Gerard v. Gerard — 2 Barb. Ch. 73

Majority

p. 73

Gerard vs. Gerard.

Headnote

Where a decree has been taken against a defendant, for want of appearance, after a personal service of the subpoena, the court is authorized to impose such terms as it thinks proper, upon the defendant, as a condition of opening the decree.

Therefore it may require the husband, in a suit against him, by his wife, for a divorce, to give security for the payment of ad interim, alimony to her¡pendente lite, as well as an allowance for the necessary expenses of her suit.

But if the bill is taken as confessed against the defendant as an absentee, without an actual service of the subpoena, the court has no right to require payment, or security for the payment, of any thing beyond the necessary costs and expenses of the suit, as a condition of letting him in to defend j provided he makes his application within the time prescribed by the statute.

The order, directing a reference to a master to inquire and report as to ad interim alimony, during the pendency of a suit for a divorce, should direct that, upon the coming in and confirmation of the master’s report, the husband pay to the wife the sum allowed by the master for alimony, and payable as directed by the report.

Without a previous order of the court, directing a husband to pay the amount to be allowed for alimony, he cannot be brought into contempt for not paying the alimony fixed by the master.

This was an appeal from an order of the vice chancellor of the third circuit. The complainant filed her bill to obtain a divorce, for the alleged adultery of the defendant, and obtained a decree by default. The defendant, who was a resident of New Hampshire at the time of his application, obtained an order opening the decree and the order to take the bill as confessed, and allowing him to put in an answer, denying the adultery, upon payment of all the costs which had then accrued in the suit. And it was referred to a master to report a suitable allowance to the wife for ad interim alimony, and for the expenses of the future litigation. The defendant paid the costs and

p. 74

put in his answer, denying the adultery charged in the hill, and the complainant’s solicitor filed a replication to the answer. Some months afterwards the master made his report. And upon an affidavit that the allowance, reported by the master, had been demanded of the defendant’s solicitor, and had not been paid, and that the defendant was an absentee, the vice chancellor directed the answer of the defendant to be taken off the files, and that the former decree for a divorce should be restored, unless the allowance for alimony and for the expenses of the suit should be paid within a specified time.

E. A. Doolittle, for the appellant.

M. T. Reynolds, for the respondent.

The order appealed from is-erroneous, and must bo reversed. If the decree was taken against the defendant, for want of appearance, after a personal service of the subpoena, the vice chancellor was authorized to impose such terms as he pleased upon the defendant, as a condition of granting him the relief asked-; and might have required him to give security for the payment of ad interim alimony, to the wife, pendente lite, and also for an allowance for the necessary expenses of her suit. But if the bill was taken as confessed against him as an absentee, without an actual service of the subpoena, the court had no right to require payment, or security for the payment, of any thing beyond the necessary costs and expenses of the suit, as a condition of letting him in to defend; provided he made his application within the time prescribed by the statute. (See 2 R. S. 187, §§ 133, 178.)

In this case, however, the defendant obtained an order opening the decree, and allowing him to come in and defend the suit, upon payment of the costs which had then accrued; which Ivas the only condition then required of him. For although the reference, as to ad interim alimony, and an allowance for the expenses of future litigation, was directed by the same order, the payment of the amount which should be allowed, by

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the master, was not made a condition of opening- the decree and permitting' the defendant to answer the complainant’s bill. The defendant, by the payment of the costs which had then accrued, and the putting in of his answer denying the charge of adultery, had therefore acquired the right to have the question of his guilt or innocence tried by a jury, before a divorce could be granted ;■ even if he was subsequently guilty of a contempt, for fieglecting to pay the amount allowed, by the master, for alimony and for the expenses of the suit.

It is even doubtful whether the defendant was in contempt,in this case, for not paying the allowance for alimony, &c. specified in the master’s report. For it does not appear, by the papers on this appeal, that there had been any order made by the vice chancellor, for the payment of the sum which should be allowed by the master. In' drawing the order for such a reference, the solicitor for the wife should make it a part of the order, that upon the coming in and confirmation of the master’s report, the husband pay to her the amount of her ad interim alimony, and the allowance for the prosecution or defence of the suit, at the times and in the manner specified by the master in his report; so that after the report has been confirmed, by the usual order nisi in. the master’s office, the husband will be" bound to pay such allowance, without the expense and delay of a further order directing him to pay the amount fixed by the master.

Order of the vice chancellor reversed.