Action by Alfred Victor duPont against Dorothy Elizabeth Barton duPont for annulment in which defendant filed application for alimony pendente lite and for legal fees and expenses. The Superior Court, Herrmann, J., held that in view of fact that prior suit was pending in chancery for support and maintenance embracing same period for which alimony pendente lite was sought, Superior Court would stay further proceedings on such phase of relief sought by defendant until final disposition of action in Chancery Court, but that court could, in its discretion, make grant of reasonable allowance of legal fees and expenses.
Further proceedings upon petition for alimony pendente lite stayed petition for legal fees and expenses granted.
See also 82 A.2d 376.
[46 Del. 282] Action for annulment of marriage by Alfred Victor duPont, plaintiff, against Dorothy Elizabeth Barton duPont, defendant. Petition of defendant for alimony pendente lite and for legal fees and expenses. Further proceedings upon the petition for alimony pendente lite stayed. Petition for legal fees and expenses granted.
Arthur G. Logan (of Logan, Marvel and Boggs) and Stephen E. Hamilton, Jr., all of Wilmington, for plaintiff.
James R. Morford, William H. Bennethum and Edward W. Cooch, Jr. (of Morford, Bennethum Marvel & Cooch), all of Wilmington, for defendant.
On December 7, 1950, the plaintiff filed a petition for the annulment of his marriage with the defendant, alleging that, by reason of an invalid divorce, the defendant had a husband living at the time of her marriage to the plaintiff. By amendment to his complaint, the plaintiff further asserts that the defendant fraudulently induced him to marry her. By her sworn answers, the defendant denies the plaintiff's allegations and she defends the validity of her marriage with the plaintiff.
The defendant now petitions for alimony pendente lite and for reasonable legal fees and expenses to enable her to present her defense in this cause. By both affidavit and testimony, the defendant has represented that she is destitute except for funds which she has been able to borrow from friends. Pursuant to a [46 Del. 283] requirement imposed by the Court, the defendant has filed an affidavit in this cause to the effect that she has not entered into, and will not in the future enter into, any agreement with any attorney for the payment of counsel fees in this action, upon a contingency basis or otherwise. The defendant's attorney has filed an affidavit confirming that an allowance by the Court will constitute the sole source of fees for defendant's counsel in this case.
The petition for alimony pendente lite will be considered first.
The plaintiff contends that this Court lacks the power to grant alimony pendente lite in an annulment action. He says that such power must be founded upon statute, and that there is no such statute in Delaware. The defendant, on the other hand, urges that the statutory power to grant alimony pendente lite in an annulment action may be found in a proper construction of Paragraph 3508, Revised Code of Delaware, 1935. She further contends that, even if this is not so, this Court nevertheless has the inherent power, independent of statute, to grant such relief as one of the necessary incidents which follows the general jurisdiction of this Court in annulment actions. There has also been raised in this case the question of whether or not any power, which this Court may have had heretofore to grant alimony pendente lite, has been divested by the grant to the Family Court of New Castle County of exclusive original jurisdiction in any matter wherein a husband wilfully neglects or refuses to provide ‘ for the support and maintenance of his wife in destitute and necessitous circumstances'. See 45 Laws of Delaware, Chapter 241.
At this stage of this case, I consider it unnecessary to decide these questions of jurisdiction. I decline to assume whatever jurisdiction this Court may have with respect to alimony pendente lite because there is now pending in the Court of Chancery of this State a prior action between the same parties, [46 Del. 284] seeking on the one hand, and opposing on the other, the same remedy, and relating to the same basic questions of fact. In that action, the defendant herein asks the Chancery Court to award her support and maintenance upon the grounds that she was abandoned by her husband, the plaintiff herein, without legal cause and that she is in destitute and necessitous circumstances. The Chancery action was filed on October 13, 1950, before the commencement of this annulment action, and the Chancery Court has taken jurisdiction in the matter. See DuPont v. DuPont, Del.Ch. 1951, 79 A.2d 680.In the Chancery suit, the defendant herein seeks support and maintenance for a period commencing on July 28, 1950, the date of the alleged desertion and abandonment, and continuing indefinitely thereafter. By her petition to this Court for alimony pendente lite, the defendant asks for support and maintenance for the period commencing on December 7, 1950, the date of the filing of the petition for annulment, and continuing until the cause before this Court may be finally determined. It will be apparent that the period of time for which alimony pendente lite is sought is included within that period of time for which support and maintenance are prayed in the Chancery action. Stripped of terminology, the remedy sought by the defendant herein is precisely the same in both Courts. Alimony is, by definition, support and maintenance. Brown v. Brown, 1942, 3 Terry 157,28 A.2d 149.
Hence, assuming that this Court has jurisdiction in the matter of alimony pendente lite for the defendant, it is a jurisdiction concurrent with that assumed by the Court of ...