1. Divorce — Alimony — Subsequent Marriages In Eaton v. Eaton, 90 N.H. 4 (1939), wherein the supreme court held that marriage terminates the right to further alimony, unless extraordinary circumstances would make it inequitable for the alimony to cease, the court reasoned that a new marriage, bestowing upon the former wife the right to support from a new source, terminated her right to support from the former husband because she ought not to have two sources of support at the same time. 2.
[1, 2] This court has consistently held that stipulations agreed to by the parties are not binding on the court in the determination of alimony awards, and that upon a showing of necessity due to changed circumstances, the original decree may be modified. Eaton v. Eaton, 90 N.H. 4, 9, 3 A.2d 832, 835 (1939); LeBeau v. LeBeau, 80 N.H. 139, 140, 114 A. 28, 29 (1921); Wallace v. Wallace, 74 N.H. 256, 259, 67 A. 580, 582 (1907). We do not deviate from these holdings today.
By living again with the libelee and condoning his former conduct, the libelant did not deprive the court of jurisdiction to bring forward the separation proceedings and reconsider the former order for support. That order stood with full force until it should be modified or annulled by judicial action. Eaton v. Eaton, 90 N.H. 4. At any time the court could have modified the order for support or custody. LeBeau v. LeBeau, 80 N.H. 139, and cases cited. See also P. L., c. 287, ss. 15, 16, 24. If the libelant, by living with the libelee from 1930 to 1939, waived receipt of the support ordered by the court for that period (a question not presented), she at least did not contract never to claim support separately.
See, e.g., Viglione v. Viglione, 171 Conn. 213, 215 (1976) ("Periodic alimony may be modified by the court upon a showing of a substantial change in the circumstances of either party, and, except in the rarest of situations, the remarriage of a [recipient spouse] will furnish the basis for vacating such an award."); Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991) (presumption alimony will cease in absence of showing of extraordinary circumstances); Herzmark v. Herzmark, 199 Kan. 48, 54 (1967) (proof of remarriage makes a prima facie case requiring termination of future alimony unless recipient proves extraordinary circumstances justifying continuance); Mitchell v. Mitchell, 418 A.2d 1140, 1142-1143 (Me. 1980) (remarriage prima facie terminates the right to alimony); Eaton v. Eaton, 90 N.H. 4, 7 (1939) (remarriage should terminate alimony payments unless recipient spouse "can show extraordinary circumstances or a special situation making it clearly and definitely inequitable for the alimony to cease"); Kuert v. Kuert, 60 N.M. 432, 439 (1956) (alimony obligation should terminate unless recipient spouse proves extraordinary circumstances justifying continuance of former spouse's duty to support); Ramsdell v. Ramsdell, 454 N.W.2d 522, 524 (N.D. 1990) (remarriage is changed circumstance which calls for an end to spousal support, unless "extraordinary circumstances" require continuation); Dunaway v. Dunaway, 53 Ohio St.3d 227, 232 (1990) (obligation to pay alimony terminates as matter of law upon remarriage of recipient spouse unless: [1] alimony constitutes property settlement; [2] payment is related to child support; or [3] parties have executed separation agreement in contemplation of divorce that expressly provides for continuation of sustenance alimony after recipient spouse remarri
Neither party disputes that as a general matter in New Hampshire, the remarriage of the spouse receiving alimony does not automatically terminate the paying spouse's obligation to make alimony payments. Eaton v. Eaton, 90 N.H. 4, 7, 3 A.2d 832, 834 (1939); see also Kornos v. Kornos, 110 A.2d 656, 657 (Conn.Super.Ct. 1954); Boiteau v. Boiteau, 227 Minn. 26, 28-29, 33 N.W.2d 703, 705 (1948); Nelson v. Nelson, 282 Mo. 412, 417-19, 221 S.W. 1066, 1068 (1920). "The obvious result of an automatic termination would be that the court would lose all jurisdiction and the [spouse receiving alimony] would have no judicial recourse, even though there were extraordinary equities."
In this case, both parties have remarried and the plaintiff is now supporting a wife and child of that marriage. While the remarriage of either or both parties does not as a matter of law require a modification of a decree for the support of children (Payette v. Payette, 85 N.H. 297; Eaton v. Eaton, 90 N.H. 4), these facts, together with the duty of the plaintiff to support the legitimate child of his second marriage, are circumstances which may be considered by the Trial Justice. This is a different situation than existed in Fortuna, and while the plaintiff's second wife can be said to have entered into the marriage at her own risk, the innocent child of that marriage is not in such a position. There was evidence that plaintiff and his second family live with his mother on a dairy farm which came down from his grandfather.
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.
Defendant's association with another woman and the resulting obligations upon him are assumed at his own risk and do not entitle him to much judicial consideration with respect to his obligations to his wife and children. Eaton v. Eaton, 90 N.H. 4, 7; 2 Nelson, Divorce and Annulment (2d ed.) s. 17.12; Annots. 30 A.L.R. 79, 64 A.L.R. 1269, 112 A.L.R. 246. Such a condition in and of itself has been held not to constitute such a change in circumstances as to warrant a modification. Eaton v. Eaton, supra; Payette v. Payette, supra; Hensinger v. Hensinger, 334 Mich. 344, 346; Warren v. Warren, 218 Md. 212.
See, also, Lasprogato v. Lasprogato, 127 Conn. 510, 18 A.2d 353. In Eaton v. Eaton (1939), 90 N.H. 4, 3 A.2d 832, the following appears in the opinion: "Public policy, social morals, private decencies, and the legal conceptions of the institution of marriage all unite in insistent demand that the libelant's new marriage be held to constitute her abandonment of the right to further payments of alimony from her former husband."
Paille v. Paille, 91 N.H. 249. While the father could seek relief from the order of support for his child any time after it was made (Salta v. Salta, 80 N.H. 218), he could not cease payments rightfully without judicial relief from the order. Eaton v. Eaton, 90 N.H. 4, 8; Fowler v. Fowler, 97 N.H. 216. It is the general rule that a divorce decree does not relieve a father of his legal obligation to support his minor child even though custody is awarded to a third person and the decree is silent with respect to any order for support. Dolloff v. Dolloff, 67 N.H. 512; 81 A.L.R. Anno. 887; 2 Nelson, Divorce and Annulment (2d ed.) s. 15.61. This brings us to the further question of whether the decree of divorce automatically vacated the original order of support for the child so that it was no longer in force and effect. It is a general rule in this state that orders in domestic relation proceedings are not repealed by implication and continue in effect until modified by judicial action.