2 Paige Ch. 62 | New York Court of Chancery | 1830
By suffering the bill to be taken as confessed, the defendant admits he has been guilty of the adultery charged, and under such circumstances as to entititle the complainant to a divorce. He cannot afterwards set up any matter in opposition to her claim for costs, or for alimony, which if true would have been a sufficient ground for refusing the divorce. If any such matter existed, the defendant should have put in an answer, insisting thereon as a bar to the suit. The reference to a master is to satisfy the court that a divorce ought to be granted, and to prevent collusion between the parties. If the complainant is entitled to a divorce on the ground of the adultery, costs follow of course. If the wife is complainant, the husband who has been guilty of adultery cannot be excused from contributing to the support of the children of the marriage, or from an allowance by way of alimony to the wife, if her circumstances render such an allowance necessary or proper. There must be a decree in this case dissolving the marriage contract, and the usual clause must be inserted in every case of this kind, prohibiting the defendant from marrying during the life time of the complainant. Although the defendant would be punishable for felony if he married again, yet this clause is necessary in order to prevent him from imposing upon others, who might suppose he was capable of contracting matrimony if the decree was general.
The defendant must pay to the complainant or to her solicitor the costs of this suit to be taxed, including reasonable counsel fees to be settled and included in the same bill by the taxing officer.
It must be referred to the master who made the report as to the matters stated in the complainant’s bill, to ascertain and report which of the parties ought to have the care and custody of the children of the marriage; and if he shall award the custody of them or either of them to the wife, that