Graves v. Graves — 2 Paige Ch. 62

Majority

p. 62

Graves vs. Graves.

Headnote

In a suit against the husband for a divorce, if he suffers the bill to be taken as confessed and a divorce is granted, costs follow of course.

■ The wife is also entitled to alimony if her circumstances render such an allowance either necessary or proper.

The reference to the master , to ascertain the truth of the facts charged in the bill is to satisfy the court, and to prevent collusion between the parties ; and the husband cannot set up any matter, in opposition to the wife’s claim for costs or alimony, which if set up by an answer would have been a sufficient , ground for refusing a divorce. ■ .

Where the wife obtains a divorce upon the ground of adultery, a reasonable counsel fee may be allowed and taxed against the husband.

-March 2d.

The complainant filed a bill in this case to obtain a divorce upon the ground of the adultery of her husband. He suffered the bill to be taken as confessed. On a reference to a master the facts charged in the bill were fully established. Upon the coming in of the master’s report.

J. L. Mason, for the complainant,

moved for a divorce and for costs. He also claimed alimony for the complainant, and applied for an allowance, to discharge her reasonable counsel fees and for the support and maintenance of the children of the marriage.

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W. Talmage, for the defendant,

admitted that the complainant was entitled to a decree for a divorce1; but he contended that there was not sufficient evidence in the case to entitle her to costs, or to an allowance for alimony.

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

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he also report what sums the defendant should pay to the complainant for their maintenance, and when and in what manner. And the master must also ascertain and report whether any and what allowance should be made to the complainant for her own support, and when and how the same ought to be payable; and what security should be given by the defendant for the payment of such sums as shall be fixed by the master for the maintenance of the children, or for the support of the complainant. And all further questions and directions are to be reserved until the coming in of that report.