Opinion
Decided June 24, 1937.
The operation of the statute making the desertion of minor children by their father a crime (P.L., c. 379, s. 2) is not suspended by a divorce and decree that he furnish them support. Where upon an indictment for non-support of minor children, sentence is suspended on condition that certain payments be made to the children's custodian by the respondent who is also ordered to give a bond therefor running to the clerk of court, debt on the bond is properly brought by the clerk and the custodian is properly joined as plaintiff in interest.
DEBT, upon a bond signed by the defendants and conditioned upon the performance by the defendant, Thomas H. McQuaid, of an order of the Superior Court to make certain payments for the support of his minor children. Judgment against the defendants having been rendered by default, execution was issued upon March 2, 1934 and a levy was commenced by a deputy sheriff in due form against the real estate of the two sureties. Upon June 20, 1934, the defendant, Mary A. McQuaid, filed a motion to recall said execution upon the following grounds: (1) that the bond in question was a penal bond and, as such, not enforceable by a civil suit, and (2) that the said Julia McQuaid, having elected her remedy by a petition in equity asking for relief, cannot maintain both that action and her action at law based upon the bond furnished in the criminal prosecution. Transferred without ruling by Burque, J.
From the record the following facts appear: Upon February 20, 1930, a decree of divorce was granted to Julia K. McQuaid from her husband, the defendant Thomas H. McQuaid, by the terms of which custody of their two minor children was awarded to her and said Thomas H. McQuaid was ordered to pay her the sum of twelve dollars per week commencing as of January 1, 1930, for the support of said children. At the September, 1930 term of the Superior Court for the County of Hillsborough, the said Thomas H. McQuaid being in arrears in his payments for the support of said children, an indictment was returned against him by the grand jury charging that he did "wilfully neglect and refuse to provide for the support of his legitimate minor children." Upon April 29, 1931, the said Thomas H. McQuaid was arraigned upon this indictment, and upon June 30, 1931, entered a plea of nolo. Upon this plea the said McQuaid was sentenced by the Superior Court to not less than one year and one day nor more than fifteen months in the state prison, with the further order: "Mittimus deferred so long as the respondent pays his wife ten dollars per week for the support of their children and two dollars per week until the unpaid balance of six hundred thirty-six dollars is paid." In order to secure the performance of this condition, it was also ordered that the said McQuaid furnish a bond in the sum of one thousand dollars, with responsible sureties, conditioned to comply with said order, and the bond in suit running to the Clerk of the Superior Court was accordingly furnished. The condition of the bond reads as follows:
"The condition of this obligation is such that, whereas on the thirtieth day of June, 1931, the said Thomas H. McQuaid has been arraigned before the Superior Court for said county on an indictment for non-support of his minor children, and has been ordered by said Superior Court to make certain payments for the support of said children, and to make payment of amount in arrears for the support of said children.
"Now, if the said Thomas H. McQuaid shall well and truly pay the sum of ten dollars per week for the support of said minor children on Monday of each week after date hereof, and two dollars per week towards said amount in arrears on each Monday after date hereof until fully paid, then this obligation shall be void, otherwise to be of full force and effect."
The present action was commenced upon May 12, 1932.
Arthur B. Hayden, for the plaintiff.
Paul J. Doyle, for the defendant, furnished no brief.
Although the defendant's motion seeks only the recall of the outstanding execution, it was apparently designed to accomplish the purpose of a motion to strike off the default and arrest the judgment entered herein, and seems to have been so treated in the Superior Court. We, accordingly, consider it upon that basis.
Neither of the so-called grounds for the motion suggests a valid reason why it should be granted. No recognizable rule of law is invoked by the assertion that "the bond in question was a penal bond and, as such, not enforceable by a civil suit." The context indicates that by the term "penal bond" the defendant means a bond furnished in a criminal proceeding. As to all such undertakings, it is well settled law that "the state may proceed civilly by scire facias upon the bail bond or the recognizance, or by an action of debt to recover the penal amount thereof." 3 R.C.L. Tit., Bail and Recognizance, s. 79. Such is the established procedure in this State. State v. Eastman, 42 N.H. 265; State v. Ricciardi, 81 N.H. 223. The Clerk of the Superior Court, who is the obligee named in the bond, obviously has no beneficial interest therein. It is clear that the bond was furnished to secure the required payments to Julia K. McQuaid as custodian of the children. The clerk is seeking its enforcement for her benefit as such custodian and she was properly named as plaintiff in interest in this action.
The second ground upon which the motion is based involves the assumption that because the defendant had been ordered to support his minor children by the terms of the divorce decree, the criminal law could no longer be invoked to compel his performance of his legal obligation. The contention, therefore, is that the bond given by the defendant, Thomas H. McQuaid, in order to secure a suspended sentence in the criminal proceedings against him is unenforceable for the benefit of his children. There is no basis for the assumption which underlies this argument. There is nothing in the desertion statute under which the defendant was indicted (P.L., c. 379, s. 2) to indicate that its operation is suspended in cases where a divorce has been granted and the husband has been ordered to furnish support for his minor children. On the contrary, the policy of the State to permit the concurrent use of both criminal and civil process is clearly indicated in the closely related non-support statute (P.L., c. 288, ss. 14-19) which authorizes the criminal prosecution of a husband or father who neglects to maintain his wife or children (Ib., s. 15) and further provides as follows: "No such conviction or sentence shall in any manner affect any order for support theretofore made against the defendant" (Ib., s. 16). The purpose of both statutes, so far as children are concerned, is obviously the same and both had a common source in Laws of 1913, c. 57, s. 1. The conclusion is, therefore, almost irresistible that the legislative policy with reference to outstanding orders for support was the same in both instances and we have no hesitation in holding that criminal prosecutions under P.L., c. 379, s. 2 are not subject to any limitation by reason of prior divorce proceedings which do not terminate the father's duty to support his minor children. Such is the clear intimation of the opinion in State v. Byron, 79 N.H. 39.
The most significant fact which appears in the record before us is that the defendant, Thomas H. McQuaid, has consistently and wilfully defied the orders of the Superior Court with reference to the support of his minor children. The security which he gave for the performance of these orders should be made fully effective, and the motion should, therefore, be denied.
Motion denied.
All concurred.