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Malcom v. Superior Court In and For New Castle County

Supreme Court of Delaware

June 27, 1961

Mark Clive MALCOM, Petitioner,
v.
SUPERIOR COURT of the State of Delaware, IN AND FOR NEW CASTLE COUNTY, The Honorable Andrew D. Christie, Resident Judge, and The Honorable Judges sitting in the Superior Court of the State of Delaware, Respondents.

[53 Del. 523] Petition for a writ of prohibition.

Julian D. Winslow, Wilmington, for petitioner.

Nathan P. Michlin and Joseph P. Hurley, Wilmington, for intervenor.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and SHORT, Vice-Chancellor, sitting.

WOLCOTT, Justice.

This is a petition for a writ of prohibition to prevent the Superior Court of New Castle County from exercising jurisdiction over a pending divorce action in that court. When the petition was filed an order was entered issuing a rule to show cause and permitting the plaintiff in the divorce action below to intervene. The intervenor promptly moved to dismiss the petition.

The petition sets out the following factual situation:

On January 15, 1960, a wife, the intervenor here, filed a complaint for divorce in the Superior Court against her husband, the petitioner here, upon the ground of the husband's alleged adultery. The complaint alleged that the wife was a resident of Maryland and that the husband was a resident of New Castle County, Delaware. The husband was personally served and appeared generally in the divorce action.

Subsequently, on April 11, 1960, the wife, without leave of court, filed an amended complaint, we assume in substitution of the original complaint, setting forth two grounds for divorce, viz., the non-age of the wife at the time of marriage and the voluntary three-year separation of the parties without [53 Del. 524] reasonable expectation of reconciliation. These appear to be valid grounds for divorce under 13 Del.C. § 1522.

The husband then moved to strike the amended complaint on the ground that a divorce complaint may not be amended to set forth a new and different cause for divorce. His motion to strike was denied by order of the court dated July 6, 1960.

Page 762

Thereupon, the husband, on July 18, 1960, moved to dismiss the action on the ground that the amended complaint failed to make necessary jurisdictional allegations required by 13 Del.C. §§ 1502, 1525. The husband, one week later, also filed an answer to the amended complaint and apparently still pressed for decision on his motion to dismiss.

Thereafter, on January 18, 1961, the wife filed a final amended complaint. The Superior Court, on February 14, 1961, entered an order denying the husband's motion to dismiss and ordering him to answer within ten days the final amended complaint which was deemed to be the complaint in the divorce action.

At this juncture, the husband petitioned this court for a writ of prohibition to stop further proceeding in the Superior Court on the ground of an asserted lack of jurisdiction to hear the cause in that court. The following reasons are urged by the petitioner in support of his charge of lack of jurisdiction in the Superior Court:

1. The original complaint failed to allege that either party was a bona fide resident of Delaware as required by 13 Del.C. § 1525, such allegation as to the husband being made only upon information and belief.

2. 13 Del.C. § 1502 does not permit the amendment of a divorce complaint to set forth a new and different cause for divorce.

3. The final amended complaint failed to allege necessary jurisdictional averments required ...


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