Action by wife for separate maintenance and support. The Chancery Court, 93 A.2d 500, entered judgment from which the wife appealed. The Supreme Court, Tunnell, J., held that Chancellor was not authorized to reduce the award of maintenance to which wife would otherwise be entitled because of wife's pre-marital activities or by reason of giving of false testimony by wife with respect thereto.
Reversed and remanded.
Wolcott, J., dissented.
See, also, Del. ch., 99 A.2d 252.
[34 Del.Ch. 269] James R. Morford and William Marvel (of Morford, Bennethum, and Marvel), Wilmington, for appellant.
Arthur G. Logan and Douglas W. Troll (of Logan, Marvel & Boggs), Wilmington, for appellee.
WOLCOTT and TUNNELL, Justices, and TERRY, Judge, sitting.
TUNNELL, Justice (for the majority).
This case is up from the Court of Chancery on appeal from a judgment granting separate maintenance to a wife. There is no appeal from the Chancellor's findings that the wife (here plaintiff) was abandoned without just cause and that she is in financial distress; the appeal is from the amount of the award-$300 a month-, which the wife contends was arrived at by misapplication of the law, and which in any case, she says, is in the circumstances so manifestly inadequate as to constitute a clear abuse of judicial discretion.
The Chancellor's opinion, with a frankness designed to protect the rights of any who would challenge it, explains his reasoning in detail. 93 A.2d 500, 505. It concludes thus:
‘ I now consider the amount of the award to plaintiff. Plaintiff seeks $1,500 per month. She was granted interim relief of $600 per month. I can say that in the absence of the ‘ diminishing’ [34 Del.Ch. 270] factors mentioned above, I would here have awarded plaintiff a substantially larger sum because defendant has substantial means. However, for the reasons stated, I do not feel that she is entitled to the benefit of the ordinary rule and should in fact be penalized. I conclude that $300 per month commencing February 1, 1953 and until further order of the court will be reasonable.'
Since the award was admittedly below the figure to which plaintiff would have been entitled under the ‘ ordinary rule’, she, therefore, focuses attention upon the nature of certain of the Chancellor's deductions and challenges his right to make them.
The first penalty was on account of ‘ perjury in these proceedings'. The explanatory background of the quoted expression is the Chancellor's finding that prior to her marriage plaintiff's means of support had been men. Exercising her charms for the entertainment of men, she had thereby maintained herself for several years on the champagne circuit of New York's cafe society. But the unsavory details can be spared. The point is that the Chancellor found such to have been her means of livelihood, and he also found that when specific questions were first put to her about it, in spite of her oath, she had denied the facts and, in order to supply a respectable explanation of her finances, had invented certain sources of income. This is what the Chancellor referred to as perjury.
The amount of the order was further reduced for certain other reasons which the opinion states thus:
‘ I further conclude that among other things, the plaintiff's concealed activities prior to the marriage, especially when combined with her post-marital actions, should also go to diminish the award. See 42 C.J.S., Husband and Wife, § 624.’
We have no way of knowing what the Chancellor referred to by the phrase ‘ among other things', nor is it clear to us exactly what he meant by ‘ post-marital actions'. The marital difficulties between these parties are for the most part the subject of conflicting accounts, and, unlike the case of the events preceding the marriage, we here have [34 Del.Ch. 271] no way of knowing what testimony the Chancellor took to be true. Therefore, we know neither the nature of these items nor the extent of their influence upon the award.
It appears from the opinion that by ‘ concealed activities prior to the marriage’ the Chancellor referred to the immoral life plaintiff had led for some years before her marriage, as above explained, and to plaintiff's pretending to her suitor to be a better woman than she was. It was found that plaintiff had in fact mentioned to defendant the improper sexual relationships she had carried on with two other men (not counting defendant), either during or after her first marriage, but she had apparently not disclosed to the defendant any more than two of these immoral relationships or the fact that they had been her means of support. As to defendant, he especially resented not being apprised of the fact that he was not the only man with whom plaintiff had been engaged in an exchange of favors. As to the Chancellor, it is not clear to us whether what particularly concerned him was the degree by which plaintiff's promiscuity had exceeded what she had previously described to her financé, or whether it was the meretricious nature of that promiscuity, or both.
Such is the record of the Chancellor's findings.
A strenuous effort was made by counsel for plaintiff to establish that the Chancellor's conclusions of fact were unsupported in the record, but they appear to us to have been fully justified. This plaintiff's past almost from girlhood has been gone through with a fine-toothed comb. It is astonishing, even with the expenditure of great sums of money, that so much apparently credible testimony could have been brought to light, in some cases so many years after the events. We accept as facts all such as the Chancellor specifically found.
Clearly the Chancellor was impressed by plaintiff's past, and he felt that both the moral degradation itself and her lying about it under oath put him under a duty to treat her differently from the way he would treat others in similar circumstances. So he deducted from her maintenance award-thereby correspondingly rewarding the defendant-some unspecified sum each month, to be repeated indefinitely.
[34 Del.Ch. 272] Now we must consider plaintiff's contention that in imposing these penalities he exceeded his authority. In deference to chronology, we shall first consider the deduction for activities prior to the marriage.
If plaintiff, by the misrepresentation of her character or occupation, had fraudulently induced defendant to marry her, that, of course, would be vastly different from the present case. It would draw into question the very marriage bond from which the duty of maintenance is derived. Indeed, the defendant here tried, though vainly, to establish such fraud. It developed, however, that he had known so much about plaintiff, and also had himself been involved with her in such a way, that the Chancellor was convinced that a man of ordinary prudence in the same circumstances-if logic will admit such a postulate-would not have been beguiled. The marriage bond joining these parties, therefore, remains unimpaired, and we are left with the residual question as to whether a concealment of facts which, because it
ought not to have deceived, is ineffective to destroy the marriage, is, nevertheless, effective to diminish the rights of the wife.
It must at once be noted in this connection that no imputations have been leveled against plaintiff's chastity after marriage to defendant. There is contradicted testimony tending to prove that she was quarrelsome, particularly about money matters, and that she had ‘ tantrums' and ‘ made life pretty difficult’ for defendant, so that he ‘ couldn't take it any more’, but the Chancellor either found the defendant's proof in itself insufficient, or he resolved the conflict against defendant, for he failed to find plaintiff in any way responsible for the separation. He held, in fact, that she had been deserted without ‘ legal excuse’ . In any case, the complaints now made about plaintiff have nothing to do with matters of sexual morality and cannot be held out as a continuation or recurrence of the old weakness. So far as the record shows, therefore, she made a complete break with the past when she took her marriage vows. Consequently, the question as to what bearing her pre-marital history has upon her rights as a wife is fixed in clear focus.
It is our view that if her concealment of these earlier activities does not amount to a fraud which will vitiate the marriage, then, so far as it concerns support, it amounts to nothing. Curtailing [34 Del.Ch. 273] the full extent of this woman's rights, in the light of her particular record, may satisfy the demands of a righteous indignation, but in so far as it would establish the precedent of offering husbands a cash premium for raking over the dead coals of the remote, pre-marital past, it would institute a rule which in general application would prove intolerable.
This whole subject is so constantly before the courts and is so vexatious in its nature that it is possible to find some authority somewhere for almost any kind of a view. Therefore, we have seen some cases in which courts, in fixing awards for support, appeared to take into consideration certain indiscretions or acts of immorality antedating the marriage. This has usually, if not always, been done as a matter of assumed and unquestioned right. Yet, even where the conduct was after the marriage, and hence under the a fortiori rule, there has been a marked growing tendency on the part of the courts to regard ...