D. v. D

• Court: Superior Court of Delaware
• Writing for the Court: TERRY, Judge.
• Citation: 20 A.2d 139,41 Del. 263
• Parties: D. v. D
• Decision Date: 02 April 1941

20 A.2d 139

41 Del. 263

D.
v.
D

Superior Court of Delaware, New Castle County

April 2, 1941

Superior Court for New Castle County, No. 63, March Term, 1941.

Petition for annulment of marriage.

In the above case a petition was filed for annulment of marriage on the ground that the respondent was subject to an incurable physical impotency or incapacity for copulation, and that the plaintiff was ignorant of such fact at the time of marriage.

Prior to the trial the plaintiff presented a petition praying for the appointment of some competent surgeon or gynecologist to make a physical examination of the respondent, so as to testify at the trial.

It appeared during the argument concerning said petition that a physical examination of the respondent has been made by a skilled and competent gynecologist at the instance of the respondent, but that the respondent objects to the disclosure of the results of the examination to the Plaintiff prior to the trial.

The respondent resists the application for the appointment of a competent surgeon or gynecologist to make an examination upon the following grounds:

(a) That the jurisdiction vested in the Superior Court to grant divorces and annul marriages is statutory, and, since the statute does not confer upon the Court the power to order physical examinations of either of the parties, such power does not exist and, therefore, cannot be exercised by this Court.

(b) That a physical examination of the respondent should not be ordered by the Court, because the respondent is of the age of 53 years.

(c) That a further physical examination of the respondent should not be ordered, as she already has submitted to an examination by a reputable gynecologist who resides within the jurisdiction of this Court, and is available to be properly brought before this Court as a witness.

Henry R. Isaacs for plaintiff.

David J. Reinhardt, Jr., for respondent.

TERRY, J., sitting.

OPINION [20 A.2d 140]

[41 Del. 266] TERRY, Judge.

In determining the first objection raised by the respondent under (a), aforesaid, it becomes necessary to examine into the real source and extent of the jurisdiction of this Court under the subject at hand.

It is interesting to note that the legal power to grant divorces and annual marriages in England has been a recognized right imposed in the Courts of that country for centuries. However, this jurisdiction was not vested in the Common Law Courts, but instead in the Ecclesiastical Courts (a generic name for certain Courts having cognizance mainly of spiritual matters). This jurisdiction, however, terminated around 1870 during the reign of Victoria, at which time, by statute, a tribunal designated as "The Probate Admirality and Divorce Court" was created, and from that period all divorces and annulment of marriages have been heard and disposed of by that tribunal.

Under the administration of the Eccleciastical Courts of England, the principles [20 A.2d 141] and practice governing his subject ripened into a settled course and body of jurisprudence similar to that of the Courts of Chancery, and, more or less, constituted with those systems a part of the general law of England, and by a broad and large use of the term a part of the Common Law of England.

This country during its early growth, and even now in its mature stage, has adopted the theories and principles of the English common law, except in those phases of our life whereby necessity has decreed a new order or change brought about by our progress, wherein a deviation has taken place from the English common law principles theretofore adopted.

In following the English jurisdiction, the Law Courts [41 Del. 267] in this country were without power to grant divorces or annual marriages until such a time that the Legislatures of the various States, by legislative enactment, conferred that power upon the Courts, as we do not have, and never have had, Ecclesiastical Courts such as under the English procedure to assume jurisdiction.

The Legislature of this State during its early period of existence retained the jurisdiction to hear and determine actions for divorces. However, under the Constitution of 1897 the jurisdiction regarding divorces and annulment of marriages was vested in the Superior Court, and, since that time, the Superior Court, by proper statute under the constitutional provision aforesaid, has been the only tribunal vested with the power to hear and determine divorces and annul marriages. It necessarily became the duty of the Superior Court in passing on these matters to do so in accordance with the statute conferring that power, together with established principles of law which were incidental to the operation of said statute.

While the power was vested in the Superior Court to grant divorces and annual marriages, yet, no mode was prescribed by the statute relating to the proof necessary to sustain a petition in divorce or annulment of marriage, nor the manner in...