McRae v. McRae, 6961
| Decision Date | 30 June 1975 |
| Docket Number | No. 6961,6961 |
| Parties | Persis A. McRAE (Deyo) v. Dennis E. McRAE. |
| Court | New Hampshire Supreme Court |
Howard B. Lane, Keene, by brief, for plaintiff.
Cristiano & Kromphold and Douglas F. Green, Keene, by brief, for defendant.
The question in this case is whether an order for child support issued as part of a final divorce decree may be challenged almost four years after the date of the decree by a request for blood tests in a petition for modification. See RSA 522:1 (Blood Test to Determine Paternity) Loughlin, J., reserved and transferred the husband's exception to the denial of the petition.
Persis A. Deyo and Dennis E. McRae were married on May 4, 1965, in New Jersey, where Dennis was stationed with the United States Army. Prior to joining the army Dennis was a resident of Keene, New Hampshire; his bride resided in the neighboring town of Gilsum. At the time of the marriage Persis was pregnant. Eight days after the marriage ceremony, Dennis was sent by the Army to Vietnam. About seven months later on December 23, Denise Ann McRae was born.
When Dennis returned from Vietnam in January 1967, Persis and the child, Denise, went to live with him in Virginia where they resided until Dennis was discharged from the Army in October 1968. They continued to live together a husband and wife in Keene, New Hampshire, from October 1968 to August 20, 1969, when Persis returned with the child to her family home in Gilsum as the result of marital difficulties.
On September 5, 1969, Persis petitioned for a divorce which was granted by the Court (Morris J.) on March 10, 1970. The divorce decree entrusted the custody of Denise to Persis and ordered Dennis to pay in 'support of the minor child, the sum of $20.00 per week'. On August 14, 1973, Persis petitioned for payment of support for the child which was in arrears $2,360, representing 118 weeks in which no support payments were made. By an order dated November 5, the Court (Johnson, J.) directed Dennis to pay $500 and increased the weekly child support payments from $20 to $25. The balance of the arrearage was forgiven.
On December 14, 1973, Dennis petitioned for a modification of the 1970 divorce decree, claiming that he recently discovered 'reliable information' indicating that he was not the natural father of Denise and requesting the court to order the parties to submit to blood tests.
Orders for child support issued pursuant to a final decree of divorce are modifiable for a substantial change of circumstances since the date of the decree, as well as for circumstances existing at the time of the decree which were not presented to the court. RSA 458:17, :32 (Orders for Support-Modification); Damon v. Damon, 111 N.H. 162, 163, 276 A.2d 920, 921 (1971). The party seeking modification of the decree must establish that continuance of the original support provision is improper and unfair. Collette v. Collette, 108 N.H. 467, 470, 238 A.2d 598, 599 (1968). In his petition for modification the husband challenges the propriety of the original support order by alleging that bood tests of the parties may reveal that he was not the father of the child. It is the husband's contention that the continuing jurisdiction of the court to modify decrees in divorce proceedings and the broad language of RSA 522:1 justify an ...
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