Germond vs. Germond, 4 Paige Ch. 643

The Chancellor. No objection is made to that part of the master’s report which fixes the allowance for law expenses ; and the amount thus fixed must be paid to the complainant or her next friend, or the solicitor for the complainant, without delay, that the suit may proceed and be brought to a termination. In disposing of the questions which arise upon these exceptions, I shall endeavor to do so unbiassed by facts and circumstances which came to my knowledge while sitting in another place, and shall decide the exceptions upon the facts, as they appeared before the master on this reference.

The first question that arises is, whether the allowance for temporary alimony should be estimated according to the expense of board and clothing in the city of N. York, where the complainant has resided since her separation from her husband, or according to what her board and clothing could be procured for in a farmer’s family in the country, or in the neighborhood of the defendant. N. York was her paternal home, and the place to which she would naturally go upon being compelled by cruel usage to leave the house of her husband.

And although her surviving parent is now dead, it would be unreasonable to require her to go into the country, or among strangers, to reside pending this litigation ; unless the expense of supporting her at her present residence, among her friends and acquaintances, should be found wholly disproportioned to the property or means of her husband.

The property of the defendant, even at the lowest estimate of his own witnesses, is unquestionably sufficient to support his wife at her present residence in New-York, until the termination of this suit, and to leave a competency for himself, during the litigation and afterwards ; unless the result of the suit should show that the complainant has paramount claims upon such property, for a separate maintenance for life, arising from his misconduct towards her. It does not appear that the defendant has any children, or that there are any other persons who have a natural claim upon him for support.

There is therefore no reason why even temporary alimony should be limited to a certain proportion of his income only, leaving the principal of his property untouched ; as the exhausting of the whole principal, for the support of himself and his wife during their lives, would leave no one destitute, who has any natural claims upon his bounty, at his death. This temporary allowance cannot break in much upon the principal of his property, unless the litigation should be unnecessarily protracted.

But, as a general rule, to guard against any abuse of the privilege of the wife to obtain a temporary support pending a suit for a divorce or separation, and to prevent the bringing of improper suits for the mere purpose of obtaining a support during a protracted litigation, the temporary alimony must be limited to the actual wants of the wife, until the termination of the suit in her favor establishes the fact that she lias been abused and is entitled to a more liberal allowance.

Applying that principle to the present case, I should think the allowance of $25 per month, as fixed by the master, was too large an allowance for temporary alimony, did it not appear, by the testimony of the lady with whom the complainant resides, that the state of her health is such as to incapacitate her from doing any thing towards her own support. That circumstance, which was probably unknown to Curtis, the other witness, prevents me from reducing the allowance to $250 per annum, the lowest sum mentioned by him. I shall therefore leave it as fixed by the master.

The first exception must be overruled ; and so much of the report as relates to the amount of the monthly allowance, and the time from which it should commence, is confirmed. Considering the distance at which the parties reside from each other, and the inconvenience and expense of making so many small payments at such a distance from the residence •of the party who is to pay, I think the master should not have required the payments to be made monthly.

It probably will answer the purposes of the complainant nearly as well to have the payments made quarterly, at the expiration of every three months, and the "trouble and expense to the defendant will be considerably lessened, if he is permitted to make the payments at the end of every three months only. The report must be modified accordingly.

And the defendant must pay to the complainant, or to her next friend, or solicitor, for her benefit, the allowance for the first nine months, commencing in the month of January last, on the 27th of October, 1834, or within 20 days after notice of the order, together with the amount allowed by the master for law expenses, if that has not already been paid. The subsequent payments to be made quarterly, until the further order of the court, during the continuance of the suit.