McKensey v. McKensey

• Decision Date: 14 October 1903
• Citation: 65 N.J.E. 633,55 A. 1073
• Parties: McKENSEY v. McKENSEY.
• Court: New Jersey Court of Chancery

55 A. 1073

65 N.J.E. 633

McKENSEY

v. McKENSEY.

Court of Chancery of New Jersey.

Oct. 14, 1903.

Application by Nellie McKensey against Arthur McKensey to amend decree for divorce so as to insert allowance for alimony. Additional notice of hearing required to be served on defendant.

John I. Weller, for petitioner.

Arthur McKensey, pro se.

STEVENSON, V. C. The petition presented now to the court shows that the petitioned obtained a decree of divorce from the defendant on the ground of desertion in September, 1902. The petition for divorce "prayed for counsel fees and alimony pendente lite and such further and other relief as might seem equitable and just." No application for alimony or counsel fees seems to have been made. The decree was silent on the subject of alimony, and the petitioner alleges that she first learned of that fact in August, 1903, when she went to the office of her solicitors for the purpose of having them procure alimony for her from her former husband. The husband is alleged to have recently come Into the possession of considerable property from his father's estate. The prayer of the petition is that the decree of divorce may be amended "by inserting therein a direction to the said defendant to pay" the petitioner alimony and counsel fees. The petition also prays for such further and other relief in the premises as may be agreeable to equity and good conscience. If the divorce act now stood as it was revised in 1874 (2 Gen. St. p. 1269, § 19), there would be serious difficulties in dealing with the petitioner's case, all of which will appear by an examination of the opinion of Chancellor McGill in Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641, which was adopted by the Court of Errors and Appeals (55 N. J. Eq. 591, 39 Atl. 1114). Without looking, however, into the power of the court to amend a petition for a divorce and decree thereon in a case like this under the facts disclosed on this present application, in my opinion there is no reason why such a power should be exercised in order to give the petitioner all the relief to which she is entitled. By a slight change in the phraseology of section 19 of the divorce act as revised In 1902 (Sess. Laws 1902, p. 507), an important change of practice was made in cases like Lynde v. Lynde and the one now before this court The former law, as expressed in the original divorce act of 1794, and re-enacted in the subsequent revisions of 1818, 1846, and 1874, provided (2 Gen. St. p. 1269, § 19) "that when a divorce shall be decreed" it should be lawful for the Court of Chancery to order alimony, etc. The present statute (Sess. Laws 1902, p. 507, § 19) provides that "pending a suit for divorce or nullity, or after decree for divorce," it shall be lawful for the Court of Chancery to make orders for alimony,...