Henry v. Henry, 86-083
Decision Date | 06 March 1987 |
Docket Number | No. 86-083,86-083 |
Parties | Sherryl M. HENRY v. John G. HENRY. |
Court | New Hampshire Supreme Court |
Wiggin & Nourie, Manchester (L. Jonathan Ross, on the brief, and Michael L. Alfano, on brief and orally), for plaintiff.
Holland, Donovan, Beckett & Welch, Exeter (William H.M. Beckett, on the brief and orally), for defendant.
This is an appeal from the report of a Master (Stephanie T. Nute, Esq.), approved by the Superior Court (Manias, J.), providing for a termination of the plaintiff's alimony. It presents for our review the question of whether the master abused her discretion in terminating the plaintiff's alimony under the circumstances of this case. We reverse and remand the case for further proceedings consistent with the principles enunciated below.
The parties were married on October 26, 1963, in Eugene, Oregon. In early 1967, the plaintiff was diagnosed as having multiple sclerosis. In 1974 the parties moved to New Hampshire, and in 1978 the plaintiff filed for an uncontested divorce on grounds of irreconcilable differences.
The divorce order was dated August 8, 1978, and the decree approved and incorporated the parties' permanent stipulation. The settlement set forth in the stipulation awarded plaintiff the marital home, the automobile, moving and relocation expenses, and the continuation of insurance benefits. Paragraph 5 of the stipulation signed by both parties, provided as follows:
In 1981, the defendant, pursuant to the three-year rule of RSA 458:19, as it read at that time, stopped paying alimony. The plaintiff filed a motion for renewal and extension of alimony. The defendant answered with a motion to reduce alimony payments, alleging that he was about to become unemployed. In an order dated May 27, 1983, the Superior Court (Nadeau, J.), approving the report of the Master (Gary R. Cassavechia, Esq.), reduced the alimony obligation to $400 per month.
In 1985, the plaintiff filed another petition for modification and extension of alimony. Relying on the notion, developed in Calderwood v. Calderwood, 114 N.H. 651, 653, 327 A.2d 704, 706 (1974), that the primary purpose of alimony is to encourage the recipient spouse to establish an independent source of income, the master ruled that the plaintiff would receive payments until February 3, 1987, at which time all alimony payments would cease. This appeal followed.
As a threshold matter, we must determine which version of the New Hampshire alimony statute, RSA 458:19, generally amended as of January 1, 1986, applies to this case, in which the permanent stipulation and divorce decree were effective in September, 1978. Because the general amendment to the statute carries an effective date of January 1, 1986, we hold that the "new" provision (RSA 458:19 (Supp.1986)) is applicable only to orders based upon divorce decrees entered on or after that date. Orders based upon divorce decrees entered before January 1, 1986, will be governed by the "old" provision (RSA 458:19 (1983)). We note that this is the approach taken in other States that have amended their alimony laws. See, e.g., N.Y. DOM. REL. LAW § 236 B 9b (McKinney 1986); Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050 (1982).
We now reach the principal issue in this case: whether the trial court, notwithstanding the modifiability of the original decree, abused its discretion in ordering alteration and termination of the alimony award. Hanson v. Hanson, 121 N.H. 719, 720, 433 A.2d 1310, 1311 (1981) ( ). We note at the outset that the trial court has broad discretion to determine whether justice requires a renewal of alimony. Healey v. Healey, 117 N.H. 618, 622, 376 A.2d 140, 143 (1977). Nevertheless, in making such a determination, "t...
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