Schonwald v. Schonwald, 62 N.C. 215 (N.C., 1867)
JAMES T. SCHONWALD.
Supreme Court of North Carolina.
June Term, 1867.
*1 Whether alimony pendente lite shall be allowed at all, is a matter of law; How much shall be allowed is a matter of discretion.
An appeal lies from an order refusing such alimony, under the Rev. Code, c. 39, s. 15.
The Superior Courts may allow appeals in such cases without security, under the Rev. Code, c. 4, s. 23.
In North Carolina it is not necessary, as in England, to decide the question of marriage or no marriage, before passing upon the right to alimony pendente lite.
In deciding upon such right, the court is confined to a consideration of the petition in the cause.
A delay of seven years in filing a petition is sufficiently accounted for by the allegations that at the happening of the matters relied upon for a divorce, the petitioner was a non-resident of the State, and is now a pauper.
( Taylor v. Taylor, 1 Jon. 528; Wilson v. Wilson, 2 Dev. & Bat. 377; Whittington v. Whittington, 2 Dev. & Bat. 68; Schonwald v. Schonwald, 3 Jon. 342, cited and approved.)
MOTION in a divorce cause, for alimony pendente lite, heard before Fowle, J., at Spring Term, 1867, of the Court of Equity for NEW HANOVER.
The petition had been filed in the Fall of 1857, and alleged that in 1843 the petitioner, then a widow residing in New York and carrying on a profitable business there as milliner, had been married to the defendant; in 1844 they removed to Baltimore, and lived there as man and wife; in 1845 the defendant went to Wilmington and established himself as a physician, and, having corresponded in the interval with the petitioner, who had remained, by agreement, carrying on her trade in Baltimore, and awaiting the results of his enterprise, after he had succeeded, sent for her and their child to join him; upon her arrival she was treated as his wife for a year or two; all this while the petitioner had conducted herself as a faithful, affectionate and obedient wife; after they had lived together for some time in North
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Carolina a change in his demeanor occurred, he became cold and then cruel, proceeding to personal violence, and making a dangerous assault upon the petitioner with a knife, so as to compel her to obtain security of the peace against him, and finally, as she was entirely among strangers and in despair, to consent to a separation upon the terms that she might keep the child and receive of the defendant ten dollars per month for their support; upon this she went to New York, hoping that time might soften the defendant and restore harmony between them; for a few months he remitted the allowance regularly, but after that became irregular and finally ceased to do so, and for five or six years has given her nothing; about seven years ago he married a Miss Catherine Joiner, and is now living with her as his wife, and denies having been married to the petitioner; the defendant is worth some $12,000 or $15,000, but has made an assignment of his property, as petitioner believes, in order to defeat her claim to a support; petitioner has resided in this State for more than three years preceding the time of filing the petition; &c., &c., praying for a divorce a vinculo and for alimony, (both pendente lite and other,) and for other relief, &c.
*2 To this petition an answer had been put in by the defendant.
His Honor disallowed the motion for alimony pendente lite, and granted an appeal to the petitioner without requiring security, “although inclined to believe that no appeal is given by the Rev. Code.”
French, for the appellant .
1. If the petition is fit to be entertained, it is the duty of the court to grant alimony pend. lite. Taylor v. Taylor, 1 Jon. 528; Gaylord v. Gaylord, 4 Jon. Eq. 74; Everton v. Everton, 5 Jon. 202; Shearin v. Shearin, 5 Jon. Eq. 233.
2. Upon the question of allowing the appeal without security, he cited 1 Dan. Ch. Pr. 46, compared with Clark v. Dupree, 2 Dev. 411.
1. The appeal could not be granted without security; the statute, Rev. Code, c. 31, s. 43, applies only to the prosecution of the suit, and Rev. Code, c. 39, s. 16, only to appeals from final judgments.
