French v. French, 7591

• Decision Date: 30 September 1977
• Docket Number: No. 7591,7591
• Citation: 117 N.H. 696,378 A.2d 1127
• Parties: John E. FRENCH v. Rita M. FRENCH.
• Court: New Hampshire Supreme Court

Page 1127

378 A.2d 1127

117 N.H. 696

John E. FRENCH v. Rita M. FRENCH.

No. 7591.

Supreme Court of New Hampshire.

Sept. 30, 1977.

Casassa, Mulherrin & Ryan and Peter J. Saari, Hampton, for plaintiff.

Rita M. French, pro se.

PER CURIAM.

Petition to compel performance of a divorce decree and petition to modify divorce decree by the plaintiff. The defendant filed an answer and cross petition for modification and a motion to bring forward and correct the original court decree.

There was a hearing before the court, which entered a decree on December 30, 1975. The plaintiff's objections to portions of the decree were denied on January 21, 1976. The defendant filed a motion to partially set aside and modify the decree. On January 26, 1976, the court modified its December 30, 1975 decree and the plaintiff excepted. Transferred by Douglas, J.

The plaintiff argues first that provisions of a 1973 stipulation between the parties, which amended an earlier decree of May 31, 1972, and which were approved by the court, were in the nature of a property settlement and cannot be amended. Douglas v. Douglas, 109 N.H. 41, 242 A.2d 78 (1968). We do not accept this argument. In Lund v. Lund, 96 N.H. 283, 74 A.2d 557 (1950), cited by the plaintiff, the court said that the decree "is to be considered in its entirety," Id. 285, 74 A.2d 559, but this bore only on the question whether children were involved within the meaning of R.L. 339:16, now RSA 458:19, relating to the three-year limitation of orders for support where no children were involved. This case is no authority for the proposition urged by the plaintiff that the settlement between the parties as incorporated in the decree of November 7, 1973, was a property settlement which could not be modified. This decree had special provisions as to real and other property rights distinct from provisions as to payments for the support of the defendant and her minor children. With the trial court's interpretation of these support provisions as being subject to modification under our settled law we are content. Hogan v. Lebel, 95 N.H. 95, 58 A.2d 321 (1948). See also Kalman v. Hutcheson, 111 N.H. 36, 40, 276 A.2d 260, 263 (1971).

A further position taken by the plaintiff, that the court abused its discretion by modifying the decree despite the "inequitable" conduct of the defendant and despite her not having "touched" the principal of the bonds transferred to her, does not require extended consideration.

Without detailing all the evidence, it is sufficient to say that the court could have found the following facts: There was no inequitable conduct on the part of the wife which required that she be denied relief. She is in poor health, which probably will grow worse, so that she is unable to work steadily at any of the reasonably well-paid positions. Her earnings of about $2,000 annually, under present economic conditions, are meager. She is forced to live well below the standard which she enjoyed prior to the divorce and which is an important factor in considering what she should now receive. Calderwood v. Calderwood, 114 N.H. 651, 327 A.2d 704 (1974). She has three of the parties' six children living with her: David, Dennis and Stephen, the latter a minor who has serious health problems which demand expenditures. The house is in poor repair as is her automobile, which she needs for transportation to her work. She is trying to help put David and Dennis through college. The fact that she has not "touched" the principal amount of $22,000 worth of bonds, which is urged by the plaintiff as strong evidence that she is well able to make ends meet, we find unimpressive. Her needs are as obvious as the plaintiff's ability to pay, which is also in issue here. Economides v. Economides, 116 N.H. 191, 357 A.2d 871 (1976). See also Madsen v. Madsen, 109 N.H. 457, 255 A.2d 604 (1969).

In contrast to her situation is that of the plaintiff, whose salary is approximately $50,000 per year, with provisions for automatic yearly increases. He has no children by his present wife, he has $125,000 life insurance which will go to her upon his death, and other benefits. He will receive for the remainder of his life, upon his retirement at age 60, in some three-four years, around $2,000 monthly. He is now living on as high if not a higher scale than before the divorce.

The plaintiff's reliance upon Calderwood v. Calderwood, 114 N.H. 651, 653, 327 A.2d 704, 706 (1974), as holding that evidence of the plaintiff's financial condition was wrongly admitted by the court is misplaced. There were no children in the Calderwood case and, as the court expressly noted, the husband's ability to pay was not in issue, as he had assured the court that he could and would pay any order made. Id. at 653, 327 A.2d at 706. The opinion did, however, note that the wife was entitled to be maintained at the economic level she enjoyed during the marriage "with due consideration (as to) the current economic situation. . . ." Id. at 652, 327 A.2d at 706. In the light of all the circumstances which the court had the duty to consider, we find no abuse of discretion. Healey v. Healey, 117 N.H. ---, 376 A.2d 140 (1977).

The plaintiff's final contention is that the court had no jurisdiction to award educational expenses for adults. We believe that the court did have jurisdiction and did not abuse it. When the order was made on December 30, 1975, requiring the plaintiff to pay up to $3,000 per year to allow the three children, David, Dennis and Stephen, to complete their undergraduate college education, only Stephen, as previously noted, was a minor. There is no clear-cut decision in this state on the precise question before us. However, there is here substantial authority which supports the underlying thrust of the defendant's position. We note that in RSA 458:17 (Supp.1975), providing for the custody, support and education of children the word "minor" does not appear. Because as a matter of law jurisdiction to award custody is limited to jurisdiction over minors, there would seem to be no reason why "m...