Narins v. Narins, 6670

• Decision Date: 30 April 1976
• Docket Number: No. 6670,6670
• Citation: 116 N.H. 200,356 A.2d 665
• Parties: Jane S. NARINS v. David H. NARINS.
• Court: New Hampshire Supreme Court

Page 665

356 A.2d 665

116 N.H. 200

Jane S. NARINS v. David H. NARINS.

No. 6670.

Supreme Court of New Hampshire.

April 30, 1976.

Normandin, Cheney & O'Neil and David O. Huot, Laconia (Mr. Huot orally), for plaintiff.

Fisher, Parsons, Moran & Temple and Daniel M. Newman, Dover (Mr. Newman orally), for defendant.

KENISON, Chief Justice.

This is a bill in equity to enforce the support provisions of an agreement between the parties which they entered into shortly before their divorce and which was incorporated into the divorce decree granted by a Mexican court. The defendant moved to dismiss the bill on the ground that the agreement violated the public policy of New Hampshire. In the alternative the defendant sought modification of his support obligation. The Trial Court (Mullavey, J.) denied the motion to dismiss, found that an arrearage of $3,916.10 existed under the provisions of the agreement and ordered the defendant to pay this sum to the plaintiff. The court further ordered the defendant to furnish copies of his income tax returns to the plaintiff in accordance with the agreement. The court denied the defendant's prayer for modification and reserved and transferred the defendant's exceptions.

The parties were married in New York and lived there until their divorce. They executed the agreement in question on August 13, 1965. They were divorced by the decree of a Mexican court on September 10, 1965. The Mexican court approved the agreement and incorporated it in the decree. The agreement provides that 'the rights, privileges, duties and liabilities of the parties hereunder . . . shall be construed in accordance with the laws of the State of New York. . . .' See 18 A.L.R.2d 760, 785 (1951). The defendant's brief concedes, 'The agreement is indeed valid in the state of New York . . ..' The plaintiff is domiciled in New York, the defendant in New Hampshire.

The agreement provides for the custody of the parties' child, a division of their property, the payment of support by the defendant, and the payment of the plaintiff's counsel fees in connection with the execution of the agreement. It contains covenants by each party not to claim any interest in the property of or to interfere with the other party. The agreement provides that it shall cease to be binding if the parties are still married on January 1, 1966. See Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544 (1934).

The sole issue before this court is the defendant's contention that the agreement is contrary to the public policy of New Hampshire and should not be enforced by New Hampshire courts. The defendant argues that the agreement is 'a scheme to obtain a divorce by collusion' which holds out 'a premium for the untying of the marriage knot.' He does not attack any particular provision of the agreement, nor does he rely on any circumstance of its execution to sustain his position. He cites four cases. Sayles v. Sayles, 21 N.H. 312 (1850), was an action on a note given in return for a promise not to contest a divorce proceeding where no ground for divorce existed. Foote v. Nickerson, 70 N.H. 496, 48 A. 1088 (1901), and Hill v. Hill, 74 N.H. 288, 67 A. 406 (1907), involved agreements by the parties to live separately and to renounce all property rights arising from their marriage. No divorce or separation proceedings were ever instituted. Wallace v. Wallace, 74 N.H. 256, 67 A. 580 (1907), held that a petition to modify an alimony decree was not defeated by an agreement made...