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Gilbert v. Gilbert

Superior Court of Delaware, New Castle County

November 20, 1961

Eldon E. GILBERT, Plaintiff,
v.
Doris C. GILBERT, Defendant.

Page 372

On motion of plaintiff to dismiss defendant's petition for an order directing plaintiff to pay her suit money and alimony pendente lite, based on the provisions of Title 13 Del.Code, § 1530. Motion to dismiss granted, so far as it relates to claim for alimony pendente lite.

[54 Del. 254] Thomas Herlihy, Jr., Wilmington, for plaintiff.

C. W. Berl, Jr., Wilmington, for defendant.

LYNCH, Judge.

On February 7, 1961 plaintiff sued for divorce, charging that defendant wilfully deserted plaintiff about January 9, 1959, which wilful desertion has continued to the time of filing the suit. In her answer defendant has denied the wilful desertion, but admitted leaving the marital domicile.

Defendant has petitioned the Court to allow her suit money and alimony pendente lite. Plaintiff has moved to dismiss this petition so far as it relates to the claim for alimony pendente lite.

The parties were married on August 3, 1941 and lived together as husband and wife until January 9, 1959. On or about that date, the wife left the marital domicile.

Doris C. Gilbert, the defendant, sued the plaintiff in 1957 (No. 337 Civil Action, 1957) for a divorce in this Court, alleging[54 Del. 255] that her husband, the plaintiff here, was guilty of habitual drunkeness. After hearing a number of witnesses for both parties, including a physchiatric expert, her divorce petition was dismissed by the Court which refused her a divorce.

The plaintiff contends by his motion to dismiss that the defendant's motion for alimony, suit money, and expenses fails to state a claim upon which relief can be granted and, inter alia, that any action for her support and maintenance should be brought in the Family Court. The parties have been before the Family Court of this County relative to the custody of their son; and the defendant, at one time, filed a complaint there for support of herself and her son. She did not, however, press for any action on the matter of her support, and there is no Family Court order for the support of the wife or the son. It is admitted that the plaintiff has, however, been making voluntary payments to the defendant for the support of the child.

The question for decision at this time is the jurisdiction of this Court to consider and make an award to the defendant-wife of alimony pendente lite in light of the Family Court Statute, Title 10 Del.C. Ch. 9, § 951.

That cited section provided that the Family Court was to have 'Exclusive Jurisdiction' over cases involving the failure or refusal of a husband to support his wife if she is 'in destitute or necessitous circumstances'. Did the enactment of that section of the Family Court Statute affect the jurisdiction of this Court to grant alimony pendente lite so as to divest this Court of the jurisdiction granted by Title 13 Del.C. § 1530, to allow alimony pendente lite to wives in need of such alimony?

Title 10 Del.C. § 951 provides, inter alia,----

'951. Exclusive jurisdiction

[54 Del. 256] 'The Family Court shall have exclusive original jurisdiction in all proceedings in New Castle County----

* * *

* * *

Page 373

'(6) Wherein any husband, without just cause, * * * wilfully neglects or refuses to provide for the support and maintenance of his wife in destitute or necessitous circumstances * * *.'

Section 4(f) of the original Statute contained the same language now to be found in 10 Del.C. § 951.

The Family Court Statute was originally enacted as Chapter 241 of Volume 45, Laws of Delaware. Section 1 of that Statute was titled 'Purpose, Basic Principle and Construction' and it recited, in part,----

'The purposes of this Act are * * * to give original and exclusive jurisdiction to one Court in which matters pertaining to a family, * * * may be adjudicated, the said Court to have jurisdiction over both civil and criminal matters, * * *. The sections of this Act ...


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