Dorothy Elizabeth Barton duPont, cross-complainant, sought award of separate support and maintenance from Alfred Victor duPont, cross-defendant, in two separate actions based upon allegations that she was abandoned by her husband without legal cause and that she is in destitute and necessitous circumstances. Neither cause is in connection with any divorce action. On motions to dismiss the cross-complainant's actions on ground that the Court of Chancery has no jurisdiction to award relief sought. The Court of Chancery, Seitz, Vice Chancellor, held that the Family Court Act creating the Family Court for New Castle County purports to make exclusive its remedy in the Family Court under the nonsupport statutes for a wife abandoned by her husband, but the remedy provided is not an adequate remedy at law, and, hence, does not deprive Chancery Court of its inherent jurisdiction to award separate maintenance to wife abandoned by her husband in proceeding not involving divorce.
Motions to dismiss denied.
[32 Del.Ch. 57] James R. Morford, William H. Bennethum, and Morton E. Evans of Morford, Bennethum, Marvel & Cooch, all of Wilmington, for Dorothy Elizabeth Barton duPont.
Arthur G. Logan, and Samuel R. Russell of Logan, Marvel & Boggs, Wilmington, for Alfred Victor duPont.
SEITZ, Vice Chancellor.
Dorothy Elizabeth Barton duPont, as the wife of Alfred Victor duPont, asks this Court in two separate actions to award her separate support and maintenance based upon allegations that she was abandoned by her husband without legal cause and that she is in destitute and necessitous circumstances. Neither cause is in connection with any divorce action. Both Mr. and Mrs. duPont live in New Castle County. Her husband has moved to dismiss her actions on the ground, inter alia, that the Delaware Court of Chancery has no jurisdiction to award such relief. The parties have agreed that I should first dispose of the jurisdictional question.
Mrs. duPont's counsel contends that the Delaware Chancery Court has inherent jurisdiction to award separate maintenance to
a wife abandoned by her husband in a proceeding not involving divorce. Counsel for her husband argues that the Delaware Court of Chancery never had jurisdiction of proceedings seeking separate maintenance; but, even if it did, it was deprived of such jurisdiction in New Castle County by the act creating the Family Court for New Castle County, 45 Laws of Del. Chap. 241; and in any event Paragraphs 3527-3539 of the 1935 Code provide an adequate remedy at law.
Let us consider Mr. duPont's contentions. He first says this Court never had jurisdiction in this type of case. His argument goes as follows: The High Court of Chancery of Great Britain did not have jurisdiction to award [32 Del.Ch. 58] separate maintenance to a deserted wife apart from other factors not here present; the Supreme Court of Delaware in Glanding v. Industrial Trust Co., 28 Del.Ch. 499, 45 A.2d 553, held that the jurisdiction of the Delaware Court of Chancery consists of the complete system of equity as administered by the High Court of Chancery of Great Britain until the Legislature provides otherwise; since the English Court of Chancery did not exercise jurisdiction in this type of case and since our Legislature has not given it such jurisdiction, it follows that this Court does not have such jurisdiction.
Let us examine the major premise in this reasoning. An examination of the English law on this question prior to the enactment of our Act of 1726-1736 or even prior to the Separation, discloses that the High Court of Chancery of Great Britain wavered back and forth in the treatment of the question of jurisdiction over an action by a deserted wife solely for separate maintenance. The Alabama court noted this uncertainty in Glover v. Glover, 16 Ala. 440. The tendency in most of the earlier cases in this country was to conclude that, absent statute, our equity courts also lacked jurisdiction to award separate maintenance. There was substantial authority to the contrary. However, the majority view today in the United States is in favor of equity jurisdiction. See 141 A.L.R. 399. It must be conceded that many of the cases so holding are governed by statute.
The solution of the problem is not without difficulty. As stated, the High Court of Chancery of Great Britain did in some types of cases entertain jurisdiction over actions for support. Most of the English cases did not recognize actions of the types here involved presumably because they followed the views of the ecclesiastical courts which limited [32 Del.Ch. 59] their jurisdiction to cases where something akin to divorces involving separation from bed and board was involved. The High Court of Chancery generally took jurisdiction in cases where the wife's separate estate was involved or where the husband's conduct was of a certain type. A careful reading of the many English cases leaves the matter in doubt and I resolve the doubt by considering the case to see whether it comes under any of the historic heads of equity jurisdiction. Compare Glover v. Glover, supra.
The duty of a husband to support and maintain his wife is firmly imbedded in the common law apart from statute. 26 Am.Jur. Husband and Wife § 337. Where he fails to discharge his legal duty through his own fault his wife is entitled to call upon an appropriate court to enforce that right. Unless she possesses an adequate remedy at law there would seem to be no compelling reason why the Court of Chancery should turn its back. Compare Brown v. Brown, 3 Terry 157, 29 A.2d 149. The lack of an adequate remedy at law to enforce a legal right is a secure basis of equitable jurisdiction. Moreover a wife cannot here sue her husband at law. Plotkin v. Plotkin, 2 W.W.Harr. 455, 125 A. 455.
I conclude therefore that the Delaware Court of Chancery has jurisdiction to award a wife separate maintenance apart from a divorce action unless such wife has an adequate ...