2. Taylor v. Taylor, 1 Jon. 528 is founded upon the law, Rev. Stat. c. 39, s. 5, which then required a fiat from a Judge before process could issue, but now the Rev. Code, c. 39, ss. 5 and 6, allows process to issue without such fiat. At all events there has been such an amendment of the law as disposes of this case, for Rev. Code, c. 39, s. 15, requires that “the matter set forth in the petition shall be sufficient to entitle the petitioner to a decree for alimony, and upon an appeal the Supreme Court shall re-examine only the sufficiency of the petition.” Everton v. Everton, 5 Jon., 202. The only specific prayer here is for a divorce a vinculo, and for alimony. There is none for a divorce a mensa et thoro, and that divorce will not be granted except upon prayer. Whittington v. Whittington, 2 Dev. & Bat. 68. The right to alimony (except as in Rev. Code, c. 39, s. 4,) depends upon the right to divorce, and therefore here, upon the right to divorce a vinculo.
*3 The only allegation in this petition to justify such a divorce is that of the marriage with Miss Joiner, which occurred seven years before the filing of the petition, which delay being unaccounted for, is a virtual bar to relief. Whittington v. Whittington (above.) The separation was no ground, for such divorce, as that was by consent. Wood v. Wood, 5 Ire. 674. The above delay would bar even an application for the other sort of divorce, supposing that the prayer here extends to that.
The other allegations, of cruelty, &c., are not articulate. Everton v. Everton, (above.)
Until the fact of marriage is established the court cannot grant alimony. Shelford on Div. (33 Law Lib., p. 347.) Durant v. Durant, 1 Add. 116; Smyth v. Smyth, 2 Add. 254, Paynter on Mar & Div. (13 Law Lib. 86.)
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PEARSON, C. J.
His Honor was of opinion that the allowance of alimony pendente lite was a matter confided to his discretion. In this he was mistaken. Whether the matter set forth is sufficient to entitle the petitioner to a decree for alimony, assuming it to be true, is a question of law; and the discretion confided to the court below is in regard to what is a reasonable amount for the support and sustenance of the petitioner and her family. The provision of the act, Rev. Code, c. 39, s. 15, that upon an appeal “this court shall re-examine only the sufficiency of the petition to entitle the petitioner to relief,” treats it as a question of law, and excludes the other from re-examination, treating it as a matter of discretion merely.
To this error we ascribe the doubt of his Honor as to whether an appeal could be granted from an order refusing to allow alimony. His attention was not called to the case of Taylor v. Taylor, 1 Jon. 528, where it is expressly decided that the petitioner may appeal under the provision of the statutes upon the subject of “appeals.” It is true that decision was made upon the act of 1852, c. 53; but it is ap-aprent that the act before us is in this respect the same.
It was contended on the argument that, supposing his Honor had a right to allow the petitioner to appeal, he had no power to do so without requiring security; and much stress was laid on the fact that the 16th sec. of the Rev. Code, c. 39, in giving an appeal from the final
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judgment, has an express provision that the court may grant the appeal without security, whereas the 15th section has no such provision.
The explanation is, that in reference to appeals from interlocutory judgments and decrees, such a provision had been already made by c. 4, s. 23, which allows appeals “upon such terms as shall appear to the court just and equitable.”
It was then insisted that it appears by the petition that the question of marriage or no marriage is the main issue between the parties, and that alimony cannot be allowed until that matter is disposed of: for this Shelford on Divorce, 33 Law Lib. par. (587,) 347, was cited; such no doubt is the rule in England, but as is said, Wilson v. Wilson, 2 Dev. & Bat. 377, “The jurisdiction of the Superior Courts being given by statute, the power of the court must be collected either from express enactments or from the general scope of these statutes, and no power can be derived by inference or from any analogy furnished by a coincidence of the provisions of the statutes with the practice of the Ecclesiastical Courts in England.” Our statute is general– includes all petitions for divorce and alimony–makes no provision for disposing of the question of marriage or no marriage as a preliminary one–and puts the right to be allowed alimony pendente lite upon the sufficiency of the matter set forth in the petition; proceeding upon the idea that it is better when a woman makes oath under the penalty affixed to perjury to the fact of marriage, to take it to be true for the purpose of allowing alimony pendente lite, even although it may turn out to be false and the man may have but little chance to get back what he ought not to have been compelled to pay, rather than subject a wife to the danger of starvation, if a brutal husband makes oath denying the fact of marriage, which may turn out to be false.
