Sutphen v. Sutphen

• Decision Date: 20 August 1928
• Citation: 142 A. 817
• Parties: SUTPHEN v. SUTPHEN.
• Court: New Jersey Court of Chancery

142 A. 817

SUTPHEN

v. SUTPHEN.

Court of Chancery of New Jersey.

Aug. 20, 1928.

As Amended Oct. 23, 1928.

(Syllabus by the Court.)

Original application by Sara C. D. Sutphen as executrix and sole legatee for an order of revivor, contested by Edward Blair Sutphen. Application denied.

Pitney, Hardin & Skinner, of Newark, for the motion.

Harrison & Roche, of Newark, opposed.

BUCHANAN, Vice Chancellor. This is a suit by wife against husband for divorce and alimony. Application was made early in the suit for alimony and counsel fees pendente lite, but, by agreement of counsel, the consideration and determination thereof was postponed until final hearing. At the date fixed for final hearing, by agreement of the parties and leave of the court, the issues as to alimony and counsel fees were reserved for later determination if necessary, and the issue as to the divorce alone was heard at that time and determined in favor of the wife.

The undetermined issue as to alimony and counsel fees was referred to a special master, counsel suggesting that perhaps an agreement might be reached between the parties. There was added to the decree nisi the following provision in that behalf:

"And it is further ordered, adjudged, and decreed that this cause be referred to Charles M. Myers, Esquire, one of the special masters of this court, to ascertain and report what is a reasonable sum that the defendant should be required to pay to the petitioner for her support and maintenance from the commencement of this suit to the termination thereof, and thereafter (without any prejudice to any contention by the defendant, Edward Blair Sutphen, that no sum or sums by way of support or maintenance of the petitioner during the pendency of this suit or thereafter should be paid by him); and also what reasonable sum the defendant, Edward Blair Sutphen, should pay as and for expense moneys and counsel fees to the said petitioner, the master giving notice to the defendant, Edward. Blair Sutphen, of his sittings for the purpose of these inquiries, pursuant to the rules of this court. All further equities are reserved until the coining in of the report," etc.

Efforts for agreement by the parties were unsuccessful. Several hearings were had before the master, but the hearings were not concluded. Three months after the decree nisi final decree of divorce was entered, July 5, 1927. July 30, 1927, Mrs. Sutphen died unexpectedly. The master subsequently declined to proceed further, and the death of Mrs. Sutphen has now been suggested on the record and application made by her executrix and her sole legatee for an order of revivor. This is contested by defendant, who has a counter-motion to vacate the reference to the master.

The right to permanent alimony is separate and distinct from the right to divorce. The wife is not necessarily entitled to alimony merely because...