Wallace v. Wallace

• Decision Date: 04 June 1907
• Citation: 67 A. 580,74 N.H. 256
• Parties: WALLACE v. WALLACE.
• Court: New Hampshire Supreme Court

67 A. 580

74 N.H. 256

WALLACE

v. WALLACE.

Supreme Court of New Hampshire. Strafford.

June 4, 1907.

Transferred from Superior Court, Strafford County; Stone, Judge.

Petition by Nellie P. Wallace against George E. Wallace for revision of an order granting plaintiff $6,000 alimony on her libel for divorce for adultery against defendant. Defendant pleaded an agreement to accept $6,000 in full of alimony as a bar, and a release on payment of such sum, and the case was transferred to the Supreme Court on the question whether such agreement and release constituted a bar to the proceeding. Question answered in the negative, and the case discharged.

The defendant's answer alleged that the judgment for alimony was based upon an agreement of the parties in writing under seal, made with the approval of and adopted by the presiding justice of the court. The agreement was as follows:

"Supreme Court. Strafford—ss.: September T., 1885. In the Wallace Libel for Divorce. Nellie F. Wallace v. George E. Wallace. It is agreed by the parties that the amount of alimony in said case shall be six thousand dollars, and in consideration of the same I hereby relinquish all claim for alimony, present and prospective, and all claim I have or may hereafter assert to the property of said George E. Wallace. Nellie F. Wallace.

"Witness: James A. Edgerly.

"Received six thousand dollars in full payment of the above. Nellie F. Wallace.

"Witness: James A. Edgerly."

Branch & Branch (Oliver W. Branch, orally), William T. Gunnison, and James A. Edgerly, for plaintiff. Leslie P. Snow (by brief and orally) and Frank S. Streeter, for defendant.

PARSONS, C. J. The defendant alleges, in answer to the plaintiff's petition for modification of a decree for alimony in her favor, that such decree was based upon an agreement in writing under seal between the parties to the divorce proceeding; i. e., that the decree was an order for alimony in accordance with the agreement of the parties. It is not contended that the law required the court to order alimony as the parties agreed, or that the agreement deprived the court of jurisdiction as to alimony. It is conceded in the defendant's brief that the court had supervisory authority to ascertain whether the agreement was properly made, free from collusion or any unfairness. 1 Page Cont. §430; 2 Bish. Mar. & Div. §§ 702, 884; 2 Nels. Div. & Sep. § 915; and other authorities cited. The invalidity of such agreements results not merely from the legal incompetency of a married woman at common law to make any contract, but because "such agreements made in advance, if sanctioned by the court without examination, would have a tendency to produce collusion between the parties with a view to the dissolution of the marriage contract between them." Daggett v. Daggett, 5 Paige (N. Y.) 509, 28 Am. Dec. 442; Moon v. Baum, 58 Ind. 194; Hamilton v. Hamilton, 89 Ill. 349; Adams v. Adams, 25 Minn. 72; Speck v. Dausman, 7 Mo. App. 165. As stated in the paragraph from Nelson cited by the defendant (section 915): "The court is not bound by the agreement as to alimony; and, if the amount is not considered sufficient, an additional allowance may be made, or the agreement may be ignored and an adequate allowance made for the wife." But the defendant contends that the adoption of the terms of the agreement in the decree is a conclusive determination that the agreement was fair and properly made. The agreement, so far as it was adopted by the decree, "was merged in the judgment, which, being regular on its face and * * * rendered by a court of competent jurisdiction, is supported by the conclusive presumption that every fact necessary to sustain it was brought to the attention of the court." Julier v. Julier, 62 Ohio St. 90, 113, 56 N. E. 661, 78 Am. St. Rep. 697. The decree therefore conclusively establishes, so long as it stands, that the agreement was adequate and free from collusion; for on no other grounds could a decree in accordance with the agreement have been ordered. The decree is a judgment, which, as it is found to have been regularly entered and free from fraud, cannot be successfully attacked even in a direct proceeding, like the present, except upon some principle which renders judgments respecting alimony susceptible to re-examination and revision for reasons insufficient to authorize such action as to judgments generally.

The foundation of alimony, as known in England, was the obligation of the husband to support his wife. The decree of alimony was merely the enforcement of that obligation in behalf of a wife legally permitted to live separate from her husband. As the measure of the sum required was necessarily the need of the wife and the ability of the husband, the amount decreed as an annual payment was logically affected by a change in either element The order as to the payment of alimony was therefore regarded, not as a final adjudication, but as a determination open to revision from time to time as circumstances might require. Bish. Mar. & Div. §§ 1385-1389; 2 Nels. Div. & Sep. § 933a. "The term 'alimony,' as used in the Constitution and statutes of this state, means that provision or allowance which is made to a wife upon a divorce from the bonds of matrimony." Sheafe v. Sheafe, 24 N. H. 564, 567; Parsons v. Parsons, 9 N. H. 309, 317, 318, 319, 32 Am. Dec. 362. That the judgment allowing a gross sum upon the termination of the marriage relation—the decree for alimony as understood in the early cases here—would not, in the absence of statutory provision, logically be subject to examination and revision as was the decree for annual allowance in England, may be clear. Bish. Mar. & Div. § 600; 2 Nels. Div. & Sep. § 933a. But in 1842 it was provided by the Legislature, as to alimony or any allowance for the wife or children, that "the court, upon proper application and notice to the adverse party, may revise and modify any order made by such court, and may make such new orders as may be necessary." Rev. St. 1843, c. 148, § 16. This statute has been liberally construed, and the construction given has received legislative approval by repeated re-enactments without change. Gen. St. 1867, c. 163, § 15; Gen. Daws 1878, c. 182, § 15; Pub. St. 1901, c. 175, § 18. "Upon proper application and notice, the court may revise and modify any order made, and may make such new orders as may be necessary respecting alimony." Cross v. Cross, 63 N. H. 444, 446. "Applications under this statute * * * may be made at any time, and, when an application is properly made, it is the duty of the court to hear and consider it. * * * On an application for a revision of a decree for alimony, the right to a hearing is expressly granted by the statute, and the question is, not whether the petitioner shall be allowed a hearing, but whether, being heard, a case is made for relief; not whether the evidence shall be received, but whether, being received and considered, it calls for a modification of the decree. A revision of the decree involves a re-examination of the evidence upon which it was made; and evidence used on the original trial, or which might have been presented by the exercise of due diligence, is not for that cause to be rejected. Whether justice requires a modification of the decree must be determined from all the facts in the case." Ela v. Ela, 63 N. H. 116, 121, 122. In Cross v. Cross, there was no decree or application for alimony in the original proceeding. In Ela v. Ela, the libelant was charged with perjury upon the original trial. In Mullin v. Mullin, 60 N. H. 16, $1,500 had been awarded as alimony. Upon...