391 A.2d 895
No. 78-104Supreme Court of New Hampshire Rockingham
Decided September 18, 1978
1. Divorce — Decree — Violation Where former husband moved that possession of property awarded to former wife in divorce decree be terminated due to violation by former wife of terms of decree that provided that right of occupancy and possession would terminate immediately if she permitted a man not her husband to reside there with her, violation of terms of decree was moot because plaintiff no longer occupied such property.
2. Divorce — Decree — Violation Where paragraph in divorce decree awarded occupancy and possession of real estate to former wife that would terminate if she permitted a man not her husband to reside with her at that location, defendant’s motion for custody of child because of violation of terms of paragraph was denied since matter of custody was not mentioned in paragraph and violation of its terms would not of itself have entitled former husband to custody.
Fryer, Boutin Warhall, of Londonderry, by brief, for the plaintiff.
Edward E. Williams, of Exeter, by brief and orally, for the defendant.
MEMORANDUM OPINION
The parties were divorced in 1977 after a hearing before a Master (Leonard C. Hard wick, Esq.) by decree entered by Perkins, J.
Custody of a minor child was awarded to plaintiff who was also given the right to sole possession and occupancy of a real estate at 13 Asbury Street, Salem, until the child attained the age of eighteen or the plaintiff remarried, whichever event occurred first. The decree in paragraph 6 also provides that if the plaintiff “permits a man not her husband to reside with her at Asbury Street, her right of occupancy and possession shall immediately terminate.”
[1, 2] Defendant thereafter moved that plaintiff’s custody of the child and possession of the property be terminated and that he be given custody and possession because of a violation by plaintiff of the above paragraph 6. Another Master, Nicholas G. Copadis, recommended that the request for custody and occupancy be denied andPage 579
that the property be sold. The recommendation was approved by Cann, J.; defendant’s exceptions were transferred by Mullavey, J.
The violation of paragraph 6 of the decree is now moot because plaintiff is not now in occupancy. The matter of custody was not mentioned in paragraph 6 and, contrary to the contention of the defendant, a violation of paragraph 6 would not of itself entitle him to custody.
Exceptions overruled.