Henderson v. Henderson

• Decision Date: 14 January 1965
• Docket Number: No. 3581.,No. 3582.,3581.,3582.
• Parties: Barbara Joy HENDERSON, Appellant, v. Thomas S. T. HENDERSON, Appellee.
• Court: D.C. Court of Appeals

206 A.2d 267

Barbara Joy HENDERSON, Appellant, v. Thomas S. T. HENDERSON, Appellee.

No. 3581.

No. 3582.

District of Columbia Court of Appeals.

Argued December 7, 1964.

Decided January 14, 1965.

Rehearing Denied January 28, 1965.

Marvin C. Taylor, Washington, D. C., for appellant.

H. George Schweitzer, Washington, D. C., with whom Thomas B. Heffelfinger and George Herbert Goodrich, Washington, D. C., were on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge:

In 1963 appellee (husband) filed an action against appellant (wife) for an absolute divorce on the ground of five years' voluntary separation. In 1964 the wife filed an action against the husband seeking to vacate and set aside a property settlement agreement dated June 9, 1960, and to obtain in lieu thereof an order for maintenance and support. The two cases were consolidated for trial and resulted in judgments in favor of the husband in both instances. These appeals by the wife ensued.

(1) ABSOLUTE DIVORCE

Section 16-904(a) of the District of Columbia Code, 1961 (Supp. III 1964), provides that an absolute divorce may be granted when the husband and wife have been voluntarily separated from bed and board for five consecutive years without cohabitation. One of the essential elements that the complaining party must establish is that the separation was voluntary on the part of both for the statutory period. Maur v. Ciabarro, D.C.Mun.App., 154 A. 2d 366 (1959). The petitioning party, if it cannot be proved that his or her spouse had agreed to the separation throughout the five years or had silently acquiesced therein, must establish that the other spouse did not in good faith manifest a desire to continue the marriage, thus justifying the conclusion that there had been acquiescence in fact to the separation for the critical period. Roberts v. Roberts, 95 U.S.App.D.C. 382, 384, 222 F.2d 408, 410 (1955). The nature of the separation at its inception is not determinative of its continuing character but is only evidence thereof, and if one spouse did not agree to the separation at the beginning, that spouse may thereafter affirmatively consent or silently acquiesce therein for the required period. Martin v. Martin, 82 U.S.App.D.C. 40, 41, 160 F.2d 20, 21 (1947). Even though one spouse might oppose an application for a divorce on the basis that the separation was not mutually voluntary, if the efforts made toward a reconciliation were so slight as to amount to a nullity, silent acquiescence will be held to have taken place and the divorce will be granted. Boyce v. Boyce, 80 U.S. App.D.C. 355, 153 F.2d 229 (1946). In each case the trial judge must decide from all the testimony whether the spouse who disputes that the separation was voluntary did in good faith manifest a real desire to continue the marriage status. "Manifest" connotes a plain or open showing of a desire to resume the marital relationship which must be directed to the petitioning party. Desires not reflected in conduct have little or no legal significance. Parks v. Parks, 73 U.S.App.D.C. 93, 116 F.2d 556 (1940). If either spouse does not continuously acquiesce in the separation during the five years, the statute does not authorize a divorce. Absent proof of mutual consent to the initial separation of the parties, the issue of continuing voluntariness of the separation for the required consecutive five years is generally a question of fact for the trial judge. Scott v. Scott, D.C. Mun.App., 147 A.2d 449 (1959).

The record reveals that the parties were married in New York on September 5, 1934. One child, now emancipated, was born to the marriage. On November 1, 1957, following a violent quarrel, the husband left the marital abode and has never returned. The parties have continued to live separate and apart from bed and board for more than five years. On November 7, 1963, the husband filed suit for absolute divorce. He contends that after he left the wife made no overtures to him toward reconciliation, although he resided in the District of Columbia, and that the separation became voluntary by her silent acquiescence therein...