Taylor v. Taylor

• Decision Date: 30 June 1967
• Docket Number: No. 5610,5610
• Citation: 230 A.2d 737,108 N.H. 193
• Parties: Olive L. TAYLOR v. Herbert L. TAYLOR.
• Court: New Hampshire Supreme Court

Page 737

230 A.2d 737

108 N.H. 193

Olive L. TAYLOR v. Herbert L. TAYLOR.

No. 5610.

Supreme Court of New Hampshire.

Argued May 2, 1967.

Decided June 30, 1967.

George P. Cofran and Donald A. Ingram, Concord, for Olive L. taylor.

Samuel T. Holmgren, Concord, by brief and orally for Herbert L. Taylor.

GRIMES, Justice.

The parties were divorced on Olive's cross libel by decree dated January 5, 1956 which included by stipulation an order that Herbert pay $40.00 per week toward her support. Since children were not involved, the order was limited by RSA 458:19.

Prior to said decree, Herbert signed a supplemental agreement as follows:

'Supplementing the stipulation which I have this day signed in the above entitled matter, subject to the approval of the Court, I further agree to pay the sum of forty dollars ($40.00) a week to Olive L. Taylor for her support for and during her lifetime or until her remarriage.

'This agreement is made with the full knowledge that the agreement made in the stipulation is only for a three year perior, and it is intended to assure support of the said Olive L. Taylor for the rest of her life or until her remarriage. This agreement is to terminate on my death.'

This agreement was not submitted to the Court until the hearing on the present petition. Herbert has paid the $40.00 per week ever since, but in 1965 he filed an application for modification of the order for alimony.

After hearing, the Court (Dunfey, J.) after ruling that the supplemental agreement was not binding on the Court and that the provisions of RSA 458:19 are applicable to the original decree, found that while the change in Herbert's circumstances have been 'substantial are not of such magnitude to afford the relief sought' and ordered Herbert to 'continue at this time the support payments he knowingly and willingly agreed to pay.'

The case is transferred to us on the exceptions of Herbert to the rulings of the Trial Court.

RSA 458:19 provides that if there are no children involved, orders for the support of the wife 'shall be effective for not more than three years from date thereof, but such order may be renewed, modified or extended if justice requires for periods of not more than three years at a time.' Since divorce is statutory, the Court has only such power in this field as is granted by statute. Stetson v. Stetson, 103 N.H. 290, 171 A.2d 28. The order for support in this case therefore, not having been 'renewed, modified or extended,' expired at the end of three years.

When the supplemental agreement was entered, divorce proceedings were already pending and it is not suggested that Olive did not have a cause for divorce. The agreement appears to have been the result of the same negotiations and based upon the same consideration as the stipulation in accordance with which the decree of January 5, 1956 was entered. The fact that it was not included in the stipulation or otherwise submitted to the Court does not affect whatever validity it otherwise has between the parties. Because of the limitations of RSA 458:19, the Court could not have incorporated it in its decree and it was therefore proper not to have incorporated it into the stipulation.

A decree could not have been entered in accordance with the supplemental agreement because RSA 458:19. Neither was the agreement subject to modification by the court under the statute. Schillander v. Schillander, 307 Mass. 96, 29 N.E.2d 686; Annot. 48 A.L.R.2d 318, 321. See Wallace v. Wallace, 74 N.H. 256, 67 A. 580. When...