Hutchins v. Hutchins

• Decision Date: 04 March 1939
• Citation: 4 A.2d 679
• Parties: HUTCHINS v. HUTCHINS.
• Court: Maine Supreme Court

4 A.2d 679

HUTCHINS

v. HUTCHINS.

Supreme Judicial Court of Maine.

March 4, 1939.

Exceptions from Superior Court, York County.

Proceedings by George S. Hutchins against Ruth Virginia Hutchins for alteration of a divorce decree with respect to alimony and support of children. A modifying decree was made, and defendant brings exceptions.

Proceedings dismissed.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Willard & Willard, of Sanford, for petitioner.

Bradley, Linnell, Nulty & Brown, of Portland, for respondent.

PER CURIAM.

This proceeding was instituted to seek alteration of a divorce decree with respect to alimony and support of children. Hearing was had before a Justice of the Superior Court and a modifying decree was made. Exceptions raised the issue that the Court had no authority to change the original order of alimony under the statute as it existed at the time the divorce was granted. Inspection of the record shows that the written application to the Court for relief, styled a petition, was in legal effect a motion directed to the Court seeking a revisal order upon the ground that the income of the libelee had been substantially reduced and he was no longer able to make the required payments. These allegations of fact are not supported by affidavit as required by Rule XVI of the Supreme Judicial and Superior Courts, which reads:

"No motion based on facts will be heard unless the facts are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed and stated in writing signed by the parties or their attorneys. The same rule will be applied as to all facts relied on in opposing any motion."

Compliance with this rule is a basic requirement to entitle the libelee to a hearing.

"Courts are bound to take notice of the limits of their authority, and accordingly a court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings." 15 C.J, Courts, Par. 171.

Our Court, in Emmett v. Perry, 100 Me. 139, 60 A. 872, 873, said:

"A motion for a new trial on newly discovered evidence is a motion grounded on facts not apparent from the record, and, under rule 16 of this court, should be verified by affidavit in order to entitle it...