payments to continue for three years after the youngest child reaches the age of majority. This argument is untenable.

It is undisputed that the divorce decree is unambiguous. Although the decree contained an ascertainable amount, there was no definite duration of payment. Either party could have suggested a clause in the divorce decree providing for the payments to continue upon either spouse's death, yet no such clause was requested or included in the decree.

The plaintiff relies heavily on our decision in Stritch v. Stritch, 106 N.H. 409, 213 A.2d 426 (1965), wherein we held that alimony payments following the death of the payor-spouse were enforceable. A close review of Stritch, however, indicates that it is not applicable to the facts of this case. In Stritch the court ordered the husband to make alimony payments in the sum of $225 per week for a period of three years from the effective date of the decree. Further, the court noted that "[t]he salient feature of the case is that the Presiding Justice who entered the original order has interpreted it to be binding upon the husband's estate." Id. at 412, 213 A.2d at 428 (citations omitted).

In the case at bar, there is neither an order to pay alimony for a fixed term, nor an interpretation by the trial court that the provision for payment of alimony was intended to survive the death of either party. It follows then that alimony payments terminate upon the death of either of the parties. Hazen v. Hazen, 122 N.H. 836, 839, 451 A.2d 398, 400 (1982) (citing Stebbins v. Stebbins, ...