62 N.C. 215 | N.C. | 1867
The petition had been filed in the fall of 1857, and alleged that in 1843 the petitioner, then a widow residing in New York and carrying on a profitable business there as milliner, had been married to the defendant; in 1844 they removed to Baltimore, and lived there as man and wife; in 1845 the defendant went to Wilmington and established himself as a physician, and, having corresponded in the interval with the petitioner, who had remained, by agreement, carrying on her trade *153 in Baltimore, and awaiting the results of his enterprise, after he had succeeded, sent for her and their child to join him; upon her arrival she was treated as his wife for a year or two; all this while the petitioner had conducted herself as a faithful, affectionate and obedient wife. After they had lived together for some time in North (216) Carolina a change in his demeanor occurred, he became cold and then cruel, proceeding to personal violence, and making a dangerous assault upon the petitioner with a knife, so as to compel her to obtain security of the peace against him, and finally, as she was entirely among strangers and in despair, to consent to a separation upon the terms that she might keep the child and receive of the defendant ten dollars per month for their support; upon this she went to New York, hoping that time might soften the defendant and restore harmony between them. For a few months he remitted the allowance regularly, but after that became irregular and finally ceased to do so, and for five or six years has given her nothing. About seven years ago he married a Miss Catherine Joiner, and is now living with her as his wife, and denies having been married to the petitioner. The defendant is worth some twelve or fifteen thousand dollars, but has made an assignment of his property, as petitioner believes, in order to defeat her claim to a support. Petitioner has resided in this State for more than three years preceding the time of filing the petition, etc., etc., praying for a divorce a vinculo and for alimony (both pendente lite and other), and for other relief, etc.
To this petition an answer had been put in by the defendant.
His Honor disallowed the motion for alimony pendente lite, and granted an appeal to the petitioner without requiring security, "although inclined to believe that no appeal is given by the Rev. Code." His Honor was of opinion that the allowance of alimony pendente lite was a matter confided to his discretion. In this he was mistaken. Whether the matter set forth is sufficient to entitle the petitioner to a decree for alimony, assuming it to be true, is a question of law; and the discretion confided to the court below is in regard to what is a reasonable amount for the support and sustenance of the petitioner and her family. The provision of the act, Rev. Code, ch. 39, sec. 15, that upon an appeal "this court shall reexamine only the sufficiency of the petition to entitle the petitioner to relief," treats it as a question of law, and excludes the other from reexamination, treating it as a matter of discretion merely.
To this error we ascribe the doubt of his Honor as to whether an appeal could be granted from an order refusing to allow alimony. His *154
attention was not called to Taylor v. Taylor,
It was contended on the argument that, supposing his Honor had a right to allow the petitioner to appeal, he had no power to do so without requiring security; and much stress was laid on the fact that the 16th section of the Rev. Code, ch. 39, in giving an appeal from the final (219) judgment, has an express provision that the court may grant the appeal without security, whereas the 15th section has no such provision.
The explanation is, that in reference to appeals from interlocutory judgments and decrees, such a provision had been already made by ch. 4, sec. 23, which allows appeals "upon such terms as shall appear to the court just and equitable."
It was then insisted that it appears by the petition that the question of marriage or no marriage is the main issue between the parties, and that alimony can not be allowed until that matter is disposed of. For this Shelford on Divorce, 33 Law Lib., par. (587), 347, was cited; such no doubt is the rule in England, but as is said, Wilson v. Wilson,
But the question is not presented by this case. The petition makes a distinct allegation of the marriage, and puts the gravamen (220) on the allegation that the defendant has repudiated the petitioner, and is not only living in adultery with another woman, but has gone so far as to marry her, and live openly with her as his wife in *155 the city of Wilmington, and that (with a view of putting away the petitioner and getting rid of her as his wife, after living with her in New York, Baltimore and Wilmington openly as such, and recognizing her and their infant child in the relation of husband and father for several years), he acted towards her in a brutal and harsh manner, and actually committed upon her a dangerous assault with a knife, so that she had to seek protection of her person and life by taking out a peace warrant against him, until she was driven to desperation, and was forced to agree to accept of an allowance of $10 a month and take their child and go back to the city of New York, sometime after which he married Miss Catherine Joiner, and is openly living with her as his wife!
For the purpose of this motion for alimony pendente lite, we are confined to the allegations of the petition, and we are to take them as true; so there is no issue as to the fact of marriage or no marriage, and "the matter set forth is not only sufficient to entitle the petitioner to a decree for alimony," but the case discovers a degree of hardened villainy seldom met with in the annals of crime.
When the defendant has an opportunity of being heard, we presume he will deny the fact of marriage; and the trial will decide either that the petitioner has committed perjury in regard to matters about which it will be easy to convict her, or else that she is an injured and persecuted woman.
It was further insisted that the delay for seven years after the defendant married Catherine Joiner and lived with her openly as his wife, is a bar to this application, in the absence of any allegations to account for it; and Whittington v. Whittington,
The draftsman of this petition seems not to have been aware of the necessity of accounting for the delay, so as to rebut the presumption of connivance; but we think the petition, although in a very disconnected and inartificial manner, discloses facts which are so far sufficient to account for the delay as to rebut the presumption of connivance. After the petitioner went back to New York, she could not claim this State as the place of her residence, and, in order to maintain a petition for a divorce, it was necessary for her to come back and live here three years. Schonwaldv. Schonwald,
This petition is filed in 1857, and sets out that the defendant commenced living in adultery with Catherine Joiner seven years before that date; so her residence in New York accounts for three years of the time, and the statute required a delay of six months, which makes half of the time, supposing that she came on here to live soon after she heard of her husband's second marriage; but besides she sues in formapauperis, and swears that she has no means of support for herself and child, and the court is obliged to take notice of the fact that it is very difficult for one so poor to institute and carry on a proceeding of this kind without great delay. Witness this case! commenced in 1857; the order setting it for hearing set aside in 1867; and the interlocutory decree refusing to allow alimony, sent to this court by leave of the judge to appeal without security, and then note the difference (222) between a husband and a wife! What motive had she to connive at her husband's unfaithfulness? The delay must have been on account of her inability to sue.
There is error; decretal order reversed; and ordered that the petitioner be allowed alimony pendente lite of such reasonable amount as may in the discretion of the court below seem just, under all the circumstances of the case.
PER CURIAM. Order accordingly.
Cited: Pain v. Pain,