Lotz v. Lotz

The opinion of the court was delivered by

Thompson, J.

This is an appeal from an order of the Court of Chancery, entered November 35th, 1941, dismissing the petition of the appellant to vacate and reopen a Anal decree after remittitur entered July 7th, 1941, and denying all other relief prayed for in the petition.

The following is a brief history of the litigation that preceded the filing of the petition dismissed as above stated: On July 29th, 1938, the appellant filed a bill for separate maintenance against the respondent, to which bill the respondent filed an answer and counter-claim charging the appellant with adultery and praying for an absolute divorce on that ground. The matter came to final hearing before the advisory master, who advised a decree dismissing the bill for separate maintenance and granting the defendant-respondent a divorce on his counter-claim. Prom the decree so entered an appeal was taken to this court on July 1st, 1939. On April 25th, 1941, this court in an opinion delivered by Mr. Justice Perskie reversed the decree, the opinion, however, dealing chiefly with the matter of the divorce. Following the decision of this court a decree of reversal was filed on May 27th, 1941, in which it was provided that the court “having duly considered the question brought here by this appeal, * * * so much of the decree nisi of the Chancellor, made on the 20th day of April, 1939, as decreed that the complainant-appellant, Lillian Lotz, and the defendant-respondent, Leonard C. Lotz, be divorced from the bonds of matrimony for the cause of adultery, as charged in the counter-claim, be and the same hereby is reversed,” &c. And it was further ordered “that the record of the proceedings in this cause be remitted to the Court of Chancery to the end that the respondent’s counter-claim for divorce may be dismissed and that such further proceedings shall be had therein as shall be agreeable to law and the practice of that court.” On July 7th, 1941, a form of final decree on remittitur, consented to by the present appellant’s then solicitor, was entered in the Court of Chancery. By the terms of this decree the decree of the Court of Errors and Appeals was made the decree of the Court of Chancery, and the decree nisi of April 20th, 1939, granting the divorce to the husband on his counter-claim was reversed and set aside and the same dismissed, and “that the said decree in all other respects be and the same is hereby made absolute.” The appellant then petitioned the Court of Chancery to reopen and set aside the final decree entered upon the remittitur to the end that a new final decree be made, conforming with the remittitur and providing specifically “that the said bill for separate maintenance be granted.” The court refused to grant the petition, and it is from the order entered upon such refusal that the present appeal was taken.

'The appellant insists here that the intent and effect of the decision of this court reversing the original decree granting a divorce to the husband and denying separate maintenance to the wife was and is that not only was the divorce to be set aside but that the dismissal of the appellant’s original bill for maintenance should also be set aside and that this court affirmatively decreed that the wife be granted the separate maintenance sought by her. It is said that this was perhaps not made clear in the phrasing of the judgment of this court and in the remittitur and in the final decree of the Court of Chancery entered on the remittitur, or at least that if it was clear in our decree of reversal and in the remittitur, the decree of the Court of Chancery did not follow the remittitur and its final decree was an erroneous judgment because inconsistent with the judgment of this court to the extent of omitting to grant the appellant’s prayer for separate maintenance.

Whatever may be the circumstances in respect to these questions raised on this appeal, we do not find it to be necessary to the appellant’s relief to have a reopening of the decree below, for the reason that after the entry of such decree by the consent of the appellant’s solicitor the appellant instituted a new proceeding and filed a new bill for separate maintenance, which suit is now pending in the Court of Chancery, an answer thereto has been filed, the appellant has obtained, incidental to the new suit, an order for the payment of weekly alimony and thus has elected the method of adjudicating her rights. Her petition to reopen the former proceedings at this juncture comes too late.

The order appealed from will be affirmed.

For affirmance — The Chief-Justice, Paekee, Bodine, Donges, Hehbe, Peeskie, Poetee, Colie, Deae, Wells, Raffeety, Hague, Thompson, JJ. 13.

For reversal — Hone.