Summary
finding that state-support statute allows court to impose continuing obligation on estate
Summary of this case from Kiken v. KikenOpinion
No. 4367.
Argued February 1, 1955.
Decided March 11, 1955.
In divorce proceedings, the Trial Court may in the exercise of its discretion under the statute (R. L., c. 339) order a father to provide a fund for the support of his minor children which will be effective after his death and binding on his estate although it affects his right of testamentary disposition. The statute (R. L. c. 353, s. 19 V) providing that an estate is chargeable with the support of minor children until they reach seven years of age, if the estate is solvent, does not limit the authority of the court in divorce proceedings.
There was no abuse of discretion in the decree requiring that such fund be provided or in the order permitting the minor children to be with their mother although she was temporarily residing outside of the United States.
LIBEL FOR DIVORCE, in which the original decree of divorce was granted in 1948. The following case was transferred by Grimes, J.
"This decree was modified from time to time, and on September 4, 1952 when the libelant filed her last motion to modify, the decree then in effect provided in substance as follows:
"The libelant had been awarded custody of the three minor children, Julia F., Fred S. Jr., and Richard S. Guggenheimer. She was permitted to remove the children from New Hampshire but restrained from removing them outside the continental limits of the United States. The libelee was entitled to have the children with him during the three summer months. The libelee was required to pay to the libelant for the children's support the sum of $475. per month except when the libelant and the children were occupying government quarters when the monthly payments were reduced to $425. Payments were to be suspended while the children were with the libelee in the summer time. The children did not come to stay with the libelee during the summer of 1952, but remained with the libelant at Cherry Point, North Carolina, where her husband, an Air Force officer, was then stationed. The libelee made no support payments to the libelant for the period from June 15 to September 15, 1952.
"After hearing the court on November 19, 1952 handed down an order modifying the then existing order in the following respects:
"1. Permission was granted to the libelant to remove the children outside the continental limits of the United States for not more than two years at any time.
"2. The monthly support payments [for the children] were increased to $525.00 except when the libelant and the children were occupying government quarters when they were fixed at $475.
"3. The libelee was ordered to pay the monthly payments that accrued during the summer months of 1952.
"4. The libelee was ordered to establish a fund of $50,000. through life insurance or otherwise which in the event of his death would be available for the support of the children during their minority."
The Court's decree with respect to the establishment of a fund for the support of the children was as follows:
"Insofar as this Court has the power to make it, those portions of this Decree and any subsequent modification thereof with respect to support of the minor children will survive the death of the libelee and be binding upon his executors or administrators and upon his estate. The said Fred S. Guggenheimer is hereby ordered to establish a fund through life insurance or otherwise in the amount of Fifty Thousand Dollars ($50,000.00) which will be available in the event of his death before the youngest of his children shall reach the age of twenty-one years from which the monthly payments under this or any future order for support may be met, said fund to be established on terms satisfactory to both parties on or before January 1, 1953, and if the terms of the establishment of said fund are not agreed upon prior to that date the Court will enter such orders as may be necessary to effectuate the purpose of this Decree."
The Court granted the libelee's motion for stay of execution insofar as it related to the establishment of the fund. The libelee's exceptions to the Court's decree in all respects was made a part of the reserved case. The libelee's motion to reopen the case was allowed, but the previous order made in 1952 was affirmed March 27, 1953. Other facts are stated in the opinion.
The libelant, pro se, furnished no brief.
Sheehan, Phinney Bass (Mr. Phinney orally), for the libelee.
The principal issue in this case is whether the Superior Court in a divorce proceeding has the power to order a father to provide a fund for the support of his minor children which will be effective after his death and binding on his estate. There is considerable conflict in the decisions of other jurisdictions due in a large measure to the diverse statutory provisions that exist in the various states. 2 Nelson, Divorce and Annulment (2d ed.) s. 14.91; anno. 18 A.L.R. (2d) 1126. The issue has never been resolved in this state but is squarely raised in this proceeding. See Leclerc v. Leclerc, 85 N.H. 121, 122.
