Wallace v. Wallace

• Decision Date: 06 April 1909
• Citation: 72 A. 1033,75 N.H. 217
• Parties: WALLACE v. WALLACE.
• Court: New Hampshire Supreme Court

72 A. 1033

75 N.H. 217

WALLACE

v. WALLACE.

Supreme Court of New Hampshire. Strafford.

April 6, 1909.

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

Action by Nellie H. Wallace against George E. Wallace for divorce. On petition for revision of a decree as to alimony. From an order granting the petition, defendant brings exceptions. Sustained, and case discharged.

After the decision in this case reported in 74 N. H. 256, 67 Atl. 580, upon further hearing the superior court (Stone, J.) found that justice and equity required a modification of the decree, and ordered the payment of additional sums as alimony. The defendant excepted to the decree, to the failure of the court to make certain findings of fact, and to the refusal to find and rule that the agreement set forth in the report of the case in 74 N. H. 256, 67 Atl. 580, released all the right of the plaintiff to future alimony and was a bar to the maintenance of this proceeding. At a hearing for settling the defendant's exceptions held November 24, 1908, after the announcement of the decree, the plaintiff moved for an allowance to counsel to be paid by the defendant pending appeal to the Supreme Court. Upon this motion "it was ordered that the defendant, George E. Wallace, pay counsel for the plaintiff the sum of $250 on or before the 10th day of December, 1908. If, however, the proposed case on appeal to the Supreme Court does not go forward, this order is to be vacated." The defendant's exception to this order was allowed.

Oliver E. Branch and William T. Gunnison, for plaintiff. Laurence V. McGill, for defendant.

PARSONS, C. J. Alimony in this state is an allowance to the wife upon the termination of the marital relation by divorce. The authority of the court to make such allowance is purely statutory. Wallace v. Wallace, 74 N. H. 256, 67 Atl. 580; Sheafe v. Sheafe, 24 N. H. 564; Parsons v. Parsons, 9 N. H. 309, 32 Am. Dec. 362. Under the construction that has been given the statute, with the exception of a small amount granted the wife under some circumstances when she is libelee for the purpose of making her defense, no award is made except upon a decree of divorce. When the wife is libelant, her expenses are properly considered in determining the amount of alimony. But the wife as libelee is not entitled to an allowance for her support, nor as libelant to one for the purpose of prosecuting the suit pending the final determination of the cause. Rowell v. Rowell, 63 N. H. 222; Ray v. Adden, 50 N. H. 82, 84, 9 Am. Rep. 175; Reporter's Note, 49 N. H. vii; Morrison v. Holt, 42 N. H. 478, 482, 80 Am. Dec. 120; Morris v. Palmer, 39 N. H. 123, 128.

Section 18, c. 175, Pub. St. 1901, authorizing the court to revise and modify any order made and to make such new orders as may be necessary, does not authorize the court in revising an earlier order to make one which could not have been made in the first place. It does not authorize an allowance to enable the wife to prosecute an application for alimony. In the present case the facts had been determined and the amount of additional alimony decided. In settling the amount, the expense incurred by the libelant was a proper subject for consideration, in which would be included the probable expenditure for conducting the suit to an end in the usual course. The defendant had the right to transfer to this court, upon exceptions duly...