Salta v. Salta

• Decision Date: 06 December 1921
• Docket Number: No. 1741.,1741.
• Citation: 116 A. 438
• Parties: SALTA v. SALTA.
• Court: New Hampshire Supreme Court

116 A. 438

SALTA

v. SALTA.

No. 1741.

Supreme Court of New Hampshire. Belknap.

Dec. 6, 1921.

Exceptions from Superior Court, Belknap County; Marble, Judge.

Suit by Gladys M. Salta against James N. Salta. A demurrer was overruled, and an order made in favor of the petitioner, and defendant excepted. Case discharged.

Petition by Gladys M. Salta, of Lawrence, Mass., against James N. Salta, of Laconia. The plaintiff alleges that she was formerly the wife of the defendant James; that he obtained a divorce from her at Laconia in October, 1919; that the petitioner has one child by the said James, born May 9, 1916; that decree as to custody was made at the time of the divorce, but custody of said child was committed to the petitioner by a decree of the probate court for Essex county, Mass., June 21, 1917, after due notice to the defendant and hearing at which he appeared.

The prayer of the petition is that the defendant be required to pay the plaintiff a reasonable sum for the education, maintenance, and support of his said child, and for such other relief as the court may deem just.

The defendant demurred to the petition. The demurrer was overruled, and the divorce proceedings brought forward. After a hearing on the merits the court, Marble, J., awarded the custody of the child to the plaintiff, and ordered the defendant to pay $10 per week towards the child's support. The defendant was a resident of Massachusetts in November, 1916, but shortly afterward removed to Laconia, and has resided in this state continuously since removing here. The defendant excepted to the overruling of the demurrer and to the order made on hearing. The plaintiff came with her husband to Laconia November 15, 1916, and remained with him for three months, when she returned to Massachusetts, where she has since resided.

Frank P. Tilton, of Laconia, for plaintiff.

Fortunat E. Normandin, of Laconia (Jewett & Jewett, of Laconia, on the brief), for defendant.

PARSONS, C. J. Whether the decree of the probate court of Massachusetts as to custody is or not superseded by the decree in a foreign divorce proceeding, the order which has been made awarding the custody of the child to the mother does not conflict with it.

The legal liability of a father for the support of his minor child is entirely dependent upon the statute. State v. Byron, 79 N. H. 39, 40, 104 Atl. 401; Plymouth v. Haverhill, 69 N. H. 400, 46 Atl. 460; Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499. Also the power of the court in divorce proceedings as to alimony, custody, and support of children is wholly statutory. But there is full power at any time to bring forward the divorce proceeding and to alter any decrees that have been made, and to make decrees in relation thereto if none have been made. Le Beau v. Le Beau (N. H.) 114 Atl. 28; Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580, 13 Ann. Cas. 293; Bickford v. Bickford, 74 N. H. 448, 69 Atl. 579.

A decree for alimony may be made in favor of the libelee after a divorce granted her husband. Cross v. Cross, 63 N. H. 444; Sheafe v. Sheafe, 24 N. H. 564. But the power conferred by the statute to order "a reasonable provision" to be made for the support of the children of the marriage is limited to one requiring such provision to be made "by the guilty party or out of his estate." P. S. c. 175, § 13; Bickford v. Bickford, 74 N. H. 448, 450, 69 Atl. 579; Whipp v. Whipp, 54 N. H. 580, 582. The preceding section relied on by counsel relates to proceedings pendente lite.

The sections are:

"Sec. 12. After the filing of a libel for divorce, the Supreme Court sitting in any county, or any judge thereof, may, on petition of the wife, prohibit the husband from imposing any restraint upon her personal liberty, or from entering the tenement where she resides during the pendency of the libel, and may also, on the petition of either party, make such order respecting the custody and maintenance of the minor children of the parties as shall be deemed expedient and for the benefit of the children.

"Sec. 13. In all cases when there shall be a decree of divorce or nullity, the court shall make such further decree in relation to the maintenance, education, and custody of the children as shall be most conducive to their benefit, and may order a reasonable provision for their support to be made by the guilty party, or out of his estate."

Section 13 was adopted in...