
    Bryant v. Bryant
    
      J. Willison Smith, Jr., for plaintiff.
    
      Lewis T. Moore, for defendant.
    May 29, 1952.
   Bok, P. J.,

On July 10, 1951, this court granted a final decree in divorce. On October 10, 1951, defendant appealed to the Superior Court, but as the appeal was not prosecuted, the Superior Court entered a judgment of non pros on April 16, 1952, and remitted the record. On May 5,1952, plaintiff filed her petition for additional counsel fees and expenses.

While we are sympathetic to the obvious suggestion that the appeal was dilatory, we are forced to hold that the current petition was filed too late. The authorities are collected in Baumhauer v. Baumhauer, 44 D. & C. 565 (1942), which squarely decides the point.

It is otherwise when such a petition is pending at the time of final disposition or when it is filed after final decree but pending appeal. The remission of the record is pro forma only: the record has to be somewhere, and it is always remitted to the court of first instance after final disposition of an appeal. The conclusion of this appeal leaves the record as it was before, with the final decree as the last act.

The petition is dismissed.  