Opinion
03-26-1889
PULLEN v. PULLEN.
Stockton & Johnson, for complainant. W. D. Holt and G. O. Vanderbilt, for defendant.
On petition for alimony pendente lite.
Stockton & Johnson, for complainant. W. D. Holt and G. O. Vanderbilt, for defendant.
BIRD, v. C. This application comes after answer filed. The defendant resists the payment of alimony, and says that his reason therefor is that the petitioner has been guilty of adultery, both before and since the commencement of the suit. He has served copies of affidavits, which he offers to read in support of his defense. The reading of these affidavits is objected to. One is objected to because it was sworn to before the solicitor in the cause. This objection I regard as fatal to the affidavit so made. The reading of the other affidavits is objected to because they are only offered to prove that the petitioner was herself guilty of adultery, and that they cannot be now read or offered for any such purpose, since no defense of the kind was set up in the answer. It is claimed that it was the duty of the defendant, did he intend, in any event, to avail himself of any such defense, to have averred it in his answer; for if proof thereof be admissible for any purpose, and it be offered and received, it, of itself, must inevitably be a bar to success on the part of the petitioner; for the court, on its own motion, would refuse its aid to a wife who was asking relief, should any such fact appear in the cause, even though not specially pleaded. I think this must be so. I pursued this rule in Lynch v. Lynch. A court of equity cannot be expected to help the impure. Hence it seems to me that if the defendant intended to make any use of this alleged crime he should have set it up in his answer. But the reason offered by counsel for this omission is of a character to deserve consideration. They say that the defendant rejected the thought of making any such resistance to his wife's suit for divorce on the ground of adulterybecause of his tender regard for his children; not wishing to do anything that would cause them suffering, or deprive them of a good name, and believing that he would be abundantly able to sustain his defense by showing his innocency of every charge. This is a happy thought, and calls forth the most generous commendation. And the court might be constrained to give ear to it were this the first presentation of the default of the wife and mother. But in truth there are four facts in the case which seem to be an answer to this excuse: (1) That the fact that he offered to prove, during the hearing, that one of the children to which his wife gave birth was illegitimate, and most earnestly urged his right to make such proof; (2) he indirectly charged her with the crime of adultery, when on the witness stand, by saying that he believed she loved one Phillips more than she did him, which, with the other statements, show that he so intended to insinuate; (3) he introduces for the purpose of this motion an affidavit showing that he had commenced another suit against this same Phillips for criminal conversation with his wife, in which he recovered large damages; and this suit against Phillips was begun in August, 1885, and the petition for divorce was filed in September following; and (4) after considerable evidence had been offered in this cause, he presented a petition, and asked leave of the court to further answer by way of recrimination, and to show that his wife had been guilty of adultery. Now, I do not thus present these facts for the purpose of making any comment upon them whatever, at this time; I simply conclude that he ought not to be permitted to spread them on the record now in answer to an application for alimony, during the suit. It seems to me that a party ought not to be permitted to present any defense to a petition for alimony after answer tiled which is not set up in the answer, but which, if set up and established, would be a bar to the original proceeding. But what of the charge that the wife is now living in adultery? The affidavits on this point are so indefinite as to render them unavailing were they to be received in evidence or allowed to be read. But since it appears, as above stated, that the husband, long after the discovery of the facts which led him to suspect his wife's infidelity, filed his petition for leave to put in his recriminatory answer, charging infidelity, and then, after some discussion and delay, withdrew it, he ought not now to stand on this ground. I conclude that in such case, when it is said that new matter has arisen since answer filed, which, if pleaded and proved, would be a defense to the suit, and if it be not pleaded, and no sufficient excuse be given therefor, or if an offer be made to plead it, and such offer be abandoned, the court ought not to allow such new matter to be offered to bar alimony pendente lite. The motion to suppress will prevail, with costs.