68 A.2d 538 | N.H. | 1949
The issue involved in this proceeding is the power of the Superior Court which denies a divorce to both parents living apart to award custody and make provision for the support of their minor children. There is a split of authority elsewhere (annotations 113 A.L.R. 901; 151 A.L.R. 1380) and the precise question does not appear to have been determined in this state.
It has been settled in this jurisdiction that the power to award custody and decree support is wholly statutory in cases of divorce (Salta v. Salta,
If the parents are living together and the divorce is denied, it follows under our statutes that no order of custody and support can be made in the Superior Court in that proceeding. A comprehensive study of this problem has stated that such a result is "obviously undesirable and opposed to the best interests of the parties involved and the community." Seventh Annual Report of N.Y. Judicial Council (1941) 269, 274. It was this study which prompted New York to change its law in such cases. Caldwell v. Caldwell,
The result is that the Superior Court may make orders as to custody and maintenance of children whether the divorce is pending or denied providing that the "husband and wife are living apart." The decree is this case was one that could be made under R.L., c. 339, s. 33, although a more appropriate provision of the decree would have been "divorce denied" rather than "libel dismissed."
Exceptions overruled.
*531All concurred.