*4 But the question is not presented by this case. The petition makes a distinct allegation of the marriage, and puts the gravamen
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on the allegation that the defendant has repudiated the petitioner, and is not only living in adultery with another woman but has gone so far as to marry her, and live openly with her as his wife in the city of Wilmington, and that, (with a view of putting away the petitioner and getting rid of her as his wife, after living with her in New York, Baltimore and Wilmington openly as such, and recognizing her and their infant child in the relation of husband and father for several years,) he acted towards her in a brutal and harsh manner, and actually committed upon her a dangerous assault with a knife, so that she had to seek protection of her person and life by taking out a peace-warrant against him, until she was driven to desperation, and was forced to agree to accept of an allowance of $10 a month and take their child and go back to the city of New York, sometime after which he married Miss Catherine Joiner, and is openly living with her as his wife!
For the purpose of this motion for alimony pendente lite, we are confined to the allegations of the petition, and we are to take them as true; so there is no issue as to the fact of marriage or no marriage, and “the matter set forth is not only sufficient to entitle the petitioner to a decree for alimony,” but the case discovers a degree of hardened villainy seldom met with in the annals of crime.
When the defendant has an opportunity of being heard, we presume he will deny the fact of marriage; and the trial will decide either that the petitioner has committed perjury in regard to matters about which it will be easy to convict her, or else that she is an injured and persecuted woman.
It was further insisted that the delay for seven years after the defendant married Catherine Joiner and lived with her openly as his wife, is a bar to this application, in the absence of any allegations to account for it; and Whittington v. Whittington, 2 Dev. & Bat. 68, is relied on. In that case it is held that a delay for any length of time after the six months required by the statute, ought to be accounted for,
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and suit, especially on the part of the husband, although no time is fixed as a precise bar, should be brought within so short a time as to show that he is acting on the wrong itself, and not merely because he desires a divorce for some ulterior purpose; and that long delay unaccounted for is evidence of connivance, and shows that the complaint is not made “in sincerity and truth for the causes set forth in the petition.”
The draftsman of this petition seems not to have been aware of the necessity of accounting for the delay, so as to rebut the presumption of connivance; but we think the petition, although in a very disconnected and inartificial manner, discloses facts which are so far sufficient to account for the delay as to rebut the presumption of connivance. After the petitioner went back to New York, she could not claim this State as the place of her residence, and, in order to maintain a petition for a divorce, it was necessary for her to come back and live here three years: Schonwald v. Schonwald, 2 Jon. Eq. 367.
*5 This petition is filed in 1857, and sets out that the defendant commenced living in adultery with Catherine Joiner seven years before that date; so her residence in New York accounts for three years of the time, and the statute required a delay of six months, which makes half of the time, supposing that she came on here to live soon after she heard of her husband’s second marriage; but besides she sues in forma pauperis, and swears that she has no means of support for herself and child, and the court is obliged to take notice of the fact that it is very difficult for one so poor to institute and carry on a proceeding of this kind without great delay. Witness this case! commenced in 1857; the order setting it for hearing set aside in 1867; and the interlocutory decree refusing to allow alimony, sent to this court by leave of the judge to appeal without security, and then note the difference
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between a husband and a wife! What motive had she to connive at her husband’s unfaithfulness? The delay must have been on account of her inability to sue.
There is error; decretal order reversed; and ordered that the petitioner be allowed alimony pendente lite of such reasonable amount as may in the discretion of the court below seem just, under all the circumstances of the case.
This will be certified.
PER CURIAM. Order accordingly.