Opinion
No. 4079.
Decided January 2, 1952.
The question of whether the allegations of fact as stated in a libel are sufficiently definite and specific should be raised by motion of the libelee, preferably before joining issue, requesting that the libelant's allegations be more particularized or that the libel be dismissed on failure to do so.
The dismissal of a libel before hearing was not required as a matter of law for lack of definiteness where it was adequate to inform counsel of the nature of the dispute and to enable the Court to decide the controversy on its merits.
LIBEL FOR DIVORCE, alleging treatment such as to seriously injure health and endanger reason. R.L., c. 339, s. 6 V. The cause for divorce was set out in the libel as follows: "Yet the said Andrew Kotarba wholly regardless of his marriage covenant and duty does so treat, and for a long time, viz: from shortly after their marriage, has so treated the said libellant as seriously to endanger her reason and injure her health, and on divers days and times has threatened the libellant, has used vile and profane language against the libellant and her children, and has often falsely accused the libellant of having affairs with and affection for other men and in other respects has displayed violent jealousy; and has indulged in intoxicating, liquors; and has awakened the libellant from sleep in the early hours of the morning to cook him meals; that as a result of the above the libellant has been put in fear of serious bodily injury, has become worried and nervous, and her health has been injured and her reason endangered."
Libelee filed an answer admitting certain allegations in the libel, denying others and asking that the libel be dismissed.
After hearing, the Court (Grimes, J.) decreed a divorce on the ground of "treatment as to seriously injure health."
Before hearing the libelee moved that the libel be dismissed "because it does not set forth any cause or causes for divorce in that whatever is stipulated in said libel is vague, indefinite, and not specific." This motion was denied as were his motions to dismiss made at the end of libelant's evidence and at the close of all the evidence. Libelee's exceptions to the denial of these motions were reserved and transferred.
Devine Millimet and Earl J. Dearborn (Mr. Dearborn orally), for the libelant.
Chretien Craig and James A. Manning (Mr. Craig orally), for the libelee.
In support of his position the libelee relies mainly on the cases of K v. K, 43 N.H. 164; Smith v. Smith, 43 N.H. 234, and Geers v. Geers, 95 N.H. 316. An examination of those decisions will disclose that the libel in each of them consisted of a general charge made against the libelee without setting forth the main facts upon which the charge was to be maintained. The libel in the case before us does specify the acts complained of but fails to set them out with such particularity of time, place, and in some instances, circumstances as is required by K v. K, supra; Smith v. Smith, supra; and Superior Court rule 125 (93 N.H. appendix).
This defect however should be attacked by the libelee by motion, made preferably before joining issue (71 C.J.S. 1119), asking that libelant be made to particularize his allegations in those respects or that the libel be dismissed on failure to do so. Buck v. Buck, 97 N.H. 178.
The libel here was adequate to inform counsel of the nature of the dispute, he was able to file an answer, and was sufficient to enable the Court to decide the controversy on its merits. Morency v. Plourde, 96 N.H. 344; 17 Am. Jur. 302. Libelee's motion to dismiss made before hearing was therefore properly denied.
It seems to us however that much of the valuable time of court and of counsel would be saved and the ends of justice better and easier served if attorneys for libelants would strive to draw their libels in accordance with the requirements of Superior Court rule 125.
There was sufficient evidence to support a decree of divorce on the grounds of treatment such as to seriously injure health. Szulc v. Szulc, 96 N.H. 190. Accordingly the order must be
Exceptions overruled.
All concurred.