Veino v. Veino

• Citation: 78 A.2d 522,96 N.H. 439
• Parties: VEINO v. VEINO.
• Decision Date: 06 February 1951
• Court: New Hampshire Supreme Court

Page 522

78 A.2d 522

96 N.H. 439

VEINO v. VEINO.

Supreme Court of New Hampshire.

Feb. 6, 1951.

Maurice A. Broderick, Manchester (by brief and orally), for plaintiff.

James I. Hines, Hillsborough, (by brief and orally), for defendant.

DUNCAN, Justice.

The reserved case erroneously recites that 'this is a matter in equity.' It is a petition for a legal separation, or 'limited divorce' under the provisions of R.L. c. 339, §§ 24, 25. By the Constitution, jurisdiction of 'All causes of marriage divorce and alimony' is vested in the superior court 'until the legislature shall by law make other provision.' Const. Pt. II, Art. 76. This article 'conferred a jurisdiction unknown to the law of England.' Clough v. Clough, 80 N.H. 462, 466, 119 A. 327, 329. 'The power of the court was considered to be derived from the Legislature acting under this constitutional provision, and not from the ecclesiastical courts, who did not possess it.' Id. 80 N.H. at page 466, 119 A. at page 329. In Parsons v. Parsons, 9 N.H. 309, the court pointed out that 'alimony' in its more usual acceptation at that time (1838) was applicable to an annual sum 'decreed upon a separation or divorce, a mensa et thoro,' and observed: 'We have here no divorces of that character.' Id., 9 N.H. 317. The decision also indicates that prior to the Revolution divorces were 'supposed uniformly to have been granted by the legislature.' The first legislation specifying causes for which divorces might be granted, and authorizing the use of judicial process to implement decrees of divorce, was adopted in 1791, and related to 'divorces from the Bond of matrimony,' with no provision for limited divorces from bed and board. 5 N.H.Laws 732. From 1791 to 1909, the authority of New Hampshire courts with respect to divorce was limited to the granting of absolute divorces. This authority of the court has consistently been deemed to be wholly statutory. Shatney v. Shatney, 76 N.H. 391, 83 A. 124; Hartnett v. Hartnett, 93 N.H. 406, 43 A.2d 153.

By Laws 1909, c. 68, jurisdiction was first conferred upon the courts to grant limited divorces or legal separations, such as had long previously been granted by the ecclesiastical courts of England. See Clough v. Clough, supra, 80 N.H. 463, 464, 119 A. 327. This jurisdiction, like the jurisdiction to grant absolute divorces, must be regarded as strictly statutory. 'No ecclesiastical courts, with a jurisdiction similar to those of England, were ever organized here' and chancery courts have never been considered to have original jurisdiction either of divorces, or of petitions by a wife 'to require a settlement or provide for a maintenance.' Parsons v. Parsons, supra, 9 N.H. 317, 336; Cf. Baker v. Baker, 90 N.H. 307, 9 A.2d 767. The jurisdiction of the Superior Court, to require a disclosure of the husband's assets on a petition for legal separation, must therefore depend upon statutory authority. Hartnett v. Hartnett, supra.

R.L. c. 339, § 25 provides in part: 'Upon such petition the procedure shall be the same as upon libels for divorce, and the court shall have the same power in all matters relating to * * * allowances, alimony, * * * and division or apportionment of the property of the parties, as in cases of divorce.' The section upon which the plaintiff relies to support the order of the court contains these provisions: 'Alimony. Upon a decree of nullity or divorce, the court may restore to the wife all or any part of her estate, and may assign to her such part of the estate of her husband, or order him to pay such sum of money, as may be deemed just * * *; and may compel the husband to disclose, under oath, the situation of his property; and before or after the decree, may make such orders and use such process as may be necessary.' R.L. c. 339, § 16. The latter clause of the section formerly read: 'such orders and * * * process as may be necessary to carry the same into full effect, and to protect the rights of the wife.' Revised Statutes 1842, c. 148, § 13. The change in phraseology which occurred in the revision of 1867, was intended to be 'merely verbal.' Comm'rs. Report [1867] iv.

The defendant, relying upon Rowell v. Rowell, 63 N.H. 222, argues that disclosure may be compelled only after a decree of divorce or separation has been entered. The Rowell case arose prior to the enactment of the provisions for a temporary allowance to the wife which are now contained in R.L. c. 339, § 14, Laws 1919, c. 39. The court said: 'The order asked for is for alimony before there has been a decree of nullity or divorce. It is contrary to the construction of the statute, settled by long and uniform practice, and should not be made.' Id., 63 N.H. 225. Obviously, the case relied upon is no longer controlling with respect to temporary allowances which are now permitted by statute. Neither do we think it controlling of the issue in this case. An order for disclosure, unlike one for alimony, can confer upon the wife no rights in the property of the husband. His substantive rights will remain unaffected, unless and until a separation (or divorce) is granted to the wife.

Literally construed, the provisions of section 16, c. 339, R.L. which specifically authorize compulsory disclosure, do so only 'upon a decree of nullity or divorce'. In this respect they do not differ materially from the original provisions for requiring disclosure by the husband of the situation 'at the time of such divorce of personal property received by him in the right of the wife.' 5 N.H.Laws, supra, 733. If they were the only provisions upon which the order of the Trial Court might be based, the defendant might well be sustained in his position.

The limited authority contained in the statute of 1791 was amplified by the revision of 1842, however, to provide that the court might 'before or after such decree * * * make such orders and use such process as may be necessary to carry the same into full effect, and to protect the rights of the wife.' R.S.1842, ...