Arthur G. Logan and Stephen E. Hamilton, Jr., of the firm of Logan, Marvel & Boggs, of Wilmington, for the plaintiff below, appellant.
James R. Morford, of the firm of Morford, Bennethum, Marvel & Cooch, of Wilmington, for the defendant below, appellee.
WOLCOTT and TUNNELL, JJ., and BRAMHALL, Vice Chancellor, sitting.
This cause is on writ of error to the Superior Court of New Castle County in
[46 Del. 594] The motion papers allege that the appellee herself is not financially able to pay the fees and expenses necessarily incident to this action, and that the plaintiff, on the other hand, is financially able to furnish them for her. In support of the motion it is urged that the authority to make the allowances requested is vested in the court by Para. 3508, Revised Code of Delaware, 1935, and if not so vested, it is an inherent power of the court.
Against the motion it is urged that the above-mentioned Delaware statute authorizes the allowance of suit money in divorce cases only, as distinguished from annulments; that neither the court below nor this court on appeal has inherent power to grant the motion; that our statutory provision for the allowance of suit money in divorces, since it included no such provision as to annulments, amounts to an implied exclusion of any such power the court might otherwise have had; that this court as an appellate court is confined strictly to a consideration of errors in the records of trial courts, and, this application for suit money being in the nature of an original action, and requiring the finding of facts, it is beyond the power of this court to enter an order allowing it; that the defendant in any case is not entitled to the relief sought, because she herself has adequate resources to pay her expenses and to employ counsel; and, finally, that the record establishes that the defendant is unjustly withholding certain valuable furniture and heirlooms of the plaintiff against his will, and has been guilty of perjury in these proceedings below, and for those reasons, if for no other, is ineligible for the relief here sought.
Adverting first to defendant's claim that the power of this court to make the allowance in question is vested in us by Para. 3508, Revised Code of Delaware, 1935, we find that the argument for it is an involved but quite ingenious one, based upon the peculiar history of the Delaware divorce and annulment statutes.
[46 Del. 595] Our first statute putting in the hands of the judiciary the power to dissolve marriages was adopted in 1832 and appears as Chap. CXLIV, Vol. 8, Laws of Delaware. Sec. 7 thereof gave the wife a right to petition for alimony pendente lite. That statute nowhere distinguished between divorces and annulments, affording 'divorce' for reasons now constituting grounds for annulment as well as for what we now know as divorce.
Chapter 75, Revised Code, 1852, did not use the word 'annulment' but, with one exception, distinguished between divorces, on the one hand, and 'petitions to declare marriages null and void', on the other hand. The one exception was Sec. 11, containing the following language, of which defendant has made much in argument:
'Sec. 11. I case of a marriage declared void from the beginning, for either of the causes, other than insanity, mentioned in Section 2, the issue of such marriage shall be deemed to be illegitimate; except that when the marriage is dissolved because of a prior marriage of either party, if the second marriage was contracted in good faith, * * * the issue of the second marriage shall be deemed to be the legitimate issue of the parent who was capable of contracting the marriage.
'In no other case shall a decree of divorce affect the legitimacy of children; and the court shall take (sic) such order for the distribution, care and maintenance of the children, as is just and reasonable, and may revise and change such order, as occasion may require.' (Emphasis supplied.)
The language of the above Sec. 11 remained  in our law until the revision of 1907.
Chap. DCXXXVIII, Vol. 11, Laws of Delaware, enacted in 1859, first authorized 'suit money' for a wife, simply inserting
[46 Del. 596] the provision therefor into the sentence which authorized alimony pendente lite.
Chapter 549, Vol. 14, Laws of Delaware, enacted in 1873, represented a restatement of the law as to divorces and 'petitions to declare marriages null and void.' Under it the Superior Court was granted 'sole cognizance to decree marriages null and void' for certain grounds, including among them bigamy, which was alleged as one ground for the annulment petitioned for in the pending action. Section '5' of the 1873 statute contained a statement of the suit money and alimony pendente lite law as it still appears in a portion of Para. 3508, Revised Code of Delaware, 1935: 'Section 5. The court may grant alimony to the wife for her sustenance pending her petition for divorce, and may order and direct the husband to pay such sum as may be deemed necessary to defray the expenses in conducting her case, whether the application be on the part of either the wife or husband, and shall protect her from personal restraint.'
