Opinion
Argued February 10th, 1938.
Decided May 11th, 1938.
1. Complainant initiated a suit for separate maintenance and obtained an order, based upon a petition filed in the cause, for alimony pendente lite and preliminary counsel fee. It is not disputed that from the time of the separation of the parties, defendant tendered complainant the sum of $75 per week and an additional sum of $200 per month for her maintenance and support. There is nothing to show that defendant intends to discontinue the tender or payment, or that such payments are inadequate for complainant's support. Complainant has failed to show any refusal or neglect to support on the part of the defendant. This failure is fatal to her application for alimony pendente lite, and the order of the court of chancery should, therefore, be reversed in this regard.
2. Upon an application for alimony pendente lite in a suit for separate maintenance, the court should consider the merits thereof as disclosed by the pleadings and affidavits. When the proofs make the complainant's right a doubtful one, the application should be denied.
3. In order to prevail in a suit for separate maintenance, a wife must show that her husband has, without justifiable cause, abandoned her or separated himself from her, and that he has refused or neglected to maintain and provide for her. Failure to prove either of these two elements is fatal to her cause. This rule is as applicable to preliminary applications as to final hearing.
On appeal from an order pendente lite by the court of chancery.
Messrs. Martin Reiley, for the appellant.
Messrs. Scammell, Knight Reese, for the respondent.
This is an appeal from an order of the court of chancery allowing to the complainant alimony pendente lite and preliminary counsel fee. The complainant has initiated a suit for separate maintenance, and the order appealed from was based upon a petition filed in the cause.
It is well settled that upon an application of this nature the complainant's petition may not be granted as a matter of course, but the court should consider the merits thereof as disclosed by the pleadings and affidavits. When the proofs before the court make the complainant's right a doubtful one, the application should be denied. Suydam v. Suydam, 79 N.J. Eq. 144.
In order to prevail in a suit for separate maintenance a wife must show two elements: first, that the husband has, without any justifiable cause, abandoned her or separated himself from her; second, that he has refused or neglected to maintain and provide for her. Failure to prove either of these elements is fatal to the cause. Dinnebeil v. Dinnebeil, 109 N.J. Eq. 594; Fallon v. Fallon, 111 N.J. Eq. 512. It naturally follows that this rule would be as applicable to preliminary applications as to final hearing.
In the present case it is not disputed that from the time of the separation of the parties the defendant has tendered to the complainant the sum of $75 per week and an additional sum of $200 per month for her maintenance and support. In fact, the order from which this appeal is taken recites such tender and merely provides that the payments shall be continued. There is nothing in the case that indicates any intention upon the part of the defendant to discontinue the tender or payment, or that shows such payments to be inadequate for the complainant's support. On the other hand, it does appear that the defendant has considerable property within this state which might be sequestered for enforcement of further orders of the court.
The complainant has failed to show any refusal or neglect to support on the part of the defendant. This failure is fatal to her application, and makes unnecessary any consideration of the merits of the case with relation to the abandonment or separation.
The order of the court of chancery, so far as it allows alimony pendente lite, is reversed, without prejudice to a further application by the complainant if warranted by a change of circumstances. The allowance of preliminary counsel fee is reduced from $5,000 to $1,000, and the costs shall abide the result of final hearing.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 13.