Du Pont v. Du Pont

• Decision Date: 03 July 1953
• Citation: 33 Del.Ch. 571,98 A.2d 493
• Court: Court of Chancery of Delaware
• Parties: DU PONT v. DU PONT.

Page 493

98 A.2d 493

33 Del.Ch. 571

DU PONT v. DU PONT.

Court of Chancery of Delaware, New Castle County.

July 3, 1953.

James R. Morford and George L. Sands, of Morford, Bennethum & Marvel, Wilmington, for plaintiff.

Arthur G. Logan, Wilmington, for defendant.

SEITZ, Chancellor.

Plaintiff filed an action for separate maintenance against the defendant, her husband, on the theory that she was a deserted wife in destitute circumstances. Defendant filed, inter alia, a counterclaim seeking the recovery of certain personal property in plaintiff's possession on the ground that it was his exclusive property. Plaintiff answered the counterclaim by alleging that such property was moved from the family residence to an apartment in order that she might furnish her new apartment properly. Plaintiff's answer to the counterclaim does not appear to directly claim title to any of the property. However, the briefs demonstrate that both parties have considered title as well as use to be in issue. I accept their approach with the suggestion that the pleadings be amended to raise the title point directly.

After elaborate preliminary legal skirmishes, plaintiff was awarded a monthly sum of money. ¹ However, this court reserved decision on the counterclaim in question pending more thorough consideration of the very difficult legal points involved. This is the decision thereon.

Plaintiff suggests that the use of the personal property, apart from the question of title, was decided in her favor by implication as a part of the award of separate maintenance. I cannot agree with this contention because neither counsel even suggested that the question of the use of this personal property was involved in the allowance of separate maintenance. I say this without intending to suggest how it would have been treated.

I now consider the pertinent facts. Defendant deserted the plaintiff without legal cause. Thereafter, he caused the plaintiff to be evicted from the family residence by failure to pay the rent. The plaintiff moved to an apartment and took with her much of the household goods and furnishings. By agreement of counsel the items taken by the plaintiff were segregated and itemized. One list contains items which plaintiff sold after she moved. Another list was made up of items owned by plaintiff prior to the marriage. Still another list consists of the wedding gifts received by the parties. Defendant is willing to have plaintiff retain all of these items.

This decision is therefore concerned only with personal property received from three sources:

1. Property purchased by the defendant before marriage.

2. Property purchased and paid for by defendant during marriage.

3. Property received by defendant by will after marriage.

This court is met at the outset with plaintiff's contention that in an action for separate maintenance it lacks jurisdiction over a counterclaim seeking to have the court adjudicate, as between husband and wife, the question of title to personal property. Plaintiff says that this type of jurisdiction exists only when granted by statute because it is nothing but an equitable replevin. On the other hand, defendant contends that this counterclaim is perfectly proper because it could have formed the basis for a separate action in Chancery; the jurisdictional ground being that there is no remedy at law in that a husband cannot sue his wife at law in this State. See Plotkin v. Plotkin, 2 W.W.Harr. 455, 125 A. 455.

There never has been any question about the legal power of a married man to hold property as his separate property. But under the common law the wife was under a substantial legal disability with respect to the holding of property as against her husband. The quaint old legal unity concept of marriage gave the husband an absolute interest in his wife's personal property including choses reduced to possession. See Johnson v. Fleetwood, 1 Har. 442; Whitemen v. Whitemen, 7 Boyce 273, 30 Del. 273, 105 A. 787. The result may be inelegantly and imprecisely expressed thus: 'What was his was his but what was hers was his also'. Since the passage of a so-called Married Women's statute, 13 Del.C. § 311, there is no longer any question about the power of a married woman to hold title to her own property. There still exists however the legal disability which prevents either spouse from suing the other at law. Plotkin v. Plotkin, supra; Peters v. Peters, 20 Del.Ch. 28, 169 A. 298.

The power of the Delaware Chancery court to entertain actions by one spouse against the other in a proper case is well recognized. Compare Spruance v. Equitable Trust Co., 12 Del.Ch. 12, 103 A. 577; Peters v. Peters, supra; DuPont v. DuPont, Del.Ch., 79 A.2d 680, affirmed, 85 A.2d 724. We have here a case where the law gives a married person individual property rights but has failed to provide a legal remedy in case such rights are invaded by the other spouse. In keeping with its long-established practice, a court of equity can very properly step in to provide a remedy by determining title and entering an order appropriate to its decision. See particularly Peters v. Peters, supra. Moreover, broadly viewed this may be considered an action for an accounting. Compare Hoyle v. Hoyle, 31 Del.Ch. 64, 66 A.2d 130. A further jurisdictional justification is found in the theory that once equity takes jurisdiction it is entitled to grant complete relief.

Plaintiff cites many cases for the proposition that in the absence of statute the court of equity in a separate maintenance action is without power to adjudicate property rights, e. g., Jensen v. Jensen, 20 Wash.2d 380, 147 P.2d 512, and Brown v. Brown, 23 Wyo. 1, 146 P. 231. Without passing upon the merits of the principles announced in those cases, it seems to me that they are not pertinent here. I say this because in those cases the courts were deciding that in making a separate maintenance award, and as a part thereof, the court, absent statute, was without power to transfer title by a division or transfer of property held by one spouse.

The present counterclaim does not involve any question of the transfer of title in implementation of a separate maintenance decree but only an ascertainment of the title holder so as to grant appropriate relief. Chancery Rule 13 governing counterclaims certainly will accommodate this case.

I decide that in an action for separate maintenance this court has jurisdiction to determine by way of counterclaim the title to personal property claimed by each spouse and to grant appropriate relief.

As stated, the court must determine title to property coming from three sources. In the first category are certain linens initialed 'A.V.duP.' which defendant brought into the marriage relationship.

The second category consists of property purchased by the defendant during marriage and which is still in the plaintiff's possession. Defendant's brief suggested what appears to be a compromise division but I assume that plaintiff has rejected this proposed division and, therefore, the title to all of the property purchased during marriage and still in plaintiff's possession is in issue. The list is too long to enumerate. It consists of furniture of substantial value, as well as household appliances, rugs and...