Opinion
Submitted May 25th, 1945.
Decided September 27th, 1945.
1. The advisory master properly dismissed the petition for annulment, for the proofs did not sustain the allegations of defendant's incurable impotency, premarital determination not to consummate the marriage, or the fraudulent concealment of these matters.
2. The evidence sustains the finding of abandonment of the defendant by the petitioner, and the award of alimony.
3. Counsel fee reduced from $1,500 to $500.
On appeal from a decree advised by Advisory Master Campbell.
Mr. W. Howard Demarest, for the appellant.
Mr. Simon J. Griffinger ( Mr. Jacob L. Newman, of counsel), for the respondent.
Petitioner sued for the annulment of his marriage to defendant. He charged incurable impotency, due to "physical abnormality, chronic illness and inhibitions or fears" arising "in whole or in part" from "psychophysical conditions," and a premarital determination not to consummate the marriage, and the fraudulent concealment of all of the foregoing. Defendant counter-claimed for separate maintenance.
The master, in formal conclusions that have not been reported, found that the proofs did not sustain these allegations, and dismissed the petition; and we concur therein.
As to the counter-claim, the master concluded that petitioner had abandoned defendant without justifiable cause, and had refused and neglected to maintain and provide for her; and he awarded the counter-claimant alimony at the rate of $30 per week and a counsel fee of $1,500. Petitioner contends in this regard that there is no "proof of marital offense, or of abandonment, or of financial need," and that the allowances are excessive.
We find that the evidence sustains the finding of abandonment and the award of alimony, but we think the counsel fee should be reduced to $500. A like allowance was made pendente lite; and we consider that a total of $1,000 is adequate compensation for all the services rendered by counsel.
For modification — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, COLIE, OLIPHANT, WELLS, RAFFERTY, DILL, FREUND, McGEEHAN, JJ. 14.