Gilbert v. Gilbert
| Decision Date | 20 November 1961 |
| Citation | 176 A.2d 371,54 Del. 253 |
| Parties | , 54 Del. 253 Eldon E. GILBERT, Plaintiff, v. Doris C. GILBERT, Defendant. |
| Court | Delaware Superior Court |
Thomas Herlihy, Jr., Wilmington, for plaintiff.
C. W. Berl, Jr., Wilmington, for defendant.
On February 7, 1961 plaintiff sued for divorce, charging that defendant wilfully deserted plaintiff about January 9, 1959, which wilful desertion has continued to the time of filing the suit. In her answer defendant has denied the wilful desertion, but admitted leaving the marital domicile.
Defendant has petitioned the Court to allow her suit money and alimony pendente lite. Plaintiff has moved to dismiss this petition so far as it relates to the claim for alimony pendente lite.
The parties were married on August 3, 1941 and lived together as husband and wife until January 9, 1959. On or about that date, the wife left the marital domicile.
Doris C. Gilbert, the defendant, sued the plaintiff in 1957 (No. 337 Civil Action, 1957) for a divorce in this Court, alleging that her husband, the plaintiff here, was guilty of habitual drunkeness. After hearing a number of witnesses for both parties, including a physchiatric expert, her divorce petition was dismissed by the Court which refused her a divorce.
The plaintiff contends by his motion to dismiss that the defendant's motion for alimony, suit money, and expenses fails to state a claim upon which relief can be granted and, inter alia, that any action for her support and maintenance should be brought in the Family Court. The parties have been before the Family Court of this County relative to the custody of their son; and the defendant, at one time, filed a complaint there for support of herself and her son. She did not, however, press for any action on the matter of her support, and there is no Family Court order for the support of the wife or the son. It is admitted that the plaintiff has, however, been making voluntary payments to the defendant for the support of the child.
The question for decision at this time is the jurisdiction of this Court to consider and make an award to the defendant-wife of alimony pendente lite in light of the Family Court Statute, Title 10 Del.C. Ch. 9, § 951.
That cited section provided that the Family Court was to have 'Exclusive Jurisdiction' over cases involving the failure or refusal of a husband to support his wife if she is 'in destitute or necessitous circumstances'. Did the enactment of that section of the Family Court Statute affect the jurisdiction of this Court to grant alimony pendente lite so as to divest this Court of the jurisdiction granted by Title 13 Del.C. § 1530, to allow alimony pendente lite to wives in need of such alimony?
Title 10 Del.C. § 951 provides, inter alia,----
'951. Exclusive jurisdiction
'The Family Court shall have exclusive original jurisdiction in all proceedings in New Castle County----
* * *
* * * '(6) Wherein any husband, without just cause, * * * wilfully neglects or refuses to provide for the support and maintenance of his wife in destitute or necessitous circumstances * * *.'
Section 4(f) of the original Statute contained the same language now to be found in 10 Del.C. § 951.
The Family Court Statute was originally enacted as Chapter 241 of Volume 45, Laws of Delaware. Section 1 of that Statute was titled 'Purpose, Basic Principle and Construction' and it recited, in part,----
The Family Court Statute has been amended at practically every session of the General Assembly since the time of its original enactment, but there has never been any change in the fundamental language as set forth in Section 1, 45 Del.Laws, Ch. 241, which is now Title 10 Del.C. § 902 and quoted above; although revised in the course of the 1953 Codification of our Laws, it contains substantially the same and all of the language which originally appeared in Section 1 of 45 Del.Laws, Ch. 241.
The motion under consideration is based on Title 13 Del.C. § 1530, which reads:
This section was a part--Section 12--of 24 Del.Laws, Ch. 221, adopted in 1907, which was a complete revision of our Divorce Statute at which time the General Assembly adopted the Uniform Divorce Law. The section was amended in 1909, 25 Del.Laws, Ch. 213, § 3, when the General Assembly added what is now the last sentence of this section. 24 Del.Laws, Ch. 221 was adopted pursuant to the provisions of the 1897 Constitution, Art. 2, § 18, which reads:
The history of our divorce statutes was traced in Brown v. Brown, 3 Terry 157, 29 A.2d 149 (Super.Cr., 1942). It was said, 3 Terry at 163, 29 A.2d at 151:
'* * * 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'.'