We start with the basic proposition that the power to make allowances for the support of minor children is wholly statutory. Salta v. Salta, 80 N.H. 218; Kennard v. Kennard, 81 N.H. 509. The Superior Court sitting as a divorce court has no independent equity jurisdiction over allowances for support of minor children. Trow v. Trow, 95 N.H. 529. The statute authorizing allowances for support and education of children is general in its terms (R. L., c. 339, s. 15) and the court may order that money or property be placed in trusteeship (s. 17) or may decree that security or bond be given to assure the payment thereof (s. 18). While these statutory provisions contain no express authority for making support orders binding on the husband's estate, similar provisions elsewhere have been held broad enough to allow it. Several jurisdictions follow the early leading case of Miller v. Miller, 64 Me. 484, in allowing orders for the support of children to be made binding on the estate of the father. "Death of the father required to support his children does not necessarily terminate the allowance made for their support . . . The divorce decree may compel the husband, in a proper case, to give security for the support of his children, so as to bind his estate." 2 Nelson, Divorce and Annulment (2nd ed.) s. 14.91.
Since death usually terminates alimony (Robertson v. Brewer, 88 N.H. 455), it is urged that the same rule should apply to support orders for children. However in that case the court said (p. 456): "Whether a decree specifically requiring the payment of alimony during the life of the wife may be enforced after the death of the husband, as in Farrington v. Company, 280 Mass. 121, is a question upon which no opinion is expressed." Likewise in Leclerc v. Leclerc, 85 N.H. 121, 123, the court qualified the general rule in the following language: "If an order for the payment of alimony does survive the death of the payor, the power of the court to revise or modify the order ought in reason to persist and the statute above referred to (P. L., c. 287, s. 12) [now R.L., c. 339, s. 12] would no doubt be effective to accomplish this result." It would appear that our statutes permitting allowances for the support of minor children and awards of alimony do not preclude making an order during the life of the father binding on his estate if there is occasion to do so. Anno. 18 A.L.R. (2d) 1126. Of course there will be many cases where "a sense of justice does not call so loudly, or at all, for a decision that the obligation for support should continue after the father's death." Id., 1128. A case of this nature which illustrates that point is Gardine v. Cottey, 360 Mo. 681.
It is urged that since R. L., c. 353, s. 19 V provides that an estate is chargeable with the "support and maintenance of infant children . . . until they arrive at the age of seven years, if the estate is in fact solvent," this indicates that an estate should not be liable for support of minor children over seven years of age. Dolloff v. Dolloff, 67 N.H. 512. This statute applies to the estate of every father whether married or divorced and was not intended to limit the authority of the court in divorce proceedings.
The argument is made that such an order destroys the father's right of testamentary disposition. While any court order calling for the payment of money in a gross sum or in periodic payments necessarily affects the amount that a person can give away by will, it is not for that reason invalid. In effect the children become judgment creditors by force of the decree for support and this is a contingency that rightfully limits any testamentary disposition. The principle that a man must be just before he is generous applies to divorce proceedings.
Examination of the records supports the Court's decree for custody and support. There is no indication that the Court has considered extraneous matters which would result in a ruling that there had been an abuse in discretion as in Kennard v. Kennard, 87 N.H. 320. The fact that the children's grandfather and others had established trust funds which could be used for the minor children in the event of the libelee's death did not preclude the Court from requiring the libelee to provide for the present support of the children. While the right to have access to one's children is an important one, and should not be jeopardized without good reason, (Butler v. Butler, 83 N.H. 413) we cannot say that the Court was in error in allowing the children to be with their mother even though she was temporarily residing in Alaska. The Court has a wide discretion in determining the amount that a father shall be required to contribute for the support of his family (Ballou v. Ballou, 95 N.H. 105) and we cannot say as a matter of law that there has been an abuse of discretion in this case. Benjamin v. Benjamin, 99 N.H. 117.
Exceptions overruled.
All concurred.