Tayman v. Tayman

| New York Court of Chancery | Mar 15, 1851

The Chancellor :

There can be no doubt of the power of this court, pending a bill for a divorce by a wife, to compel the husband to pay her a reasonable sum as alimony, and also, to furnish her with the means of defraying the expenses of the suit. The case of Ricketts vs. Ricketts, 4 Gill, 105, and several cases heretofore decided by this court, and especially the case of Daiger vs. Daiger, recently decided, are conclusive upon the question. And it must also be considered as settled, that upon an application by the wife, for temporary alimony, and for money to carry on the suit, the merits will not be looked into, the allowance being made almost, if not entirely, as a matter of course. Such 'was the conclusion to which I came in the case of Daiger vs. Daiger, after an examination of numerous cases in this country and in England.

But, in all these cases, it will be found, the application was made by the wife who is living apart from her husband, and who is without the means of carrying on the suit. If she be living with her husband, an allowance of alimony, pendente lite, would be unnecessary, and improper, but it does not therefore follow, that under such circumstances, upon an application by her, the husband would not be made to supply her with money to fee counsel, and defray the expense of the suit.

The application here, however, is not by her, but by her counsel, in his own name. No precedent can be found for such a proceeding, so far as I am aware, and I am not disposed to make one, unless the necessity for it was extremely urgent.

An application by Mrs. Tayman, the complainant, asking for means to carry on the suit, and to compensate her counsel for his professional services, could not well be refused, and, perhaps, the fund in court, under the circumstances, would be most convenient and proper to use for the purpose. A reasonable proportion of that fund might be so applied, reserving the residue for such further order as might be passed in the further progress of the cause. I think, however, the present application cannot be granted, and refuse it.

[On the 17th of January, 1851, the complainant filed her petition to the same purport as that filed by her solicitor, and on the same day the Chancellor passed thereon the following order :]

The within petition is submitted by agreement of parties, under the order of the 17th of January last, and agreeably to the views expressed in the opinion of the court of the 16th of January last, it is ordered, that out of the sum deposited in court, under the order of the 16th of November, 1850, there be paid to the petitioner the sum of two hundred dollars to enable her to carry on the suit, and this court hereby reserves the power to pass such other or further order in the premises, as the exigencies of the case may hereafter, and from time to time, require.

[The purport and effect of the testimony taken under the commission, is sufficiently stated in the following opinion, delivered at the hearing of the cause upon its merits, on the 22d of March, 1851.]

The Chancellor:

The evidence in this cause has been very fully discussed by the counsel of the parties in their written arguments; but I do not deem it necessary to enter into a detailed examination of it. Much time and space would be consumed in such an investigation, and as each case, depending upon facts, must be governed by its own peculiar circumstances, and no general principles could be deduced from a statement of those portions of the evidence upon which my judgment in this case is founded, I shall refrain from doing more than simply to announce the conclusion to which I have come.

The question, and the only question, is, whether- the complainant has succeeded in bringing her case within the 3d section of the act of 1841, ch. 262, which specifies the causes for which divorces, a mensa et thoro, may be decreed. The first of these causes is “cruelty of treatment,” and that being the ground relied upon here, the counsel on both sides have examined the evidence, to sustain and repel the charge, very elaborately. I consider it sufficient to say, that upon a very careful reading of the pleadings and proofs, and the arguments of the solicitors of the parties, and upon full and attentive consideration of every circumstance, my judgment is, that a case of “cruelty of treatment” as those terms in the act of assembly are to be understood, has been made out, and, consequently, that the complainant is entitled to relief. Giving to those words, the meaning which has been attributed to them in the ecclesiastical courts, or to the equivalent language of the statute of New York, by an eminent judge of that state, the result is as I have stated it.

The conduct of the husband here has been, not only such as to furnish well grounded apprehensions of bodily hurt, but has been brutal, and inhuman in the extreme. The marks of violence upon the person of the wife — the blood streaming from her head, where the hair had been torn out — her flying, terror stricken, from the house, by night and by day — his chasing her with a gun — pointing it at her — declaring upon one occasion, he would blow her brains out, (all of which appears by evidence free from exception) bring this case strictly within the rule, and shows, that this unfortunate woman, however imprudent she may have been, in forming such a connection, has already suffered much more than could, by any one, be deemed necessary to expiate her offence. Imprudent as she may have been, giving to that word the most unfavorable interpretation of which it is susceptible, it by no means follows, that she shall be exposed to perpetual peril of bodily hurt, and to a course of treatment, which must infallibly shorten her life, as it has already impaired her health.

I shall, therefore, pass a decree, divorcing these parties, a mensa et thoro, and will restore to the complainant the property which she had when she married, or such portions thereof, as may now remain undisposed of. But, in consideration of this restoration to the wife of her own property, and the narrow circumstances of the defendant, there will be no award of alimony.

[The decree was then passed as follows:]

This cause standing ready for hearing, and being submitted upon arguments, in writing, by the solicitors of the parties, the proceedings were read and duly considered. And it appearing from the pleadings and proofs that the defendant has been guilty of “cruelty of treatment” of the plaintiff, so as to render it unsafe, and improper for her to cohabit with him, or to be under his dominion and control. It is, therefore, this 24th day of March, in the year 1851, by John Johnson, Chancellor, and by the authority of this court, adjudged, ordered and decreed, that the said plaintiff and defendant, be, and they are hereby, divorced, a mensa et thoro. And it is hereby declared to be the duty of each of them to live chastely during their separation, and that it will be criminal, and an act void in law, for either of them, during the life of the other, to contract matrimony with any other person. And it is further adjudged, ordered and decreed, by the authority aforesaid, in pursuance of the 3d section of the act of 1841, ch. 262, that there be awarded to the said plaintiff, and that the defendant restore and deliver up, to her, the real and personal estate of which she was the owner, or to which she had title at the time of her marriage with the said defendant, and of which the said defendant is now in possession, or which may be under his control, to be held and enjoyed by her, separately, and in the same right, and by the same title as said property was held and enjoyed by her prior to her intermarriage with the said defendant. And it is further adjudged, ordered and decreed, that the money deposited in court, to the credit of this cause, be paid to the said plaintiff, to be held and received by her, as she would have held, received and enjoyed the same, if she had been sole and unmarried at the time the said money was recovered or paid, as stated in the proceedings in this cause. And it is further adjudged, ordered and decreed, that the defendant pay to the plaintiff the costs of this suit, to be taxed by the Register, but for the reasons stated the prayer for alimony is overruled.

Brice T. B. Worthington for Complainant. A. Randall for Defendant.