Opinion
No. 3628.
Decided December 23, 1946.
In a libel for divorce brought by a resident of this state upon the ground of abandonment, it is not material to the jurisdiction where such abandonment commenced to exist so long as it continued for the prescribed period of time. Where the court of a foreign jurisdiction has decreed, in an action for separate support brought by the libelee, that the libelee is living apart from the libelant for justifiable cause the full faith and credit clause of the Federal Constitution (art. IV, s. 1) bars the libelant from asserting in a libel for divorce brought in this state that the separation was due to the libelee's fault, in the absence of changed circumstances concerning the rights or relations of the parties and where the decree itself is not questioned.
LIBEL FOR DIVORCE. The libelee, appearing specially, moved to dismiss the libel for lack of jurisdiction. This motion was denied. The libelee then moved for a "new hearing" on the ground that the denial of the motion to dismiss was contrary to the law and the evidence and the weight of the evidence. This motion was also denied, and the libelee excepted.
The libel, which was filed on January 18, 1946, alleges that the libelant has been a resident of Manchester since September 20, 1942, and that the libelee abandoned him without sufficient cause on or about August 10, 1941.
The only grounds for dismissal alleged in the libelee's motion are (1) because the libelant and libelee have never lived together in New Hampshire, and (2) because the cause for divorce as set forth in the libel occurred in Massachusetts.
At the hearing on the original motion counsel for the libelee stated that he had in his possession the copy of a card addressed to the draft board of Lowell, Massachusetts, dated September 24, 1942, and signed by the libelant, indicating that the libelant was then a resident of Lowell.
Counsel for the libelee also offered a certified copy of a decree rendered November 18, 1941, by the Probate Court of Middlesex County, Massachusetts, on a petition for separate support brought by the libelee against the libelant. This decree, reciting that the petitioner for the justifiable cause of cruel and abusive treatment is living apart from her husband, grants to her the custody of their six minor children, prohibits him from imposing any restraint on her personal liberty, and orders him to pay the sum of thirty dollars a week toward her support and that of the children.
The Presiding Justice at the conclusion of the final hearing stated: "The questions which counsel for the libelee raise appear to be questions of fact and could be considered on any hearing on the libel, but so far as any allegations in the libel are concerned, they appear to be sufficient under our statutes."
Transferred by Duncan, J.
Nicholas J. Costakis, for the libelant.
A. Nicholas Soufras and Solomon Baker (of Massachusetts), for the libelee.
On the pleadings as they now stand, the ruling of the Presiding Justice is technically correct, for the libelant alleges the requisite period of residence in New Hampshire (R. L., c. 339, s. 6, cl. IX), and where the cause of divorce "consists of a course of conduct continued during a prescribed period of time, as in the case of desertion, or abandonment, it is not material to the jurisdiction, when or where they commence to exist." Payson v. Payson, 34 N.H. 518, 521.
However, the validity of the Massachusetts decree does not appear to be questioned, nor is there any suggestion that subsequent events have created a new legal situation or altered "the legal rights or relations of the litigants" (see Anno. 138 A.L.R. 346, 360). That being so, the libelee, on filing an appropriate plea, will be entitled to a dismissal of the libel. The issues involved in the suit for separate support in Massachusetts and the divorce case in this jurisdiction are practically the same, and, under the full faith and credit clause of the Federal Constitution (art. IV, s. 1), the libelant is barred from asserting that the separation was due to the libelee's fault. Harding v. Harding, 198 U.S. 317. See Taylor v. Taylor, 72 N.H. 597; Anno. 138 A.L.R. 346, 375-380.
Case discharged.
All concurred.