Davidson v. Davidson

• Decision Date: 07 November 1939
• Docket Number: No. 282.,282.
• Citation: 9 A.2d 114
• Parties: DAVIDSON v. DAVIDSON.
• Court: Vermont Supreme Court

9 A.2d 114

DAVIDSON

v. DAVIDSON.

No. 282.

Supreme Court of Vermont. Caledonia.

Nov. 7, 1939.

Libel for divorce by Clyde R. Davidson against Winona C. Davidson. Judgment was entered for the libelee, and both parties filed bills of exception and the cause was passed to the Supreme Court. On petition of the libelee for suit money, counsel fees and costs to maintain litigation during pendency of the libel.

Petition denied.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Conant & Parker, of St. Johnsbury, for libellant.

Arthur L. Graves, of St. Johnsbury, for libellee.

JEFFORDS, Justice.

This is a petition for suit money, counsel fees and costs to maintain litigation during the pendency of a libel for divorce. The petition prays only for an order for the same to maintain the litigation in this Court. There is contained therein a reference to orders of the court below as to counsel fees but the terms of such orders or the present status of the same are not stated. The parties have treated the petition under consideration as though it were the only one of its kind in the case and as entirely independent of, and having no connection with, any one of a similar nature heretofore presented and we so treat it. On hearing on the main case below judgment was entered for the libellee, petitioner here. Both parties filed bills of exceptions, the cause was passed to this Court and this petition was brought before hearing on the issues certified up. The petitioner claims that this Court has authority to grant said petition by virtue of P.L. 3142 which reads as follows: "After a libel for divorce is filed, the court in which the cause is pending, or a superior judge, may, on application of either party, on such notice to the adverse party as the court or judge directs, make such order in regard to temporary alimony and funds to support the wife and minor children, and maintain the litigation during the pendency of the libel, as is just".

This is the first time that we have been called upon to say whether the statute in question gives this Court the authority to give the relief prayed for. Cases from other jurisdictions are in hopeless conflict on this question. Most of them turn upon the construction of the wording of statutes or of constitutions and often of both and can be of such little help in construing our statute that we shall not attempt to discuss the divergent views expressed in them.

The question is did the Legislature intend by the wording of the statute, "the court in which the cause is pending", to give this Court, in divorce cases brought to it on appeal, jurisdiction to make the order prayed for.

The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. In re Estate of Wooley, 96 Vt. 60, 64, 117 A. 370. In a proper case the Court may disregard even the plain letter of a particular provision, and give it the effect which the Legislature evidently intended it should have. In re Estate of Curtis, 88 Vt. 445, 451, 92 A. 965; Montpelier Savings Bank v. City of Montpelier, 73 Vt. 364, 366, 50 A. 1117; Ryegate v. Wardsboro, 30 Vt. 746.

In ascertaining this intention certain other sections of chapter 140 of the Public Laws of which sec. 3142 is a part are helpful. Sec. 3133 provides as follows: "County courts shall hear and determine libels for divorce and for affirming or annulling the marriage contract and may issue process of attachment, execution and other proper process, necessary for the dispatch and final determination of such causes. The judges of the county court shall be triers of questions of fact as well as of law; their determination of questions of fact shall be final; and exceptions may be taken and questions of law heard in the supreme court as in other causes".

Section 3173, the final section in this chapter, reads as follows: "The county court may, in cases where the course of proceedings is not specially prescribed, hear and determine matters coming within the purview of this chapter, according to the usages of law applicable to such cases".

It cannot be questioned but that the order prayed for must be based on facts which must be determined by the trier. It seems clear to us that the two sections last referred to show that the Legislature intended that the county courts and not this Court should be the triers of all questions of fact arising in or springing from divorce...