Brown v. Brown

• Citation: 29 A.2d 149
• Parties: BROWN v. BROWN.
• Decision Date: 12 October 1942
• Court: Delaware Superior Court

29 A.2d 149

BROWN
v.
BROWN.

Superior Court of Delaware, New Castle.

Oct. 12, 1942.

29 A.2d 149

[Copyrighted material omitted.]

29 A.2d 150

Suit by Clarence B. Brown against Kathryn Briggs Brown for divorce. On defendant's petition for alimony pendente lite and statutory allowance or division of property.

Order granting defendant $500 from plaintiff's personal estate, or, if such sum be not paid, reserving right to make allowance of all or a portion of plaintiff's stock in certain corporation, when decree nisi for plaintiff becomes final.

RODNEY and SPEAKMAN, JJ, sitting.

H. Eugene Savery, of Wilmington, for plaintiff.

James R. Morford, of Wilmington, for defendant.

Superior Court, New Castle County, No. 155 Sept. T, 1941.

Defendant's Petition for Alimony Pendente Lite and Property Allowance.

Clarence B. Brown and Kathryn Briggs Brown were married January 23, 1936. On August 15, 1941, Clarence B. Brown brought suit for absolute divorce on the ground of wilful desertion. During the pendency of the action, on September 15, 1941, the defendant filed a petition stating that she was wholly innocent of the acts charged, and setting forth that she was without means for her own support or to pay expenses in conducting her defense to said action. Trial was had January 8, 1942, but decision was reserved. An order was made April 29, 1942, requiring the petitioner to pay the sum of $100 to defray the counsel fees of the defendant, and this sum was paid. On August 3, 1942, a petition was filed by the defendant praying a property allowance pursuant to the statute, and a decree nisi has now been granted to the husband.

On September 17, 1942, argument was had as to the petition for alimony pendente lite and for statutory allowance or division of property.

The pertinent provisions of the Revised Code of 1935 are :

"3508. Sec. 12. Alimony and Expenses of Suit to Wife; Compulsory Process:—The Court may grant alimony to the wife for her sustenance pending her petition for divorce, and may order and direct the husband to pay such sum as may be deemed necessary to defray the expenses in conducting her case, whether the application be on the part of either the wife or husband, and shall protect her from personal restraint. The Court, in the execution of the powers conferred by this Chapter, may employ such compulsory process as it may deem proper."

"3511. Sec. 15. Property Allowance to Wife; When Decree for Aggression of Husband; When for Aggression of Wife:—When a divorce shall be decreed for the aggression of the husband, the complainant shall be restored to all her real estate, and be allowed, out of her husband's real and personal estate, such share as the Court shall think reasonable; but if the divorce be for the wife's aggression, the Court may restore the whole or a part of her real estate, and also such share of her husband's personal property as may seem reasonable."

"3512. Sec. 16. How Allowance Made and Effected:—any such allowance, or division of the property, may be by a gross sum, or an annual allowance, or an assignment by metes and bounds; and the Court

29 A.2d 151

may appoint commissioners to execute any order in the premises, and may issue writs of possession, as in case of land sold on execution process."

An important question is whether alimony pendente lite may be granted to a wife where the divorce petition has been filed by the husband and not by the wife, in view of the language of Sec. 3508.

RODNEY, Judge, delivering the opinion of the Court:

The term "alimony" is a word with a dual meaning. In its broadest sense it means the support or maintenance which a Court decrees in favor of a spouse (usually the wife) as enforcing the right to marital support which such party may have had. In a more strict and limited sense it indicates such support or maintenance as is considered in connection with divorce proceedings. The confusion in the meaning of the term is not hard to trace. At Common Law no English law Court (as distinguished from Ecclesiastical Court) had any jurisdiction of divorce. Until the Matrimonial Causes Act of 1857 (20 & 21 Vict. 685) the Ecclesiastical Courts exercised sole judicial jurisdiction over matrimonial causes. Those Ecclesiastical Courts, while decreeing annulment of marriage in certain cases, did not grant absolute divorces from the bonds of matrimony, but solely decrees "a mensa et thora", constituting merely a legal separation. The marriage ties themselves, when legally made, were considered as indissoluble by the Ecclesiastical Courts. Only the rich and powerful could obtain absolute divorces by Act of Parliament. It is said (10 Halsbury Laws of England p. 631) that between 1700 and 1857 some 230 such Acts were passed. In connection with the legal separation or limited divorces the Ecclesiastical Courts granted alimony, both...