The whole law in respect to divorce and annulment was in many respects revised in 1907 by Chap. 221, Vol. 24, Laws of Delaware. Under that revision the grounds for annulment and divorce were reshuffled, annulments being so labeled and distinguished from divorces. The provision for alimony pendente lite and suit money, however, as above noted, was left applicable merely to petitions 'for divorce'.
Interpreting these several stages of statutory development, defendant weaves from them a pattern of argument. When suit money was provided for, it was put on precisely the same footing as alimony pendente lite. The provisions for alimony pendente lite were designed to apply, says she, and originally did apply, to all proceedings for dissolution of marriages. Evidence of the fact that the word 'divorce' was not intended to exclude annulments, but was employed as a generic term including annulments, appears from the language in use as late as 1907, in which a specific proceeding for annulment is mentioned, then followed by an expression distinguishing it from 'other' types [46 Del. 597] of 'divorce'.  The particular language of the section as to suit money has not been changed in the slightest as to its substance. Hence, these same provisions, she concludes, should still be held to mean what they undoubtedly used to mean up until 1852, and may have meant up until 1907, i. e., as authorizing alimony pendente lite and suit money in any proceeding whatever for the dissolution of a marriage.
The great obstacle in the way of adopting defendant's theory, however, is the clear and unambiguous form of our present statute. It would occur to no one merely reading its present language that the paragraph conferring the express power upon the court to grant suit money in divorces had any application to annulment proceedings. Whatever intermingling or ambiguity had formerly appeared, annulment was definitely separated in the 1907 revision and treated as an action distinct from divorce. 'Divorce' was, therefore, re-defined, so that its meaning in the re-enacted old section providing for suit money and alimony pendente lite in cases of 'divorce' was no longer broad enough to include annulments. While there is a presumption that old statutory language embodied in a revision still retains its old meaning,  that presumption applies only where the remainder of the statute as revised is consistent with such a view, for this rule of construction, in common with all others, falls where, as here, the statutory language, when read as a whole is perfectly clear and consistent throughout, and there is no room for judicial interpretation. State v. Johnson, 4 Terry 294, 46 A.2d 641. Since the power to award suit fees and expenses does not appear anywhere in, or as an incident to, Para. 3508 of our 1935 Code, we are compelled to hold that it is not conferred by that statute. Compare State ex rel. Wootten v. District Court, 57 Mont. 517, 189 P. 233, 9 A.L.R. 1212.
Next we must consider defendant's claim that the power to [46 Del. 598] grant an allowance for
Article IV, Sec. 7, of the Delaware Constitution vests in the Superior Court, in civil cases, all common law jurisdiction and 'all other the jurisdiction and powers vested by the laws of this State in the Superior Court.' Obviously, the power here invoked is not a common law power; the common law courts had no jurisdiction whatever over annulment suits or divorce actions, and the granting of suit fees was wholly foreign to their practice. Brown v. Brown, 3 Terry 157, 29 A.2d 149.
The next question, then, is whether any statute of the state other than the one we have already considered should be so read as to authorize granting the defendant's motion. The one relied upon for the purpose is the very statute conferring annulment jurisdiction. It is Para. 3502, Revised Code of Delaware, 1935, and is couched in the following simple language: '3502. Sec. 6. Jurisdiction of Superior Court:--The Superior Court of this State shall have and entertain jurisdiction of all actions for annulment of marriage, or for divorce.'
In ensuing paragraphs the statute proceeds to provide for the filing of a petition in the prothonotary's office, to require an affidavit, and to specify what type of service shall be sufficient; it does not, however, purport expressly to contain the rules for administration of the jurisdiction conferred. The necessary concomitants[46 Del. 599] of jurisdiction were implied in the statute. D. v. D., 2 Terry 263, 267, 20 A.2d 139.
