McCRADY v. MAHON, 117 N.H. 762 (1977)

378 A.2d 1143

MURIEL McCRADY v. JOHN E. MAHON

No. 7712Supreme Court of New Hampshire Rockingham
Decided October 17, 1977

1. Appeal and Error — Questions Considered on Appeal — Errors of Law In absence of findings or rulings being requested or made, and in absence of trial transcript in proceedings for contempt and to recover arrearages allegedly due for defendant’s failure to make child support payments, sufficiency of evidence to support court’s decree could not be raised, and only question was whether errors of law appeared in record.

2. Divorce — Custody and Support of Children — Vested Rights Child support payments past due were vested property rights and as such could not be modified or vacated.
3. Divorce — Custody and Support of Children — Contempt Proceedings Trial court may withhold use of coercive power of civil contempt proceedings if contemnor has no present ability to make payments on arrearages allegedly due for failure to make child support payments.
4. Divorce — Jurisdiction of Court — Generally Trial court generally retains jurisdiction over marital matters and in its discretion may modify or vacate orders pertaining to such matters as they apply prospectively.

Sanders McDermott and Patrick McKee, of Hampton (Ms. McKee by brief) for the plaintiff.

John E. Mahon, pro se, of Saugus, Massachusetts, by brief, for the defendant.

PER CURIAM.

The plaintiff brought a petition for contempt against the defendant and to recover arrearages allegedly due for his failure to make child support payments in the sum of $3,803.00. After a hearing, the court found the defendant was not in contempt and cancelled the arrearages. The plaintiff appealed this decision. Mullavey, J., transferred the case.

[1] No findings or rulings were requested or made, nor was there any transcript. Thus the sufficiency of the evidence to support the court’s decree cannot be raised and the only question before us

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is whether errors of law appear in the record. Blethen v. Lawrence, 116 N.H. 840, 376 A.2d 884 (1976); Thayer v. Tax Commission, 113 N.H. 113, 302 A.2d 824 (1973).

[2] The plaintiff argues that child support payments past due are vested property rights and as such cannot be modified or vacated. We agree and hold that the trial court was in error insofar as its decree cancelled the arrearage.

“Although a court may set aside accrued installments of alimony for fraud, past-due installments of alimony, while not amounting to judgment for the amount due until reduced to judgment after accrual, are nevertheless generally regarded as vested to the extent that it is beyond the power of the court making the award to modify or change them after they are due. A similar rule is recognized with respect to past-due installments of child support.” 2A Nelson, Divorce and Annulment 17.05 (1961 rev. ed.) (footnotes omitted).

[3] Of course, the trial court may withhold use of the coercive power of civil contempt proceedings if the contemnor has no present ability to make payments on the arrearage. “Reduction of accrued installments is generally not permitted, although if the hardship to the husband is particularly severe, the court will find some device to protect him.” H. Clark, Domestic Relations 15.2, at 499 (1968) (footnotes omitted). [4] Nothing herein is to be interpreted as abolishing our long established rule that the trial court generally retains jurisdiction over marital matters and in its discretion may modify or vacate such orders as they apply prospectively. Peterson v. Buxton, 108 N.H. 77, 227 A.2d 779
(1967); Perrault v. Cook, 114 N.H. 440, 322 A.2d 610 (1974).

Exceptions sustained in part.

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