James R. Morford and William Marvel, of Morford, Bennethum, Marvel & Cooch, Wilmington, for cross-plaintiff and plaintiff.
Arthur G. Logan, Wilmington, for cross-defendant and defendant.
There are complaints in two separate actions which will hereinafter be treated as one. In them plaintiff seeks [33 Del.Ch. 365] separate support and maintenance based upon allegations that she was abandoned by the defendant, her husband, without legal cause and that she is in destitute and necessitous circumstances. Defendant's answer denies, inter alia, that plaintiff is his wife and by counterclaim defendant seeks a declaration based on the declaratory judgment act or
This court's jurisdiction over the separate maintenance aspects of the case has been fully established.  This court granted interim relief, DuPont v. DuPont, Del.Ch., 90 A.2d 476, and this is the decision after final hearing. By stipulation most of the record in this case is the testimony and exhibits in an unsuccessful annulment action brought in the Superior Court by this defendant.  The balance of my record consists of certain oral testimony and stipulated matter.
Defendant sets forth many reasons why the plaintiff is not entitled to support and maintenance. His substantial contentions are:
(1) He and the plaintiff are not validly married because:
(a) Plaintiff's Texas divorce from a previous husband is invalid because it was obtained by fraud and collusion.
(b) Plaintiff induced the New York marriage ceremony with defendant through misrepresentations sufficient to constitute fraud under the applicable New York law.
(2) Plaintiff is not entitled to relief, even assuming the validity of the Texas divorce and the New York marriage, because she is guilty of lying in these proceedings.
Defendant says that even if all the foregoing contentions should be rejected, nevertheless, the facts are such as to justify the court in diminishing the amount of allowance to plaintiff.
[33 Del.Ch. 366] This matter can perhaps be best handled by setting forth a chronological narration of the facts as I find them. Plaintiff was born and reared in Texas. On July 7, 1934, when about 23 years of age, she married her first husband, Wigley. He was many years older than the plaintiff and had been previously married. In June of 1936 she left for California to pursue a career in the movies with Wigley's consent. She was not successful. Plaintiff left California and went to New York to pursue a stage career in the Fall of 1937, with Wigley's consent.
Shortly after her arrival she met Mr. & Mrs. A at the Rainbow Room, which I am told was then one of New York's better night clubs. Mr. & Mrs. A apparently gave many parties at the Rainbow Room and invited plaintiff to such parties. In 1938 Mr. A started having dates with the plaintiff and started taking her out alone to night clubs. Shortly after plaintiff met Mr. A she asked him for money which she said she needed for clothes and to support her and her mother. He gave her between $2,000 and $3,000. From then on Mr. A gave her money regularly until September, 1948 when she told him she was going to marry the defendant. In all he gave her a total of from $65,000 to $75,000. Plaintiff's mother, who lived with plaintiff, was aware that she was receiving such money.
In the meantime, on July 6, 1940 the plaintiff divorced her first husband, Wigley, in Texas. Defendant here seeks to attack the validity of the Texas divorce but I conclude, as did our Superior and Supreme Courts, that it may not be here attacked. The fact that its validity is being raised defensively does not in my opinion change the result since our Supreme Court held that the Full Faith and Credit Clause precluded a collateral attack.
Plaintiff says that Mr. A made the payments to her as a 'benefactor' and 'sponsor'. Some time in the early 1940's a form of an agreement was drawn by Mr. A purporting to be a contract whereby he was to advance money to further her professional artistic career and was to receive 10% of her profits. Plaintiff made practically no money from this source. Mr. A never received any commissions.
