Leclerc v. Leclerc

• Decision Date: 07 April 1931
• Parties: LECLERC v. LECLERC.
• Court: New Hampshire Supreme Court

155 A. 249

LECLERC

v. LECLERC.

Supreme Court of New Hampshire. Coos.

April 7, 1931.

Exceptions from Superior Court, Coos County; Oakes, Judge.

Petition by Olive Leclerc against Emelda Leclerc. Petition granted, and defendant excepts.

Case discharged.

Petition for the custody of minor children in which the petitioner prays that the divorce proceedings of George T. Leclerc v. Emelda Leclerc be brought forward and that the order relating to the custody of the children formerly made therein be modified. After a hearing by the court the petition was granted and the defendant excepted.

At the April, 1929, term of the superior court, George T. Leclerc secured a divorce from the defendant, Emelda Leclerc, and the custody of two of their children, Martha and Germaine, was awarded to him. The custody of two other children, Priscilla and Richard was awarded to the defendant. George died November 7, 1929. The petitioner is George's sister, and in her petition she prayed that the custody of Germaine and Martha be committed to her. In her answer the defendant, without waiving her right to contest the jurisdiction of the court, prayed that the custody of all four children be given to her. No claim was made that the defendant is not of good reputation and moral character. The court made an order committing the custody of Martha and Germaine to a third party. "The question of the jurisdiction and authority of the Superior Court in the premises" was reserved by Oakes, J.

Ovide J. Coulombe, Ira W. Thayer, and Crawford D. Hening, all of Berlin, for plaintiff.

Matthew J. Ryan and Edmund Sullivan, both of Berlin, for defendant.

BRANCH, J.

It is well-settled law that divorce proceedings abate upon the death of either of the parties. Kimball v. Kimball, 44 N. H. 122, 82 Am. Dec. 194 and note; Rollins v. Gould, 244 Mass. 270, 138 N. E. 815; 9 R. C. L. tit. Divorce and Separation, § 214. "And this effect must extend to whatever is identified with those proceedings." McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717. How far, if at all, this rule may be subject to limitations and exceptions is a difficult question which we need not consider in detail at this time (see 9 R. C. L. ubi cit), for under none of the limitations or exceptions suggested or established by the authorities elsewhere could a divorce proceeding be kept alive after the death of one party for the purpose of dealing with a new situation brought about solely by such death. It is also clear, we think, that the statutory provision for revision and modification of orders in divorce cases (Pub. Laws 1926, c. 287, § 12) does not weaken the force of the foregoing principle so far as orders relating to custody are concerned.

Prior to the entering of the divorce decree the parents were the "joint guardians of the person" of their children and their powers, rights and duties" in regard to such children were equal. Pub. Laws 1926, c. 290, § 4. The divorce court had power to "regulate their joint rights by awarding custody to either parent permanently or temporarily, or by some division of time so apportion the custody between them as the welfare of the child, the rights of the parents, and the circumstances of the particular case required." White v. White, 77 N. H. 26, 29, 30, 86 A. 353, 355. When the joint rights of the parties were terminated by the death of the father, the problem of custody, so far as it concerned the divorce court, ceased to exist, just as the problem of divorce disappeared when the libelant died in the case of Kimball v. Kimball, supra. The divorce laws gave the court no authority to consider new questions then arising, although similar in nature to those previously passed upon, nor did they make the children the permanent wards of the court. Stone v. Duffy, 219 Mass. 178, 181, 106 N. E. 595, 596. The situation in regard to custody has been well stated by the Supreme Court of Massachusetts as follows: "The decree went no further than to adjudicate the parental rights of the former husband and wife as between themselves, and custody was conditioned to both lives, with the obligation imposed on the father to provide for the child's support. The liability for payment of alimony ceased with his death, although his executor or the administrator of his estate ordinarily could be bold for accrued arrears. * * * The provisions for custody also were abated or expired by limitation. Rawson v. Rawson, 156 Mass. 578, 580, 31 N. E. 653; In re Blackburn, 41 Mo. App. 622; Davis v. Davis, L. R. 14 P. Div. 162." Stone v. Duffy, supra.

The provisions of Pub. Laws 1926, c. 316, § 6, that the superior court shall take cognizance "of petitions for divorce, nullity of marriage, alimony, custody of children and allowance to wife from husband's property for support of herself and children," merely impose upon the superior court the duty of administering the divorce statutes and confer upon it no independent jurisdiction over the custody of children.

For the purpose of deciding who should have the custody of the Leelerc children after the death of their father, the divorce proceeding was dead and the defendant's exception to the attempt of the trial court to make further orders therein must be sustained.

It should be noted in passing that different considerations may govern the question of alimony, and that the declaration of the Massachusetts court above quoted, that liability for the payment of alimony ceased with the death of the husband, may not correctly state the law of this jurisdiction. In Spofford v. Smith, 55 N. H. 228, it was held that a petition for an additional allowance of alimony might be maintained by the libelant after the death of the libelee. The ground upon which it was held "that the death of the libellee does not cut off the right of the libellant to make the application against his executor" does not appear. In the opinions of Ladd and Smith, T.I., reference is made to a previous opinion in the same cause which decided this point. We learn that this opinion was written by Doe, T. (99 Briefs & Cases, 701), but it has never been reported and does not appear to be on file. We therefore have no means of determining how far and under what circumstances it was thought by the court as then constituted, that an obligation to pay alimony remained in force after the death of the husband, nor are we called upon to consider the question now. See 1 R. C. L. Tit. Alimony, §§ 80, 81. If an order for the payment of alimony does survive the death of the payor, the power of the court to revise or modify the order ought in reason to persist and the statute above referred to (Pub. Laws 1926. c. 287, § 12) would no doubt be effective to accomplish this result.

In the absence of pending (Pub. Laws 1926. e. 287, §§ 14, 15) or possible (Pub. Laws 1926, c. 287, § 29) divorce...