Opinion
No. 4803.
Argued January 5, 1960.
Decided January 27, 1960.
1. The period during which divorce proceedings on grounds of cruelty are pending in another state is not to be excluded as a matter of law in computing the three-year statutory period in subsequent proceedings by the same party in this state for abandonment and refusal to cohabit under RSA 458:7 IX where the desertion of which the libelant complains preceded the bringing of the libel in the other state and was in no way caused or affected by it.
LIBEL FOR DIVORCE, brought by the plaintiff Cynthia V. Quamo of Concord, New Hampshire, against the defendant Robert H. Quamo of Lynn, Massachusetts. The plaintiff prayed for a divorce on the grounds of abandonment, and willing absence for more than two years without making suitable provision for support and maintenance under RSA 458:7 IX and X respectively.
In the course of the hearing, it appeared that by a libel dated May 12, 1956, the plaintiff instituted divorce proceedings in the probate court of Essex County in the Commonwealth of Massachusetts on the ground of cruel and abusive treatment. Following a hearing, this libel was dismissed on January 2, 1958.
After finding all jurisdictional facts necessary to the maintenance of the libel in favor of the plaintiff and that causes for divorce existed, the Court further found:
"(12) At no time during the pendency of the divorce proceedings in Massachusetts did the libelee indicate a desire to resume marital relations nor did libelee at any time during the pendency of said proceedings indicate a willingness to make suitable provision for the support and maintenance of libelant.
"(13) Libelee's abandonment of and refusal to cohabit with libelant, without libelant's consent, and libelee's willing absence from libelant without making suitable provision for her support and maintenance were not caused by the pendency of divorce proceedings in Massachusetts.
"(14) If at any time during the pendency of the divorce proceedings in Massachusetts libelee had manifested a willingness and desire to cohabit with libelant, the libelant would have consented thereto.
"(15) If at any time during the pendency of the divorce proceedings in Massachusetts libelee had manifested a willingness and desire to cohabit with libelant, the libelant would have resumed marital relations with the libelee and would have discontinued the divorce proceedings in Massachusetts.
"(16) Libelee would have continued to abandon and would have continued to refuse to cohabit with the libelant for more than two years prior to the bringing of this libel irrespective of the pendency of divorce proceedings in Massachusetts."
In view of the evidence relating to the Massachusetts proceedings, the Court ruled, as a matter of law, that the bringing of the action for divorce on the grounds alleged in Massachusetts barred the plaintiff from successfully maintaining the present libel.
The plaintiff excepted to the failure of the Court to grant certain requests for findings and rulings and to the ruling that the bringing of the libel in Massachusetts was a bar to the successful maintenance of the present libel as a matter of law.
Further facts appear in the opinion. Transferred by Griffith, J.
Sulloway, Hollis, Godfrey Soden (Mr. Soden orally), for the plaintiff.
Varney Levy for the defendant, furnished no brief.
The question presented is whether the period, during which a prior divorce proceeding on the grounds of cruelty brought by the plaintiff in Massachusetts was pending, must be excluded as a matter of law from the statutory period in a subsequent proceeding for abandonment and refusal to cohabit under RSA 458:7 IX, when it is found as a fact that the desertion preceded the prior suit and was in no way caused or affected by it.
In Easter v. Easter, 75 N.H. 270, our court established the rule that the time during which a prior libel for divorce is pending is not to be excluded as a matter of law in computing the period of abandonment. The opinion stated that the pendency of the prior action "might under some circumstances compel the inference that the separation during such pendency was consented to, or was with sufficient cause." Id., 271. However, the court went on to say that this was only one evidentiary fact, not in itself controlling, and that the decisive question to be resolved by the Trial Court was whether the abandonment began and continued without fault of the plaintiff and against her will and consent. Id., 271, 272.
While aware of authorities which give conclusive effect to the bringing of a prior libel (anno. 41 A.L.R. 271) we believe the Easter rule governs this case and is supported in other jurisdictions. Cook v. Cook, 97 N.J. Eq. 264 . See also, Delgreco v. Delgreco, 322 Mass. 706; Espinola v. Espinola, 273 Mass. 450; Kelsall v. Kelsall, 139 Conn. 163.
In the case before us, the Trial Court found that the defendant's desertion of the plaintiff preceded her suit in Massachusetts, was in no way caused or affected by it, and continued for the required period without cause and without her consent. These and all other findings are unchallenged by the defendant and are amply supported by the record. It follows that the plaintiff is entitled to a divorce, and the order is
Remanded.
All concurred.