Although upon the adoption of our first annulment and divorce statute the trial of annulment causes was wholly foreign to the jurisdiction of common law courts, that is not to say that it was a new field of litigation. On the contrary, such actions had long been tried in the Ecclesiastical Courts of England. Those courts had developed and proclaimed their rules of procedure and defined those extraordinary incidents to matrimonial jurisdiction which were deemed necessary in order in some measure to equalize the positions of the contending parties. One of those incidents to jurisdiction in such actions was the practice of awarding the wife interim alimony and suit money upon a proper showing. Portsmouth v. Portsmouth, 3 Addams Eccl. Rep. 63; 162 Eng. Reprint 404.
It has always been recognized in the State of Delaware that although the decisions of the spiritual courts were not binding upon us, nevertheless, our courts regard their precedents with the utmost respect in matrimonial causes and follow them wherever they are compatible with our system. Jeans v. Jeans, 2 Harr. 38; Brown v. Brown, supra. Thus, when the Superior Court was confronted with a proposal to compel the physical examination of a wife against her will in an annulment action, although the common law courts, in the exercise of nothing more than their traditional functions, would have been powerless to make such an order, the Superior Court, acting simply under Paragraph 3502, Revised Code of Delaware, 1935, looked to the precedents in the Ecclesiastical Courts and ordered the examination to be taken. S. v. S., 3 Terry 192, 29 A.2d 325. See also Brown v. Brown, supra. Whatever may be the view in any other jurisdiction, therefore, in Delaware it is clear that our courts have heretofore entertained the view that the creation in 1832 of jurisdiction in the Superior Court to dissolve marriages meant a jurisdiction in the sense in which it was known and accepted at the time of the
adoption of the statute, that is, as nearly as may [46 Del. 600] be, in conformity with the established practice in the Ecclesiastical Courts of England.
But we do not mean to suggest that the result achieved in Delaware is at variance with the law elsewhere. Many cases are collected in 4 A.L.R., 926; 9 A.L.R., 1222; and 110 A.L.R., 1284, which are authorities for the proposition that the granting of jurisdiction to hear annulments, without there being in the statute any specific reference to suit money, automatically carries with it the right to award suit money. See also 35 Am.Jur., 'Marriage', § 70 and 55 C.J.S., Marriage, § 63. The theory is that the concept of annulment jurisdiction itself necessarily contemplates the power to award suit money, for without that power the remedy would be incomplete and in many instances ineffective. A very great majority of American jurisdictions so hold. Thus, if the Delaware courts had not looked upon the decisions of the English Ecclesiastical Courts as determinative of the character of matrimonial jurisdiction, it appears that they would have been forced by the weight of American precedent to the same conclusion.
Against this imposing array of authorities favoring the implication of the power here under discussion, the plaintiff, on the other hand, has been able to cite only four decisions: Monteleone v. O'Hanlon, 159 La. 796, 106 So. 308; Arndt v. Arndt, 399 Ill. 490, 78 N.E.2d 272; Cohen v. Cohen, 121 N.J.Eq. 299, 188 A. 244; Wigder v. Wigder, 188 A. 235, 14 N.J.Misc. 880. The Louisiana case so cited is apposite, but the majority opinion does not discuss the point with which we are here concerned, while the dissenting opinion, which does discuss it, appears to us to be persuasive. The Illinois case reveals that Illinois, unlike Delaware, recognizes no affinity for or inheritance from the Ecclesiastical Courts and entertains a view as to the basis of a wife's right to exact support from her husband which is fundamentally different from the view adopted in Delaware, as announced in Du Pont v. Du Pont, Del., 85 A.2d 724. The two New Jersey cases are simply not in point. The Cohen case was [46 Del. 601] a suit for specific performance of a separation agreement, and the Wigder case was a rather ingenuous effort to obtain an order for permanent alimony after the marriage had been decreed to be void ab initio.
But it must be acknowledged that virtually all of the decisions collected in the above-noted annotations upholding the implied power to award suit money speak of the power to grant suit money and its concomitant, alimony pendente lite, as being within the 'equity powers' of the particular court in question. Plaintiff argues, therefore, that since our Superior Court is strictly a law court, after all, these ...