Vinyard v. Vinyard

• Decision Date: 08 August 1946
• Citation: 48 A.2d 497,43 Del. 422
• Court: Delaware Superior Court
• Parties: KATHRYN E. VINYARD v. JOHN C. VINYARD

48 A.2d 497

43 Del. 422

KATHRYN E. VINYARD v. JOHN C. VINYARD

Superior Court of Delaware, Sussex

August 8, 1946

Caleb M. Wright for petitioner.

Robert W. Tunnell (of Tunnell and Tunnell) for defendant.

CAREY J., sitting.

OPINION

CAREY, J.:

At the hearing in this case, I reserved decision on the motion to dismiss the present petition and heard the evidence presented by the parties. This motion to dismiss was based upon the fact that the Court order directing the issuance of the rule did not expressly and in so many words stay the operation of the statute. It is argued that no appeal has ever been taken that no proceedings for review are pending and that no express order holding up the final decree was entered by the Court before the expiration of one year from the date of the decree nisi.

In his brief, counsel for the defendant cites 46 Am.Jur. 103 as authority for the statement that a review is a new trial of the issues before tried. That statement, taken from paragraph 3 on that page, must be read in connection with paragraph 1 on the same page in which it is expressly set forth that this article deals only with the "peculiar statutory proceeding of review as it exists or has existed in a few states of this country." There is no such statute in Delaware and the authority cited by the defendant therefore has no bearing on this case. In fact, the law dictionaries indicate that the terms "review" and "proceedings for review" have various meanings dependent upon their use in any given statute. 37 Words and Phrases, Perm.Ed., p. 588; Black's Law Dictionary 1555. I do not deem it necessary to determine whether the term includes the present type of proceeding because it seems to me, that, in any event, the motion to dismiss must be denied.

It is the plain intent of the statute that a divorce shall become final and absolute unless, within the interlocutory period some action is taken which will have the effect of holding up the matter. It is also true that the mere issuance of a rule such as this does not have the effect of opening the decree nisi, which will remain in force unless and until reason is shown why it should be vacated. Contino v. Contino, 31 Del. (1 W. W. Harr.) 488, 117 A. 514. However, I do not take this tomean that the issuance of the rule will not operate to hold up the final decree pending a hearing or that any specific words are necessary to stay such final decree when the manifest purpose of the rule is to annul the whole proceeding.

In this case, the rule was issued the day before the decree nisi would ordinarily have become final. If it were not intended that the matter be held up until a determination was made, the rule would have been utterly pointless. It would certainly be intolerable to permit the divorce to become final while proceedings are pending for the dismissal of the whole case. In my opinion, the mere issuance of such a rule is sufficient "order" to keep the matter in status quo pending final determination of the petition.

The motion to dismiss this petition is therefore denied.

At the hearing, Betty Louise Vinyard, the daughter of the parties, testified that she had no reason to expect or to hope that her parents would ever become reconciled. The averment in the petition concerning her wishes, if it be otherwise entitled to consideration, has not been substantiated and will be ignored.

With respect to the second reason, which pertains to the petitioner's health, it was shown that she has been working as a practical nurse almost steadily since the decree nisi was entered, as she had been doing prior to that date. She testified that she is troubled with an arthritic condition in her hands and that, while she is presently able to work, she has reason to fear that the time is not far distant when she will not be able to do so. It is, of course, conceded that every woman who obtains a divorce can foresee the ultimate possibility of bad health. In this instance, I do not see that anything new occurred after the entry of the decree nisi which the petitioner did not know or could not easily have foreseen when she applied for her divorce. Under my view of the evidence, I suspect that she has simply changed her mind for reasons not apparent. The matter thus narrows down to the case of whether or not she may terminate or discontinue her action without establishing some reason for doing so.

Most types of civil actions may as a matter of course be discontinued by the plaintiff at any time prior to verdict. 1 Woolley 453. Certain exceptions to that general rule, such as replevin, need not now be discussed. This right to discontinue divorce cases prior to hearing has never been questioned in Delaware or elsewhere, as far as I am aware. "It is the general rule in this country and in England that the complaining party may dismiss his libel before interlocutory or final decree, in the absence of any legal interest on the part of the libelee or of the commonwealth to the contrary." Nicolai v. Nicolai, 283 Mass. 241, 186 N.E. 240, 242. No cases holding otherwise have been brought to my attention. I take this statement to mean that the action can not be discontinued after decree nisi except by permission of Court but that the Court will grant its consent...