Brown v. Brown

Citation29 A.2d 149,42 Del. 157
CourtSuperior Court of Delaware
Decision Date12 October 1942

H Eugene Savery, of Wilmington, for plaintiff.

James R. Morford, of Wilmington, for defendant.

RODNEY and SPEAKMAN, JJ., sitting.


RODNEY, Judge.

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. C85) 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 pendente lite and of a permanent nature.

It will thus be seen that the word "alimony" was used in connection with the support given to a wife while legally living apart from her husband, and yet while the bonds of matrimony still bound both. It was given when the Common Law liability of marital support was enforced by judicial decree.From this the use of the term "alimony" naturally drifted into two channels, (a) where maintenance or sustenance was given to a legally blameless wife separated from her husband, though divorce proceedings were not necessarily involved, and (b) where maintenance and sustenance were given as a result of a change or cessation of matrimonial obligations.

It is under (a) that may be found that long line of cases upholding the inherent jurisdiction of a Court of Equity to decree alimony unconnected with divorce proceedings. This, we think, might more properly be called "sustenance", "maintenance" or "support." These cases may be found in 30 C.J 1078; 27 Am.Jur. 9; Ann.Cas.1913D, 1134; Mathvin v Mathvin, 15 Ga. 97, 60 Am.Dec. 664; 2 Va.Law Rev. 134.

It is unnecessary to consider what effect upon this jurisdiction may be caused by the more modern statutes of desertion and non-support. Our own Court, in Addicks v. Addicks, 1 Marv. 338, 15 Del. 338, 41 A. 78, recognized the affinity of the non-support statute and the divorce law when they felt bound, in an application for alimony pendente lite in a divorce case, by the maximum statutory liability for support as expressed in the non-support law.

It is the alimony under (b), as connected with divorce proceedings that we are here concerned.

Upon our separation from Great Britain we had no statute bearing upon divorce. The Legislatures of the Colonies assumed to themselves the power exercised by the English Parliament and legislative divorces became the rule. Before the Revolution divorces were granted by the Legislature in Pennsylvania (Minutes of Provincial Council, Vol. 9, p. 564-580), and in Delaware as early as 1789 (2 Del.Laws, 944). From 1789, and until prohibited by the Constitution of 1897, divorces were granted at almost every session of the Delaware Legislature, and amounted to approximately 500 in number. These legislative divorces continued with increasing frequency, notwithstanding our first divorce Act of February 3, 1832 (Laws of Delaware, Vol. 8, Chap. 144), gave to the Superior Court "sole cognizance of granting divorces." See Townsend v. Griffin, 4 Har. 440, 4 Del. 440. The jurisdiction of the legislatures over divorce has been said to be based upon its authority to determine the "status" of its citizens, and it has been held that the Legislature had no power to grant alimony, for such grant was in the nature of a judicial judgment. Crane v. Meginnis, 1 Gill & J., Md., 463, 19 Am.Dec. 237. The legislation found in 9 Del.Laws, 318, 319, however, purported to grant divorces and also to dispose of the property of parties to the marriage.

The great weight of authority sustains the view that there is no Common Law jurisdiction as to divorce. The Ecclesiastical Courts never existed here, and their adjudication did not form any portion of the Common Law. In the early case of Jeans v. Jeans, in 1835, 2 Har. 38, 2 Del. 38, it was conceded that divorce jurisdiction emanated solely from the Act of Assembly, and not from the Common Law. It was contended, however, that the leading principles developed by the Ecclesiastical Courts should be considered as "great lights and sound guides" in the administration of the law of divorce. Of such opinion was the Court, and this is the prevailing rule in this country. See also D v. D. 2 Terry 263, 41 Del. 263, 20 A.2d 139.

The first Delaware Divorce Act of February 3, 1832 (Vol. 8, Ch. 144), insofar as concerned the question of alimony, was:

"that the said Court shall have power to grant alimony to the wife for her sustenance during the pendency of a petition, filed for any of the causes aforesaid; * * *"

The above Act authorized the Court to grant alimony during the pendency of "a" petition for divorce, and the grant of alimony was not limited to the case where the petition for divorce is filed by the wife.

In 1852 the Act was changed. By Sec. 5 of Chap. 75, Revised Code of 1852 (page 239) the statute was made to read

"The Court may grant alimony to the wife for her sustenance pending her petition for divorce * * *"

By this statute the jurisdiction of the Court would seem to have been limited to those cases where the petition for divorce had been filed by the wife.

Such was the construction in other jurisdictions where a similar statute existed. An early statute of Missouri gave authority to the Court to "order any reasonable sum to be paid for the support of the wife during the pendency of her application for a divorce." Rev.St.1855, c. 55, § 8.

The Court in Morton v. Morton, 33 Mo. 614, held that there was no authority to grant alimony pendente lite when the divorce action had been instituted by the husband. A similar result was reached in Reeves v. Reeves, 82 N.C. 348. In both cases legislation corrected the palpable injustice of the law.

Some jurisdictions have held that in making an allowance of alimony pendente lite, it is in the discretion of the Court to include a reasonable sum for counsel fees. (See cases collected in 55 Cent.L.J. 386).

It is unnecessary to consider these cases, for in 1859, by Chapter 638, Vol. 11, Laws of Delaware, there was expressly authorized what some jurisdictions call "suit money" and other "expenses." By the cited amendment the statute was made to read:

"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. * * *"

An important observation should be made as to this Amendment. If, as we suppose, under the original statute alimony could only be granted where the wife was the petitioner, then it would seem that this must be the construction of the amendment, and expenses allowable under it could only be granted when alimony could be granted, viz., when the wife was the petitioner. The importance of this observation will be apparent when we consider the next amendment.

In 1873, by Chapter 548, Vol. 14, the Legislature added to the section the words "Whether the application be on the part of either the wife or husband", so as to make the section read:

"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."

In this form the statute has remained to the present time.

The question is whether the words "whether the application be on the part of either the wife or husband" refer solely to the expenses authorized by the words immediately preceding, or whether they relate back and apply also to the alimony pendente lite there provided for. It is here material to refer again to the observation that when the last amendment was made the situation was that either sustenance or expenses could be allowed only when the divorce petition had been filed by the wife.

There is an aid to statutory construction by which relative or qualifying words, phrases or clauses are ordinarily to be applied solely to the words or phrases immediately preceding. This is sometimes called the doctrine of the "last antecedent." It has its roots far back in the law and is based upon the legal maxim "ad proximum antecedens fiat relatis, nisi impediatur sententia." There are many authorities in which the principle has been applied, and it has a sure place as an aid to statutory construction. See cases collected in 59 C.J. 985; 25 R.C.L. 965. The rule, however, is not an arbitrary one, or applicable to all cases.

In Lewis' Sutherland Statutory Construction, Vol. 2, Sec. 420, it is said:

"This principle [last antecedent] is of no great force. It only operated when there is nothing in the statute indicating that the relative...

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