67 A. 580 | N.H. | 1907
The defendant alleges, in answer to the plaintiff's petition for modification of a decree for alimony in her favor, that such decree was based upon an agreement in writing under seal between the parties to the divorce proceeding, i. e., that the decree was an order for alimony in accordance with the agreement of the parties. It is not contended that the law required the court to order alimony as the parties agreed, or that the agreement deprived the court of jurisdiction as to alimony. It is conceded in the defendant's brief that the court had supervisory authority to ascertain whether the agreement was properly made, free from collusion or any unfairness. 1 Page Cont., s. 430; 2 Bish. Mar. Div., ss. 702, 884; 2 Nels. Div. Sep., s. 915; and other authorities cited. The invalidity of such agreements results not merely from the legal incompetency of a married woman at common law to make any contract, but because "such agreements made in advance, if sanctioned by the court without examination, would have a tendency to produce collusion between the parties with a view to the dissolution of the marriage contract between them." Daggett v. Daggett, 5 Paige 509; Moon v. Baum,
The foundation of alimony, as known in England, was the obligation *258
of the husband to support his wife. The decree of alimony was merely the enforcement of that obligation in behalf of a wife legally permitted to live separate from her husband. As the measure of the sum required was necessarily the need of the wife and the ability of the husband, the amount decreed as an annual payment was logically affected by a change in either element. The order as to the payment of alimony was therefore regarded, not as a final adjudication, but as a determination open to revision from time to time as circumstances might require. 1 Bish. Mar. Div., ss. 1385-1389; 2 Nels. Div. Sep., s. 933 a. "The term `alimony,' as used in the constitution and statutes of this state, means that provision or allowance which is made to a wife upon a divorce from the bonds of matrimony." Sheafe v. Sheafe,
But in 1842, it was provided by the legislature, as to alimony or any allowance for the wife or children, that "the court, upon proper application and notice to the adverse party, may revise and modify any order made by such court, and may make such new orders as may be necessary." R. S, c. 148, s. 16. This statute has been liberally construed, and the construction given has received legislative approval by repeated reenactments without change. G. S., c. 163, s. 15; G. L., c. 182, s. 15; P. S., c. 175, s. 18. "Upon proper application and notice, the court may revise and modify any order made, and may make such new orders as may be necessary respecting alimony." Cross v. Cross,
In Cross v. Cross, there was no decree or application for alimony in the original proceeding. In Ela v. Ela, the libelant was charged with perjury upon the original trial. In Mullin v. Mullin,
As under the statute any order respecting alimony may be reexamined and revised, the court has no power to except from the operation of the statute an order decreeing alimony in accordance with the agreement of the parties. If the question were at all in doubt, the liberal construction heretofore given the statute would resolve it in favor of the maintenance of the petition. It is said that there is conflict in the authorities upon the question whether, under similar statutes, the fact that a decree for alimony was rendered in accordance with a previous agreement of the parties precludes its examination and revision. 1 Page Cont. s. 430. As the question is the meaning of the language in a particular statute with reference to the law and practice of the particular state, these decisions do not furnish material aid upon the legislative purpose here. The only case that has been found reaching a contrary conclusion, under circumstances sufficiently identical to be of value in the present case, is Henderson v. Henderson,
It may be conceded that a judgment or decree rendered by agreement cannot be set aside or modified without the consent of the parties except for fraud, when the agreement does not require judicial sanction to give it validity. Beliveau v. Amoskeag Mfg. Co.
The defendant claims that by the terms of the agreement the plaintiff is precluded from applying for additional alimony. Whether this is a correct interpretation of the agreement, or not, does not appear to be very material. If the allowance already made is adequate, no increase will be allowed, even if the plaintiff did not agree to be forever content with the sum named; while if justice requires an increase, the inadequacy of the sum agreed upon as a final adjustment will be a sufficient reason for a refusal to follow the agreement. As this portion of the agreement was not incorporated in the decree, it must be inferred that the presiding justice did not approve the provision, or considered the court had no power to make such an order. Campbell v. Campbell,
The defendant further contends that the sealed agreement was *261 made after the divorce was granted and the decree had become effective, and that it is to be treated as a discharge under seal of all right to apply for a different order as to alimony. Whether subsequent to the termination of the marriage relation formerly existing between the parties the plaintiff released to the defendant all her right under the statute, whether the agreement produced supports that contention, whether if such an agreement was understandingly made it is binding, are questions the discussion of which at the present time would be mere speculation; for no claim of discharge after judgment was presented in the superior court, and no facts relating to such a claim are found. The defendant alleged in his answer that the decree was based upon the agreement in writing under seal, made with the approval of and adopted by the presiding justice. The agreement must necessarily have preceded the decree based upon it. It is prospective in its terms, as the consideration is said to be the agreement that the alimony shall be six thousand dollars, is entitled as of the case and term, and is apparently designed as a document in the case.
It is found as a fact that the parties agreed as to the alimony before the hearing. There is no finding and nothing in the record from which it can be inferred as matter of law that the parties intended, when the paper was signed, to do anything except to express in writing the terms of the oral agreement made before the hearing. If there is error in the pleading, upon amendment the facts can be found, and the questions of law presented by such finding can then be considered. As the case stands, the parties pending the divorce made an agreement as to alimony. Upon that agreement and evidence satisfactory to the court, a decree as to alimony was made. Upon a new hearing, the question will be whether a different decree should now be made.
Case discharged.
BINGHAM, J., did not sit: the others concurred. *262