Kennard v. Kennard

• Citation: 129 A. 725
• Parties: KENNARD v. KENNARD.
• Decision Date: 07 April 1925
• Court: New Hampshire Supreme Court

129 A. 725

KENNARD

v. KENNARD.

Supreme Court of New Hampshire. Rockingham.

April 7, 1925.

Exceptions from Superior Court, Rockingham County; Sawyer, Judge.

Libel for divorce by Ethyl C. Kennard against Reginald P. Kennard. Decree for libelant, and case transferred on libelee's exceptions. Exceptions overruled.

Libel for divorce, with prayer for custody of minor child and for allowance of alimony. The libelant's grounds for divorce were extreme cruelty and treatment seriously injuring health. A divorce was decreed to the libelant for extreme cruelty. The care, custody, education, and earnings of the minor son, Reginald D. Kennard, were committed to the libelant and William E. Marvin of Portsmouth. It was further decreed as follows:

"The libelee is ordered to pay the libelant $50 per month on the last weekday of each month toward the temporary support of said child. Further alimony is decreed to the libelant in the sum of $60,000, and the libelee is ordered to forthwith secure the same by making an assignment to said William E. Marvin, trustee, and his successors, of his interest under the will of William Schaus, to the amount of $60,000, without interest thereon, payable when the trustees under said Schaus will have available funds."

By the will of William Schaus, the grandfather of the libelee, duly probated in New York, a trust fund was created, now amounting to about $350,000, in the hands of trustees, who are at present the Farmers Loan & Trust Company of New York City, to pay the income, increase, and profits thereof to Wilhelmina S. Kennard during her life, and upon her death, leaving issue, to pay over said trust funds to her issue, to take, share and share alike, per stirpes and not per capita. Wilhelmina S. Kennard is living, and is the mother of three children, of whom the libelee is one, and all of whom are living. The libelee has no present ability to pay the $60,000 alimony, and his only future means of paying it is his interest in the Schaus will. October 23, 1923, the libelee executed to William E. Marvin, trustee, an assignment in accordance with the above order, and then excepted to the order and to the involuntary assignment which he had made. The libelee also excepted to the order of the court that the libelee pay a temporary allowance for the support of the child of $50 per month, on the ground that there was no evidence of any present pecuniary ability to pay such a sum, and to the order of the court requiring the libelee to execute an assignment out of his contingent future estate to a trustee of the libelant, on the ground that this estate is not property subject to a present order for alimony.

Marvin, Batchelder & Peyser, of Portsmouth, and Scammon & Gardner and John Scammon, all of Exeter, for libelant.

Snow & Cooper and C. E. Snow, all of Rochester, for libelee.

PLUMMER, J. The original divorce statute in this state was enacted in 1791. Prior to that time divorces were granted by the Legislature. This act contained the following provision in relation to alimony: The justices of the superior court of judicature may in all cases where a divorce is decreed * * * assign to the wife such part of the real and personal estate of her late husband as all circumstances duly considered they may think just and reasonable." 5 N. H. Laws (Metcalf Ed.) 733.

Section 13, chapter 148 of our Revised Statutes, provides that the court "may assign to her such part of the real and personal estate of her husband, or order him to pay such sum of money, as may be deemed just and expedient." The present statute of this state is the same as that of the Revised Statutes, except it does not contain the words "and expedient," but is that the court "may assign to her such part of the estate of her husband, or order him to pay such sum of money, as may be deemed just." P. S. c. 175, § 14. The statutes enacted relating to alimony indicate that it was the intention of the legislature to confer upon the courts comprehensive powers and broad discretion in relation to that subject, and these statutes have been so construed by the court.

"The decision of all causes of divorce and alimony is given to this court by the Constitution; and the statute regulating the whole matter confers upon the court the most ample powers. Constitution of N. H. part 2, § 76; Rev. Stat. c. 148. The section of the statute which applies particularly to the question before us is as follows: 'Upon any decree of nullity or divorce, the court may restore to the wife all or any part of her lands, tenements and hereditaments, and may assign to her such part of the real and personal estate of her husband, or order him to pay such sum of money, as may be deemed just and expedient; * * * Rev. Stat. c. 148, § 13. Several other sections are to be found in the same chapter, showing that it was the intention of the Legislature that the court should exercise a very broad discretion in relation to the whole subject; that they should, as was expressed in the act of 1791, do what they may think just and reasonable, 'all circumstances duly considered.'" Sheafe v. Sheafe, 24 N. H. 564, 567; Whittier v. Whittier, 31 N. H. 452, 458.

The award of alimony is within the sound discretion of the trial court. 19 C. J. 249, and cases there cited.

It is true that this discretion is not arbitrary and can be revised. But under the statute and practice in this state the award made by the court will not be disturbed, unless it is clear and certain that it is unjust under all the circumstances.

The libelee excepted to the involuntary assignment made by him to a trustee of his wife of his interest in the trust fund created by his grandfather's will, on the ground that his interest therein is not property subject to a present order for alimony. The contention of the libelee that his interest in the trust fund is a contingent and not a vested remainder, and consequently could not be transferred or alienated, is based upon the fact that, if he should predecease his mother, who holds the life estate, then he would not inherit the trust fund. Under the decisions of the court in this state the libelee takes a vested remainder, which may be divested by his decease before that of the life tenant. Parker v. Ross, 69 N. H. 213, 45 A. 576; Dana v. Sanborn, 70 N. H. 152, 46 A. 1053. As the interest of the libelee in the trust is a vested remainder, a valid assignment of it can be made by him. Glidden v. Blodgett, 38 N. H. 74; 16 Cyc. 652. The conclusion is that the assignment made by the libelee to the trustee of the libelant by the order of the court of a certain portion of his interest in the trust fund is valid; and that the making of the order for such an assignment was clearly within the power of the court, and was not an abuse of the discretion conferred upon him by the statute which provides that the court may assign to the wife as alimony such part of the estate of her husband as may be deemed just.

If it could be held that the position of the libelee is correct, namely, that his interest in the fund cannot be assigned under the order of the court, then he has no reason for complaint, because the assignment would be inoperative, a mere nullity, and could not prejudice him. Sheafe v. Laighton, 36 N. H. 240, 245. The claim of the libelee that the decree should be annulled because, when funds are available so that payment can be made to the trustee of the libelant, the situation may be such as to render the order unjust furnishes no adequate reason for the abrogation of the decree, for, if such a condition should occur, upon petition to the court, the order may be set aside or modified. Wallace v. Wallace, 74 N. H. 256, 67 A. 580, 13 Ann. Ca. 293. Whether the interest of the libelee in this trust fund is to be controlled and administered according to the laws of New York is a question which has not been presented or considered.

The libelee under his general exception to the order for alimony urges that the amount awarded to the libelant by the court is excessive, and that the decree should be set aside. Under the statute the court may decree such an amount "as may be deemed just." The amount to be awarded is very largely within the discretion of the trial court, and a decree made will not be set aside unless it is distinctly evident and manifest that the court's discretion has been abused. If upon the evidence it can be found that the award was not unjust, then the order will not be annulled or modified. This is the general rule adopted by courts in this country under statute...