Perry v. Perry, 10708.

• Decision Date: 12 April 1951
• Docket Number: No. 10708.,10708.
• Citation: 88 US App. DC 337,190 F.2d 601
• Parties: PERRY v. PERRY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 337, 190 F.2d 601 (1951)

PERRY v. PERRY.

No. 10708.

United States Court of Appeals District of Columbia Circuit.

Argued January 17, 1951.

Decided April 12, 1951.

Henry Lincoln Johnson, Jr., Washington, D. C., with whom Thurman L. Dodson and Curtis P. Mitchell, Washington, D. C., were on the brief, for appellant.

Henry J. Siegman, Washington, D. C., with whom John J. O'Brien, Washington, D. C., was on the brief, for appellee.

Before EDGERTON, PROCTOR, and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant sued in the District Court to enjoin appellee, his former wife, from continuing her previously-instituted suit against appellant's present wife for alienation of affection and criminal conversation. His complaint alleged that in June 1949 appellee had joined him in executing a "Separation Agreement and Financial Settlement." That agreement recites that "the parties have agreed among themselves on a settlement of all property rights and differences existing between them" and includes among its terms the following provision: "1. Neither of them, the husband or wife, shall molest the other of them or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal proceedings for restitution of conjugal rights or otherwise whatsoever."¹ According to appellant, appellee's suit instituted in January 1950 sought to air charges which the non-molestation agreement was intended to foreclose. Appellee's answer below was that the "Separation Agreement and Financial Settlement" was obtained from her by misrepresentation, coercion, and without adequate consideration and also that it did not bar a suit against appellant's present wife. Appellee also filed a counterclaim asking that the agreement and appellee's divorce from appellant be declared void and that permanent maintenance be awarded her.

The present appeal is from the District Court's denial of appellant's motion for a preliminary injunction,² in which he sought to restrain appellee from prosecuting her independent suit and her counterclaim in the present suit until the court could dispose of the merits of his contention under the non-molestation agreement. No motion to dismiss was granted below, as was the case in McDonald v. McDonald, 88 U.S. App.D.C. ___, 189 F.2d 24 (March 22, 1951). The preliminary injunction was apparently denied by the trial court on the ground that the written agreement concerned property rights alone and therefore constituted no bar to appellee's suit here involved. A stay pending appeal was denied by the trial court on the ground that no further irreparable injury to plaintiff would result than had already occurred.

When a motion for preliminary injunction is presented to a court in advance of hearing on the merits, it is called upon to exercise its discretion "upon the basis of a series of estimates: the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience generally. A mere listing of the guiding considerations demonstrates their intangible nature, especially when no attempt is made at this stage to decide finally the questions raised." Concurring opinion in Communist Party v. McGrath, D.C., 96 F.Supp. 47, 48. We think the denial of preliminary relief below proceeded from an erroneous premise which prevented the court from striking the proper balance in this case.

We are not confronted here with a decision based upon a weighing of the "candor and credibility of the witnesses".³ "`Where the evidence is partly oral and the balance is written or deals with undisputed facts, then we may ignore the trial judge's finding and substitute our own * * * if the trial judge's finding must rest exclusively on the written evidence or the undisputed facts, so that his evaluation of credibility has no significance.'"⁴ The lower court's denial of a preliminary injunction was based solely upon its construction of the written agreement.⁵ Looking to that agreement, we cannot agree that the non-molestation clause thereof, on its face, extends only to property disputes between the parties. That clause expresses in the broadest terms the agreement of the parties not to molest each other by the institution of "any legal proceedings for restitution of conjugal rights or otherwise whatsoever." It seem clear to us that, by using the words "or otherwise whatsoever," the parties sought, at the very least, to bar molestation by any legal proceedings. Whether the agreement was intended to encompass extra-legal molestation is, of course, not before us at this time.

The wide reach of the agreement is also indicated by the recital at the outset that it is designed to settle "all property rights and differences existing between them." Even if "differences" might at first be thought to relate back to "property rights," the possible ambiguity resulting therefrom is removed by the broad reach of the non-molestation clause which follows close upon the recital. "`If both the recitals and the operative part (of a contract) are clear, but they are inconsistent with each other, the operative part is to be preferred.'" Kogod v. Stanley Co., 1950, 88 U.S.App.D.C. ___, 186 F.2d 763, 765.

While we make no attempt now "to decide finally the questions raised," our estimate of the probabilities, based upon a record "lacking any prejudicial element of credibility or non-credibility on the part of either party,"⁶ is (1) that the non-molestation agreement was directed at more than matters of property, and (2) that it extends as far as protecting appellant from a suit against another person which would necessarily and inevitably result in molesting him. Thus, we think that appellee's previously-instituted suit should be stayed until appellant's suit is heard on the merits. At that time, after appellant's case is in, it will be open to appellee to show that the words used in the agreement were not intended to mean what they appear to mean or to substantiate her charge that the agreement...