Newbold v. Newbold

¹⁷¹ Constable, J., delivered the opinion of the Court. The appellant herein in March, 1915, 'filed a hill for an absolute divorce on the ground of abandonment against, the ap-pellee herein. On Jnne 21, 1915, the appellee- filed her answer thereto denying the allegations, of abandonment and on the same day filed a, crossrbill for absolute divorce on the ground of adultery. The appellant did not prosecute his bill and it was dismissed under date of July 19, 1915; neither did the appellant answer fhe cross-bill of his wife but, it was prosecuted by the appellee and decree entered on the 14th day of August, 1915, divorcing her from the appellant, a, vinculo matrimonii and awarding her the guardianship- and custody of their minor child. “And it is further adjudged, ordered and decreed, that the said complainant, Adelaide Passano Newbold, is entitled to receive by way of alimony, out of the said Eugene S. Newbold’s estate, and the said Eugene S. Newbold is hereby ordered to pay unto Adelaide Passano Newbold, the complainant in the cross-bill, a weekly allowance of Eighty Dollars ($80.00) to be computed from this 14th day of August, 1915, and payable thereafter on each and every Saturday, during the lifetime of the said Adelaide Passano Newbold.” On October 16, 1917, the appellant filed a petition alleging that the appellee had remarried and become the wife of a certain John B. McCormick and alleging that the said John B. McCormick had become liable for the support and maintenance of the said Adelaide Passano- McCormick and that the petitioner should be relieved from all obligation to maintain or support her, or to make -any further payments of alimony for her support and maintenance; and further prayed by amendment that the Court fix a proper allowance for the support and maintenance of the infant child of the parties.

The appellee filed a demurrer to the petition but the Court overruled the demurrer and rescinded the decree as to alimony. T^ater the order of December 3, 1917, was rescinded and an order overruling the demurrer with leave to answer was filed. ¹⁷² The ease was then, set down by the appellant to be heard on petition and answer. By doing this the appellant admitted the truth of all matters stated in the answer which were susceptible of proof by legitimate evidence. It therefore became the evidence of the case.

Miller’s Equity, sections 255 and 256. „ The answer was quite a long one and exceptions were filed to six of its paragraphs, five of which were stricken out by the Court and exceptions to the six overruled. The paragraph left in dealt with the financial standing of the appellant. We will here reproduce some of the paragraphs that remained in the answer after the ruling on exceptions: “Seventh—That in accordance with an agreement between counsel for the respective parties made and concluded before the taking of testimony, evidence was not taken as to the proper amount or allowance- to this Respondent of the estate of the said Eugene S. Rewbold, or the amount he should pay as alimony to this Respondent, nor the amount properly payable by the said Eugene S. Rewbold for the support, maintenance and education of the child of this Respondent and Eugene S. Rewbold, as it was agreed that the allowance of eighty dollars ($80.00) per week, To be computed from this 14th day of August, 1915, and payable thereafter, on each and every Saturday during the lifetime of the said Adelaide Passano Rewbold,’ was a proper and reasonable allowance out of the estate and earnings of the said Eugene S. Rewbold, as compensation to his wife, and as maintenance for her and their son, John Passano Rewbold. It then being agreed that when the said John°Passano Rewbold should reach the age that he should be sent to school or college that the said Eugene S. Rewbold would then provide and pay to 'this Respondent any additional sum which would be reasonably appropriate for such schooling or education. “That when, in accordance with the Rules of Court, it was appropriate to submit this cause for decree, the solicitors for Eugene S. Rewbold, pursuant to agreement and appointment with this Respondent’s solicitor, ¹⁷³ submitted tbe cause to the Honorable Frank I. Duncan for decree, on the 14th day of August, 1915, at which time the decree, prepared in sq far as the amount of alimony and the payment thereof in accordance with the agreement between the parties, was presented. “That at the submission for decree the said Eugene S. ISTewbold was represented by his brother, David M. Newbold, Jr., Esq., solicitor, who then confirmed the agreement as to alimony by stating to the Court that the provision as to alimony was satisfactory to the said Eugene S. ISTewbold and his solicitors. “Tenth—This Respondent, further answering the Petition of Eugene S. ISTewbold, says that while she was granted the guardianship and custody of John Passano ISTewbold, there was no provision in the decree of divorce directing payment by the said Eugene S. ISTewbold for the support of his son, as it was agreed between the parties before the taking of testimony that the payment of the agreed sum of eighty dollars ($80.00) per