Kendall vs. Kendall

Kendall vs. Kendall. In a suit for a divorce, on the ground of adultery, if the wife obtains a decree for Costs against her husband, she is not entitled to collect the whole amount of her taxable costs, if a sum has already been advanced to her, or to her solicitor, or next friend, on account of such costs, pendente lite. But the allowance to her for costs and expenses of the suit is not confined to the mere taxable costs as between party and party. In litigated cases, where the wife is necessarily subjected to extra expenses and counsel fees, in addition to the taxable Costs as between party and party,'the whole amount which has been advanced to her, pendente lite, for costs and expenses, should not be deducted from the ordiary bill of costs as between party and party, to which she is entitled under the decree. And the husband should be allowed only for the balance of his advances, after deducting therefrom the necessary expenditures of the wife for counsel fees, &c., which are not'included in the ordinary taxed bill. The decree in such cases should direct the taxing officer, upon the taxation of the costs of the wife, under the decree, to allow to the husband the amount of his advances, pendente lite, in diminution of the taxable costs; after deducting from such advances the reasonable expenses and counsel fees which have been paid by the wife, and which are not included in the ordinary taxed bill. Or, the court itself should determine whether any, and if any, what allowances should be made for extra expenses and counsel fees, beyond tire taxable costs; and should direct that the residue of the advances, which have been made by the husband, be deducted, by the taxing officer, upon the taxation of the costs under the decree. In ordinary cases, where the husband is the defendant in a suit for a divorce, and admits the allegations in the bill, either by his answer or by allowing the bill to be taken as confessed against him, the ordinary taxable costs are sufficient to cover all the reasonable expenses of the suit, except the extra expense which may be necessary to procure the attendance of witnesses before the master, in addition to the allowance made by law to the witnesses. And that is all that should be allowed in such cases; unless it is made to appear that something special had occurred in the progress of the suit to render the employment of co tnsel, other than the solicitor in the cause, necessary. This was an appeal by the complainant from an order of the vice chancellor of the first circuit. The bill was filed by the wife, against her husband, to obtain a divorce on the ground of adultery. The defendant put in an answer admitting the adultery, and the usual reference was made to a master to take the proof of the complainant’s allegations, and to report his opinion thereon. And upon, the coming in of the report, the usual decree for a divorce was granted, with costs to be paid by the defendant. Pending the suit, an application was made for an allowance for the expenses of the complainant in the prosecution of her suit; and an order for the payment of $100 for that purpose, was made. The defendant paid that sum to the complainant’s solicitors pursuant to the order, previous to the entry of the final decree; but in the taxation of the costs, no credit was given for any part of the sum so advanced. Upon an application, to the vice chancellor, before whom the suit was pending, he directed the whole $100 to be deducted from the complainant’s costs as taxed. And from that decision the complainant appealed. J L. White, for the appellant. T. Warner, for the respondent. [MAJORITY — The Chancellor.] The Chancellor. The statute authorizes the court, in cases of this kind, to require the husband to pay any sums necessary to carry on the suit during its pendency; and the court may also decree costs against either party, and award execution for the same, ¿sc. (2 R. S. 148, § 57.) But it was not the intention of the legislature that the wife should recover the whole amount of taxable costs at the termination of the suit, where a sum had been advanced to her, or to her solicitor, or next friend, on account of such costs, pendente lite. Nor was it intended that the allowance to her for costs and expenses of the suit should be confined to the mere taxable costs, as between party and party. In litigated cases, where the wife is necessarily subjected to extra expenses and counsel fees, in addition to the taxable costs as between party and party, the whole amount, which has been advanced to her, pendente lite, for costs and expenses, should not be deducted from the ordinary bill of costs as between party and party to which she is entitled under the decree. But the husband should only be allowed for the balance of his advances, after deducting therefrom the necessary expenditures of the wife, for counsel fees &c., which are not included in the ordinary taxed bill. The decree in. such cases should, therefore, direct the taxing officer, upon the taxation of the costs of the wife, under the decree, to allow to the husband the amount of his advances, pendente lite, in diminution of the taxable costs; after deducting from such advances such reasonable expenses and counsel fees as have been paid by the wife, and which are not included in the ordinary taxed bill. Or the court itself should determine whether any, and if any, what allowance should be made for extra expenses and counsel fees beyond the taxable costs; and direct the residue of the advances which have been made by the husband to be deducted, by the taxing officer, upon the taxation of costs under the decree. In ordinary cases, where the husband is the defendant, and admits the allegations in the complainant’s bill, either by answer or by allowing it to be taken as confessed against him, the customary taxable costs are sufficient to cover all the usual expenses of the suit, except the extra expense which may be necessary to procure the attendance of witnesses before the master, in addition to the allowance made by law to them. And that is all that should be allowed in such cases, unless it is shown that something special has occurred in the cause to render the employment of counsel, other than the regular solicitor, necessary. In the present case, it appears there was a litigation before the master in relation to alimony, which might require the employment of counsel. But if a proper allegation of faculties was filed with the master, and the answer of the husband taken to the same, as should have been done before proceeding with the reference to ascertain the proper amount of alimony, the whole business of the reference ought to have been concluded in less than six days, instead of being protracted for six months. Under the circumstances of this case, I think the allowance of a counsel fee of $25, in addition to the taxable costs, should have been' allowed to be retained out of the moneys advanced by the husband pendente lite. But the allowance of the whole $100 for that purpose would have been unreasonable and oppressive. The order appealed from must therefore be modified accordingly. And neither party is to have costs as against the other, either on this appeal or upon the original application to the vice chancellor to have the advance of the husband deducted from the taxed bill. Proceedings remitted.