ALIMONY PENDENTE LITE IN ANNULMENT AND DIVORCE CASES WHEREIN THE WIFE IS THE DEFENDANT'

BY ROBERT N. GOLDING2

Cases wherein the wife is the defendant must be sharply distinguished from those in which the wife is the complainant, because the problem before the court is entirely different in the two classes of cases. In divorce cases, when the wife seeks relief, the court must balance the possibility of a well-founded against that of an unfounded suit and so will require some evidence of good faith, or a possibility of success, lest an easy procedure

"promote unfounded and vexatious suits against the husband, exasperate small differences

In the event that the husband defends upon the affirmative ground that no marriage exists," an additional element is introduced and the court has now

"on the one hand, to guard against giving encouragement to a mere adventuress in seeking to levy tribute upon a defendant with whom she has had meretricious intercourse; and on the other, to guard against disabling a wife from vindicating her right to support at the hands of her husband, because he makes a preliminary denial of the marriage."

Where annulment proceedings have been instituted by the husband, the marriage, whether ceremonial or common law, must always be admitted, but other facts, such as a prior husband living and undivorced, are alleged to show its invalidity. (No complainant could file a bill denying that he had ever married the defendant, and at the same time ask the court to set aside the marriage into which he has just denied having entered.) The fear of an adventuress levying tribute, therefore, automatically disappears as a result of the admission of the marriage and cohabitation as man and wife. The two evils against which the court, in these cases, must guard are: first, depriving a de jure wife of her right to support and her

1. An appendix contains an annotated outline of this subject.

2. Of the Chicago Bar.

3. Domb v. Domb (App. Div.) 186 N. Y. S. 306.

4. McGee v. McGee 10 Ga. 477.

5. Crymble v. Crymble 50 Ill. App. 544.

6. Walker v. Walker 10 Ont. Pr. 633.

right to establish the validity of the marriage, and, second, granting support to one who is not a wife. If the wife admits the facts set forth by the husband, the controversy is at an end-she has admitted that she is not a de jure wife and may now be awarded alimony only by virtue of a statute to that effect. If, on the other hand, the wife denies the existence of the facts alleged by the husband, the rule is quite clear that she is entitled to alimony pendente lite if she defends in good faith.10 Difficulty is encountered so soon as a reason is attempted to be assigned for the existence of the rule. It is generally stated that the marriage being admitted, its validity is presumed, or, in other words, that the burden of proof is upon the husband. Other cases advance, as the reason for the rule, what amounts to fundamental principles of fair-play—

"Let the husband and wife stand equal before the law. Give her the same facilities in the 'domestic war' that he has."12

The reason predicated upon the burden of proof serves well enough in those cases wherein the wife joins issue by her answer; for instance, where the husband, having admitted that he married the defendant in 1906, asserts that at that time the wife had a prior husband living and undivorced, and the wife answers that her first husband died in 1904 and so was not living in 1906. But assume that the wife pleads in confession and avoidance, admits that in 1887 she and one Ridgeway submitted themselves to a ceremonial marriage and that Ridgeway was alive when she married the complainant, but, the answer continues, when Ridgeway attempted to marry her, he had a lawful wife living and undivorced and therefore her marriage to Ridgeway was a nullity and no bar to her subsequent marriage to the complainant.13 The husband has satisfied the burden upon him by establishing the admitted fact which invalidates the marriage. The presumption of validity may no longer be indulged in, for this is merely asserting in other words that the burden of proof is upon the husband," which is no longer the fact. The validity of the marriage now depends upon the success of the wife in establishing the invalidity of her marriage to Ridgeway.

7. State ex rel. Wooten v. District Court (Mont.) 189 Pac. 233.

8. Arado v. Arado 281 Ill. 123.

9. Stapleton v. Stapleton (Conn.) 58 Atl. 233.

10. See appendix Sec. 5.

11. Bird v. Bird 1 Lee Eccl. 209.

12. McGee v. McGee 10 Ga. 477. See also Lee v. Lee (Ga.) 115 S. E. 493. 13. Jones v. Jones 168 Ala. 183, 53 So. 261; 172 Ala. 186, 55 So. 491;

Freeman v. Freeman 49 N. J. Eq. 102, 23 Atl. 113.

14. Thayer "Presumptions and the Law of Evidence" Harv. L. R. III 165; Wigmore "Evidence" (2nd ed.) V § 2511.

Logically, she now occupies a position similar to that of a wife who is the complainant and who must prove facts from which the marital relationship may be presumed before she is entitled to an award of alimony pendente lite. It is important to note that the court does not demand that the complainant wife establish the marriage, but only that she establish facts giving rise to an inference of marriage."

15

The danger of the burden of proof rule is disclosed by the Robinson case. In that case, the wife sued for divorce and the husband answered by setting up the fact that at the time of the marriage the wife had a prior undivorced husband living. The wife replied that she had sued her first husband for divorce and honestly believed that the decree had been granted before her marriage to Robinson, though admitting that it was not granted until several weeks later. The point at issue was the wife's belief as to the decree, because if she honestly believed that such a decree had been entered, her marriage to Robinson became valid when her first marriage was dissolved. Vice-Chancellor Leaming held that the burden of establishing the fact of her belief was upon her and denied the petition for alimony pendente lite on her failure to produce evidence in addition to her unsupported word.16 Upon final hearing, however, the wife succeeded in producing the necessary evidence, established the validity of the marriage and obtained the divorce."

