Lynde v. Lynde

• Decision Date: 19 October 1896
• Citation: 35 A. 641,54 N.J.E. 473
• Parties: LYNDE v. LYNDE.
• Court: New Jersey Court of Chancery

35 A. 641

54 N.J.E. 473

LYNDE

v. LYNDE.

Court of Chancery of New Jersey.

Oct. 19, 1896.

(Syllabus by the Court.)

Bill by Mary W. Lynde against Charles W. Lynde for a divorce. Petition of Mary W. Lynde for a vacation of the enrollment in this case, and amendment of the decree made on the 7th of August, 1896, by the addition of a clause thereto which shall reserve to the court the right to pay alimony to the petitioner, and to regulate the amount thereof from time to time. Decree amended.

James Westervelt, for petitioner.

J. Herbert Potts, for defendant.

McGILL, Ch. The petition for divorce in this case was filed in November, 1892, by James S. Aitken, Esq., as the solicitor for the petitioner. When it was filed, the defendant did not have any property, but his father was alive, and was a man of considerable wealth. In giving her solicitor instructions, the petitioner discussed this fact with him, and the probability of the defendant ultimately having bounty or inheritance from his father. She was anxious that she should obtain a decree which would admit of her having alimony thereafter, the amount of which could be fixed according to her husband's wealth, and accordingly her petition contained a prayer for alimony. When the petition was filed, the defendant was not resident in the state, and, upon proof of that fact, he was proceeded against as a nonresident or absent defendant. Notice was duly published and mailed to him, which expressly declared that the suit was for divorce from the bond of matrimony, "and for alimony." The defendant was not served with process, and did not appear in the suit. Knowledge of the pendency of the suit reached his brother, a lawyer in the city of New York, who, at the instance of his father, retained a solicitor of this court, to prevent, if possible, the entry of a decree for alimony, but not to contest the application for divorce. It was the object of the father and brother to have the decree to be made in the case expressly provide that there should be no alimony, and, if possible, to secure a written agreement to such a decree. The testimony of the solicitor so employed is that he examined the petition for divorce, and found that it did not pray for alimony, and that he had an understanding with Mr. Aitken that a decree for alimony would not be demanded. It is evident, from the fact of the presence of the prayer for alimony in the petition, that the recollection of the solicitor upon that point is at fault; and, as Mr. Aitken has no remembrance of making any agreement with him to the effect that alimony should not be demanded, his memory or understanding of the effect of his interview with Mr. Aitken, possibly, is at fault there also. But, however that may be, the solicitor thus employed did not enter an appearance for the defendant in the suit. Nor did he undertake to act for the defendant. Any such agreement, as is insisted upon, should have been in writing, to entitle it to recognition by the court. Mr. Altken's client's instructions forbade any agreement which would abandon alimony. In preparing the decree in the case, it is clear that Mr. Aitken did not deem himself to be bound in any way to omit reference to alimony. His testimony is that it was his purpose to so draw the decree as to reserve for the petitioner the right to thereafter have alimony. He says that it was impossible at that time to have any amount of alimony allowed and fixed, because the defendant then led a worthless, vagabondish existence. He attributes his failure to make the proposed insertion in the decree solely to the facts that in drawing that document he followed a form which did not contain the provision, and that, through inadvertence, he omitted it. Neither he nor his client became aware of his omission until about the time of making the application. As the proofs stand, I think that the agreement insisted upon is not proven, and that the omission in the decree is shown to have arisen through inadvertence.

As the decree was against the absent defendant, who was not served with process, did not appear in the case, and did not have property which was under the court's control, it could not have given alimony,—a judgment in personam in favor of the wife. Brown, Jur. § 11; 2 Bish. Mar., Div. & Sep. § 8-11; Browne, Div. 267. At best, it could only have reserved the question as to the allowance of alimony for future determination, upon application to be made upon due actual notice to the defendant. By the unwritten law, alimony is not a matter of independent claim or right. 2 Bish. Mar., Div. & Sep. § 839; 1 Bish. Mar., Div. & Sep. § 1368. It is incidental to a bill for divorce or other relief, between husband and wife, Anshutz v. Anshutz, 16 N. J. Eq. 162; Miller v. Miller, 1 N. J. Eq. 386; Yule v. Yule, 10 N. J. Eq. 138; Cory v. Cory, 11 N. J. Eq. 400; Rockwell v. Morgan, 13 N. J. Eq. 119, 121. The nineteenth section of our statute (Gen Laws, p. 1269)...