Worden v. Worden

3 Edw. Ch. 387 | New York Court of Chancery | 1840

The Vice-Chancellor

:—If the answer be true, the complainant has no just cause of complaint against her husband.

The letters, copies of which are subjoined to the answer, written only four or five months before the filing of the bill, are strongly corroborative of the answer. They speak a language very different from that of complaint for abusive and cruel and inhuman treatment. It is not a matter of course in every case, whatever may be the complexion of it, to make an order for temporary alimony and for an advance of money to enable the wife to prosecute the suit; and this would seem to be a case in which, at present, no such order ought to be made. If her parents and grandparents have advised her to take this proceeding against her husband and are willing to afford her protection and support pending the litigation, they should be willing to do so without calling on her husband to pay board, at least until some testimony can be taken and laid before the court to show that she is an abused and injured wife. So, with regard to an advance for her solicitor and counsel. Her next friend, who is responsible and has been willing to embark in the enterprize, must be considered as willing to defray the expense; at least, until it shall appear that she has a meritorious cause of complaint.

Besides, the master’s report does not show, very clearly and satisfactorily, what are the circumstances of the defendant as to means or the ability he has to pay the amount reported for alimony and fee to counsel. These sums should be regulated, in some measure, by his ability and means.

Upon the whole, then, the exceptions to the report, in respect to those allowances, must, I think, be allowed ; reserving to the complainant the right to apply again to the court, upon additional facts to be presented. And, with regard to the custody of the child, no order, at present, seems to be necessary. If the wife should be denied access to it or the privilege of visiting it, wherever it may be, she can then apply for the interference of the court.

Order : allowing all the exceptions to the report. Costs to abide the event of the suit.