Mr. A testified that he and the plaintiff had sexual intercourse [33 Del.Ch. 367] periodically from 1940 to 1945. Plaintiff denies this testimony. Without setting forth in detail the cumulative effect of all the testimony, it is patently clear to me that Mr. A contributed these large sums of money to the plaintiff
in return for companionship and sexual favors. I conclude that the agreement whereby he was to be a sponsor and to receive a percentage of her earnings from her professional work was a subterfuge. In fact he gave her large sums long before the agreement was drawn. It is also noteworthy that prior to her marriage to defendant, plaintiff asked Mr. A to destroy the alleged agreement. In 1945 Mr. A, still a married man, attempted to terminate his relationship with plaintiff and actually stopped making the regular payments. I find that their sexual relations terminated in 1945 but that she made it clear that there would be unpleasant business consequences if he did not resume the regular $500 monthly payments. They were resumed.
The testimony shows that there were many other men in plaintiff's life during what I shall call the New York 'preduPont' phase. For example, in 1943 she met an Italian Count who was also a married man. She knew it. Despite plaintiff's denial the testimony leads me to conclude that the plaintiff had sexual relations with the Count on numerous occasions and that the Count gave the plaintiff many thousands of dollars in return for her favors.
There is testimony concerning many other men and in each case plaintiff denies having had sexual relations with them, but I believe it fair to infer from the entire testimony that she did have such relations with at least some of them.
Thus, I conclude that during the period of some several years prior to her marriage to defendant in New York, on November 20, 1948, the plaintiff supported herself and her mother by taking substantial sums of money from men in return for sexual favors. The amount of money received from her first husband and from her father's estate was so insignificant that it can be ignored here.
Now that we have seen plaintiff in what defendant would agree is her 'true light', it becomes equally important to place defendant in his true light. In 1947 defendant, then a married man of mature years, while visiting a friend, saw a picture of the plaintiff. [33 Del.Ch. 368] He said he would like to meet her and on the occasion of his next trip to New York phoned the plaintiff. Using his friend as an entree, he took the plaintiff to lunch. Portentously, this was April 1, 1947. Defendant told plaintiff he was married. I am convinced that both plaintiff and her mother tried by their remarks to give defendant the impression that plaintiff was highly virtuous and that they did not approve of the plaintiff's going out with a married man. This was a pretense since plaintiff in fact had been intimate in varying degrees with various married men and her mother knew it. However, even with due allowance for male egotism, it must be said that a reasonably prudent man should have wondered about words so at variance with actions.
Within a month or six weeks after defendant first met plaintiff he asked her to spend the week-end with him in Connecticut. It must be kept in mind that at this time he had been married about 23 years and, according to his own testimony, was 'happily married'. Plaintiff knew he was married and he knew that plaintiff knew he was married. Plaintiff at first refused, but finally agreed to spend the week-end with defendant. Defendant testified that during that week-end they had sexual intercourse. Plaintiff denies this but I believe that the fair inference is that they did have such relations.
Some time thereafter plaintiff told defendant that her first husband, Wigley, was sexually impotent throughout their marriage. However, defendant conceded that he had been told by plaintiff that she had been intimate with at least two other men, one in California and one in New York.
Plaintiff and defendant engaged in sexual intercourse at 'regular and frequent intervals' after the first week-end together. Thus, while still married and living with his wife defendant spent much time with the plaintiff. In September 1947 he chartered a yacht on which he and plaintiff took a cruise and slept together every night. Many other incidents too numerous to mention took place, both before and after talk of marriage, which revealed sexual intimacies between plaintiff and defendant.
In seeking to assert fraud as a defense, defendant relies principally[33 Del.Ch. 369] upon plaintiff's misrepresentations concerning her prior life with particular emphasis on the fact that she took money for sexual favors. He testified that he would not have married plaintiff had he known of her mercenary sex life. There is a certain irony about defendant's harping on this point in view of the evidence concerning plaintiff's conduct which I have just narrated. But defendant's explanation is that while he of course knew that she had been sexually intimate, nevertheless, he had no reason to believe that she took money for her favors.
Let us put aside for the moment the legal question as to whether under New York law the problem is affected by the receipt of money for sexual favors. It is nevertheless apparent that by paying for various yacht and train trips, etc., at a time when plaintiff was bestowing her favors upon him, he was in a sense purchasing such favors. The excuse of 'anticipating marital ...