Harvey v. Lane

• Decision Date: 05 October 1876
• Citation: 66 Me. 536
• Parties: Charlotte B. HARVEY, petitioner, v. Edwin A. LANE.
• Court: Maine Supreme Court

66 Me. 536

Charlotte B. HARVEY, petitioner, v. Edwin A. LANE.

Supreme Judicial Court of Maine.

October 5, 1876

ON EXCEPTIONS, to a ruling, sustaining a demurrer to a petition to alter a decree in a divorce suit.

ON PETITION, representing that the petitioner, formerly the wife of the respondent, was divorced from the bonds of matrimony September 24, 1869, by this court holden at Paris, [& c ] that on the same judgment for divorce it was further ordered and decreed that the custody of their two youngest children be given to the mother; that the respondent pay the petitioner thirty dollars each year for five successive years; that said children have always lived with her and are much attached to her, [& c.; ] that she desires to have them continue with her during their minority; that the five years expired September 24, 1874; that the thirty dollars per year has been fully paid, and that the respondent has large property while hers is nearly exhausted. The petition closes with a prayer that the court so far alter its decree as to order the respondent to pay the petitioner such reasonable sum towards the support and education of the daughters during their minority as upon an examination, justice may require under provisions of R. S., c. 60, § 19.

To this petition, the respondent demurred generally, the presiding justice sustained the demurrer, and the petitioner alleged exceptions.

M. T Ludden, for the respondent, contended that the decree of thirty dollars a year contained no provision for the support of the minor children; that there was no decree concerning their support and that the decree concerning the payment of money having been fully complied with, there was no decree in existence " to alter ; " that the court having decreed a specific sum in lien of alimony the decree was final and after having been complied with, could not then, if ever, be legally altered; that the authority of the court " to alter" their decree given by R. S., c. 60, § 19, applied only to the care and custody of the children and not to the sum fixed upon in lieu of alimony.

E. G. Harlow, for the petitioner, submitted that the decree of thirty dollars per year for five years was part of the decree as to the custody of the children.

DANFORTH J.

This is a petition for an alteration of a decree of this court under R. S., c. 60, § 19. The respondent files a general demurrer which was sustained in the court below and exceptions filed. The principal objection to the petition is that it does not set out such a decree as can be changed and that the alteration asked is of a decree which does not exist and cannot therefore be " altered."

The petition alleges in substance that the petitioner was formerly the wife of the respondent from whom she was divorced at the term of this court holden in Oxford county in September, 1869; that in said judgment for divorce, " it was further decreed by said court that the custody of their two youngest children be given to the mother, and that the said Edwin A. Lane pay to the said Charlotte...