Opinion
No. 4957.
Argued March 6, 1962.
Decided April 3, 1962.
1. Unless a decree for the support of a minor child entered in divorce proceedings expressly provides for the cessation of payments its force continues until it is modified and the libelee may not cease payments thereunder without judicial relief.
2. An order for support as well as a modification thereof will be set aside only if upon the evidence it clearly appears there has been an abuse of judicial discretion.
3. In a petition for modification of an order for support of a minor child entered in divorce proceedings it was not an abuse of discretion to condition vacation of the order upon the payment of arrears where the minor was not of age and there was no finding that he was self-supporting.
Motion by a libelee to bring forward and vacate a decree for support of the minor child of the parties entered on September 13, 1957 in modification of a previous order entered when a divorce was granted to the libelant in 1955.
The case was referred to a master (Leonard C. Hardwick, Esq.) whose report was approved by the Superior Court (Leahy, C. J.) on April 19, 1961, and as subsequently amended was again approved on February 2, 1962. The master found that the libelee had ceased payments under the order on July 5, 1960, when the minor child became nineteen years of age, and that there was then an arrearage of $95. The master also found that the child had graduated from high school on June 16, 1960. He recommended that the order of support be vacated upon payment of arrears to the date of hearing in April 1961 aggregating $505.
The libelee's motion for a hearing before the Court upon the condition that arrears be paid before the order should be vacated was denied on May 3, 1961. All questions of law presented by the libelee's exceptions to the recommendations of the master were reserved and transferred by the Presiding Justice.
Fisher, Parsons Moran (Mr. Harold D. Moran orally), for the libelant.
Cooper, Hall Cooper (Mr. Fred W. Hall orally), for the libelee.
"Unless the decree . . . expressly provides for the cessation of payments . . . its force continues until it is modified . . . . The libelee may not disobey the order of the decree. His right is to obtain judicial relief from further payments, and not to cease payments without the relief." Eaton v. Eaton, 90 N.H. 4, 8. See Fowler v. Fowler, 97 N.H. 216, 218; Benjamin v. Benjamin, 99 N.H. 117.
In the case before us the order of September 13, 1957 continued in force on April 19, 1961 when the master's report was approved by the Court and the arrears aggregated $505. Nothing in our law would have prevented termination of the libelee's obligation for support at some time between the filing of his motion and the date of approval of the master's report by the Court if justice so required. However "an award as well as a modification will be set aside only if upon the evidence it clearly appears there has been an abuse of judicial discretion." Fortuna v. Fortuna, 103 N.H. 547, 548.
The record in this case falls short of meeting this requirement. The minor child of the parties will not become of age until July 1962. While the finding of the master shows that he graduated from high school in 1960, there was no finding that he had become self-supporting. The evidence in the case is not before us. It may have appeared that "the libelee [had] not been diligent in instituting and prosecuting his petition" (Eaton v. Eaton, supra, 9) or that the circumstances of the parties did not warrant vacation of the order until all sums due at the time of hearing should be paid. See Fortuna v. Fortuna, supra, 548. The record discloses no reason for this court to interfere with the Trial Court's exercise of its discretion.
Exceptions overruled.
All concurred.