State by Cote v. Cote

• Citation: 104 N.H. 345,186 A.2d 832
• Parties: STATE by Helen COTE, Complainant, v. Henry E. COTE.
• Decision Date: 28 December 1962
• Court: Supreme Court of New Hampshire

Page 832

186 A.2d 832

104 N.H. 345

STATE by Helen COTE, Complainant, v. Henry E. COTE.

Supreme Court of New Hampshire.

Argued Nov. 7, 1962.

Decided Dec. 28, 1962.

William Maynard, Atty. Gen., and Alexander J. Kalinski, Asst. Atty. Gen., for the State of New Hampshire.

John J. Wholey, Portsmouth, by brief and orally, for defendant.

BLANDIN, Justice.

The question before us is whether the admitted father of three illegitimate children, who has not been found chargeable under the bastardy statute (RSA 168:1, 4 Supp), may be found guilty upon a complaint under RSA 460:23 Supp. The parties have agreed upon the following facts:

Henry E. Cote and Helen Cuvellier Morey set up housekeeping in Portsmouth in August, 1951, without having been married. They moved about to several different addresses, all in Portsmouth, finally settling at 35 South Mill Street, where Helen and the children now remain. Mr. Cote moved out in August, 1960. While they lived together there were three children born, the birth certificates reciting Henry E. Cote as father and Helen C. Cuvellier as mother. All three children were born in Portsmouth and the returns of their births were filed with the City Clerk there.

At all times from August, 1951, until he moved out nine years later in August, 1960, the defendant paid the rent. He also paid the hospital expenses of Helen and visited her while she was in the hospital at the birth of the three children. During the entire period that Henry and Helen lived together, she was known as Mrs. Cote to all the neighbors. The defendant introduced her to others as his wife, the children were acknowledged by him to be his, and were entered in school under his name. No bastardy proceedings were ever brought at any time to charge the defendant as being the father of the children. It is agreed that there are necessitous circumstances.

RSA 460:23 Supp, under which the complaint is brought, reads as follows: 'If any husband or father shall neglect to maintain his wife or children when such wife or children are dependent upon his earnings for support, or neglects his employment or misspends his earnings so as not to provide for the support of his wife or children, he shall be imprisoned not more than one year, or fined not more than one hundred dollars, or both; such fine, if any, to be paid or applied in whole or in part to the support of the wife or children as the court may direct.'

In the 1961 Annual Survey of American Law, it is stated that 'No pot boils a more purulent mess than the one reserved for family problems.' P. 467. The situation before us presents an outstanding example of this truism. The father here, during a nine-year period, has raised, acknowledged as his own, and supported his three children. He has also supported their mother, maintaining an establishment with all the outward indicia of marriage, although--apparently unknown to outsiders--it was without benefit of clergy. After nearly a decade of family life, the defendant apparently decided that such togetherness was not for him, nor was it for him to bear any further responsibility toward his three children, but rather for others to do so. He thereupon moved out, leaving his children in necessitous circumstances or, so far as he was concerned, in layman's language, without food, clothing or shelter.

He bases his defense mainly on State v. Byron, 79 N.H. 39, 104 A. 401, where upon an indictment under Laws 1913, ch. 57, s. 1, the forerunner of RSA 460:23 Supp, the Court held that the alleged father of an illegitimate child could not be found guilty unless he had first been held chargeable for the child's support as its actual father under the Bastardy Statute, P.S. ch. 87, s. 1, now RSA 168:1 Supp. The opinion states that 'in the absence of a statute or contract, giving him the right to...