Summary
In Bourdon v. Bourdon, 105 N.H. 432, 201 A.2d 889, the court dealt with a situation wherein the parties originally were divorced in New Hampshire, the decree awarding custody of three minor children to the wife and making allowance of $20.00 per week for their support.
Summary of this case from Paul v. PaulOpinion
No. 5226.
Argued April 9, 1964.
Decided July 1, 1964.
1. The right of a divorced parent to visit his minor children is an important one and should not be denied without sufficient cause. However the right is not absolute and the duty of a father to support his children continues and may be enforced though the mother is residing with the children in another jurisdiction.
2. The Uniform Reciprocal Enforcement of Support Act (RSA ch. 546 (supp)) is a proper remedy to enforce a duty of support whether or not the obligor flees from the state.
3. The fact that an order requiring the divorced father to make payments for the support of his minor children was suspended until the mother returned to this state with the children did not preclude the Court from revising the order for support where the mother under changed circumstances no longer was able to support them in the foreign state and was receiving welfare assistance there.
4. In proceedings under the Uniform Reciprocal Enforcement of Support Act, a decree reducing the weekly payments which the resident father was required to make under a former suspended order for the support of his minor children with no finding that the father was in arrears but ordered payments to be made in the future did not constitute an order that would "supersede any other order of support" as that phrase is used in the Act (RSA 546:30 (supp)).
Petition for the support of three minor children under the Uniform Reciprocal Enforcement of Support Act (RSA ch. 546 (supp); Laws 1959, 271:1) brought by the plaintiff, a resident of Utah, who is the former wife of the defendant a resident of New Hampshire. After hearing the Court found that the dependent children were in need and that the defendant is chargeable with their support. An order was entered that the defendant pay ten dollars weekly to the New Hampshire Probation Department to be forwarded to the clerk of the Third District Court in Salt Lake City, Utah. The defendant's exception to the denial of his motion to dismiss the petition was reserved and transferred by Grant, J.
The parties were divorced in New Hampshire in 1955. At that time the custody of the three children was awarded to the plaintiff with rights of visitation to the defendant who was ordered to pay twenty dollars a week for support of the children. In 1956 the parties signed an agreement for modification of the decree which was approved by the court. This agreement provided that the weekly payment shall be suspended until the plaintiff returns with the children from Utah and permanently resides in New Hampshire. Under the agreement the defendant consented to the removal of the children from New Hampshire and defendant's rights of visitation were limited to visitation "at the place where said minor children reside."
William Maynard, Attorney General, Alexander J. Kalinski, Assistant Attorney General, and George L. Manias, Assistant to the Attorney General (Mr. Manias orally), for the plaintiff.
William D. Tribble and David J. KillKelley (Mr. KillKelley orally), for the defendant.
The defendant contends that the petition for support under the Uniform Reciprocal Enforcement of Support Act (RSA ch. 546 (supp); Laws 1959, 271:1) should be dismissed for several reasons. It is argued by the defendant that "the right of visiting the children must be available to the respondent before a petition for support can be presented." The right of a parent to visitation is an important one and should not be denied without good cause. Butler v. Butler, 83 N.H. 413. However the right is not an absolute one and the duty to support continues and may be enforced even though the mother is residing with the children in another jurisdiction. Guggenheimer v. Guggenheimer, 99 N.H. 399, 403. In the present case it appears from the Probation Department's report to the Court, which is a part of this record, that the defendant is "unable to care for his children at his home here in this State nor is he able to financially care for them here." This leaves a hollow ring to the defendant's further contention that if the children are returned to New Hampshire, he will support them. The right of a father to visit his children on his own terms or only in the state where he resides is not a prerequisite to the enforcement of a support order either under the Uniform Act or divorce laws of this state.
Although the Uniform Reciprocal Enforcement of Support Act is aimed at preventing runaway fathers from escaping their obligations, it is not limited to that one objective. This is evident from RSA 546:9 (supp) which provides that "all duties of support . . . are enforceable by petition irrespective of the relationship between the obligor and the obligee." RSA 546:4 (supp) also provides that "duties of support arising under the law of this state . . . bind the obligor, present in this state, regardless of the presence or residence of the obligee." The Uniform Act is a proper remedy to enforce a duty of support whether the father flees or not. "The Act applies to any situation where there is a breach of a duty of support and the flight of the father is not a controlling fact." Brockelbank, Interstate Enforcement of Family Support 60 (1960).
The remedies under the Uniform Act ". . . are in addition to and not in substitution for any other remedies." RSA 546:3 (supp); Annot. 42 A.L.R. 2d 768. The modification agreement in 1956 suspending payments by the defendant until the plaintiff returns with the children to New Hampshire is not a bar to the present proceeding. The plaintiff undertook to support her children in Utah and while she was able to do so payments by the defendant were suspended. Now that she is receiving welfare assistance in Utah, this is a change of circumstances which warrants revision of orders for support and custody by the court of this state under its continuing authority. RSA 458:14; Mauzy v. Mauzy, 97 N.H. 514.
RSA 546:30 (supp) reads as follows: "APPLICATION OF PAYMENTS. No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both." It is contended this prevents the New Hampshire court from changing its previous decree of 1956 or making any new decree for support. This section of the Uniform Act is muddy in meaning. Ehrenzweig, Conflict of Laws 271, 277-278 (1962). However the draftsmen of this section could not have intended an "absurd result" (Ehrenzweig, supra) and in support proceedings in this jurisdiction we have attempted to avoid this pitfall in related situations. State v. Cote, 104 N.H. 345, 348. In the present case the court reduced the weekly payment from twenty to ten dollars, made no finding that the defendant was in arrears, and ordered payments to be made in the future. This order did not "supersede any other order of support" as that phrase is used in RSA 546:30 (supp). See Keene v. Toth, 335 Mass. 591. The motion to dismiss the petition for support was properly denied by the Trial Court.
Exceptions overruled.
All concurred.