Judge Rodney pointed out in Brown v. Brown that Law Courts had no jurisdiction to grant divorces at Common Law. His statement 'there is no Common Law jurisdiction as to divorce' appears 3 Terry at page 163, 29 A.2d at page 152. He also noted that 'the Ecclesiastical Courts exercised sole judicial jurisdiction over matrimonial causes', and he observed 'The Ecclesiastical courts never existed here, and their adjudication did not form any portion of the Common Law.' (3 Terry at pp 163-164, 29 A.2d at page 152); compare DuPont v. DuPont, 32 Del.Ch. 413, at 429, 85 A.2d 724, at 733.
The significance of these statements is this,--that matters of divorce and alimony are entirely statutory and the right of a wife to alimony must be based on some statutory provision.
In light of Art. 2, § 18, 1897 Constitution, supra, and the statutory history of divorce and alimony (which will be set out hereafter) there are no problems of construction of the Family Court Statute, supra, and Title 13 Del.C. § 1530, such as our Courts faced in DuPont v. DuPont, 32 Del.Ch. 413, 85 A.2d 724 (Supreme Ct., 1951); Delaware Trust Co. v. McCune et al., 32 Del.Ch. 113, 80 A.2d 507 (Ct.Ch., 1951); Glanding v. Industrial Trust Co., 28 Del.Ch. 499, 45 A.2d 553 (Supreme Ct., 1945); and see DuPont v. Family Court, Del.Ch., 153 A.2d 189 (Supreme Ct., 1959).
The simple fact of the matter is that the public policy of this state with respect to matters of divorce, alimony, alimony pendente lite and support of a destitute wife by a husband, are now all matters of statute. What the General Assembly has provided by way of statutes is the only source of judicial power in this Court in these matters, including matters of alimony pendente lite and support of a destitute wife by husband. We have no constitutional problems in the construction of the statutes cited above.
The question of whether this Court has jurisdiction to grant alimony pendente lite was raised for the first time in 1951 before Judge Herrmann in DuPont v. DuPont, 46 Del. 280, 282, 83 A.2d 105 (Superior Ct., 1951). Judge Herrmann declined to decide the question in view of the then pending litigation in the Court of Chancery between the same parties over matters of the wife's support. See DuPont v. DuPont, 32 Del.Ch. 56, 79 A.2d 680 (1951).
By way of comment, it may be said that until 1945 there could be no doubt as to the jurisdiction of this Court to award alimony pendente lite in those instances where the circumstances justified an allowance. Plaintiff argues that the adoption of the Family Court Statute, supra, deprived this Court of the jurisdiction, granted by the General Assembly, 24 Del.Laws, Ch. 221, 1907, to award alimony pendente lite in the appropriate case. His argument is based on the well known principle of statutory construction, i. e., legislation conferring exclusive jurisdiction in certain cases upon one court will, by implication, oust the jurisdiction of another court which therefore had exclusive or concurrent jurisdiction in such cases. 15 C.J.--Courts--s 134, page 822; 21 C.J.S. Courts § 92, page 143, and this seems applicable here. The principle is of long standing, having been first decided in 1832 by Chief Justice Tindal in Crisp v. Banbury, 8 Bingham, 394, 131 English Reprint, 445. In that case a depositor sued a savings bank to recover money deposited with that bank. A statute had been adopted by the English Parliament providing that in any dispute between a savings bank and an individual depositor, 'the matter so in dispute shall be referred to the arbitration of two indifferent persons to be chosen and appointed * * * and whatever award shall be made by the said arbitrators * * * shall be binding and conclusive, and shall be final to all intents and purposes, without any appeal.' It was argued by the defendant in the cited case that the statute was imperative and ousted the jurisdiction of the courts of law. Plaintiff, on the other...
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