17

The vice of the burden of proof rule lies in its unfairness to the wife and in its entire disregard of the interest of society in the status established by marriage. The interest of society has not been diminished in the least because technical rules of pleading have increased the burden already upon the defendant wife by placing upon her the additional burden of establishing the existence of an antecedent collateral fact. And why should those same technicalities force her to exist upon the credit which is based upon the common law liability of the husband, a credit which is seriously impaired, if not entirely destroyed, by the denial of the marital relationship?18 The interest of society and the rights of the de jure wife can only be protected by the adoption of the rule of thumb that the admission of a marriage warrants the awarding of alimony. If the rule sometimes results in an award of alimony to one who is not a de jure

15. Brinkley v. Brinkley 50 N. Y. 184; Hite v. Hite 6 Cal. Unrep. 216, 55 Pac. 900.

16. 82 N. J. Eq. 466, 88 Atl. 951.

17. 83 N. J. Eq. 150, 90 Atl. 311; 84 N. J. Eq. 201, 93 Atl 699.

18. McGee v. McGee 10 Ga. 477.

wife, one's conscience need not be unduly shocked, for such a situation in annulment cases seems generally to result from ignorance of fact or law on the part of one or both of the parties, as in the Robinson case, supra, and the relation between the man and woman can hardly be called meretricious.

The defense of the wife must, however, be made in good faith. As this question is exactly the same as in divorce cases, it will be considered later. It should be clearly understood, however, that the good faith referred to is her good faith in making the defense, not her good faith in contracting the marriage, for the later is often immaterial.19

The same general principles apply to divorce proceedings. Just as in annulment proceedings the validity of the marriage constitutes the merits of the controversy, so in divorce proceedings the wife's alleged acts of misconduct constitute the merits. The rule is well established that the court may not hear the merits upon motion for alimony pendente lite.20 The reason for the rule is stated in the same words as are advanced in annulment cases the wife is presumed to be innocent;21 or, in other words, the burden of proof is upon the husband. Much the same comment may be made upon the burden of proof reason as has heretofore been made in respect to annulment cases.

No one will contest the fairness of the general statement that if the wife be innocent of the charges of misconduct, she is entitled to alimony pendente lite, while if she be guilty, she is not so entitled. Like all general expressions, however, this statement has no vitality until it is applied to the facts, under the circumstances of the case. The facts, of course, vary with each case, but the circumstances are almost always the same. The husband has carried on his investigations, has marshalled his proof, has selected the issues and presented those facts which are most favorable to him, while the wife comes into court without having had time to prepare her case and, more often than not, without funds so to do. It may be assumed that the guilty wife will deny the charges under oath, but that assumption merely presents the problem more concretely. How, in the absence of a full trial, can it be decided whether she is a guilty wife or the innocent victim of suspicious circumstances? To take the testimony offered by the husband at its face value is to assume not only the

19. Arado v. Arado 281 Ill. 123; Raleigh v. Wells 29 Utah 217, 81 Pac. 908; Cent. L. J. II 200 (case of the twentieth wife of Brigham Young). 20. See appendix Sec. 7.

21. Johnson v. Johnson 4 N. J. L. J. 241.

truthfulness, but also the required accuracy of perception, of "stepladder" and "key-hole" witnesses; to require proof at this time from the wife is often to demand the impossible. It must be borne in mind that, just as the wife may swear falsely in order to gain support, the husband may swear falsely or draw unwarranted inferences from circumstances in order to avoid the liability placed upon him by the law.22

To obtain the benefit of the rules excluding the merits of the controversy from consideration, the wife must defend in good faith. The important question is, when can it be said that she is so defending?

In annulment cases, good faith is shown by allegations under oath either controverting the facts which would destroy the marriage or setting up other facts which, if true, will sustain it.23 In divorce cases, it is generally stated that good faith is shown by sworn denials of the acts of misconduct.24

On every hearing for alimony pendente lite, an attempt is made to insinuate into the proceeding a complete disclosure of the alleged lack of merits of the wife's defense. This is generally based upon the broad ground that the chancellor should, on general principles of equity, refuse an allowance of alimony to the guilty wife. In the Joyce case,25 learned counsel for the complainant and respondent to the petition for alimony made such an attempt on the hearing of the defendant's petition. The reason given for requesting the chancellor to consider the submitted acts of misconduct at that time was, that they disclosed the lack of good faith of the wife in defending. The weakness of the reason, however, was its assumption of the very point in issue, whether or not there were acts of misconduct. In the face of the rule which precludes the reception of proof when the defendant denies under oath, the acts of misconduct were not and could not be proven; and, of course, a controverted fact, until decided, cannot be used as the basis for an inference.

A qualification of the general rule might be attempted as follows: In addition to denying the alleged act of misconduct, the wife must submit to the chancellor, to substantiate her denial, such proof as she may, under the circumstances of the case, have available or be able to obtain. If it be assumed that the bill of complaint, filed in Illinois, charges an act of infidelity in Chicago, with a resident

22. Frith v. Frith 18 Ga. 273.

23. See appendix Secs. 3, 4.

24. See appendix Secs. 7, 8, and Stillman v. Stillman (App. Div.) 192 N. Y. S. 360.

25. Superior Court of Cook County, No. 364,899.