Posnick v. Posnick, 13237.

• Decision Date: 07 February 1957
• Docket Number: No. 13237.,13237.
• Parties: David POSNICK, Appellant, v. Ethel POSNICK, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 37, 241 F.2d 442 (1957)

David POSNICK, Appellant, v. Ethel POSNICK, Appellee.

No. 13237.

United States Court of Appeals District of Columbia Circuit.

Argued January 8, 1957.

Decided February 7, 1957.

Mr. Jean M. Boardman, Washington, D. C., for appellant.

Mr. W. Cameron Burton, Washington, D. C., for appellee.

Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.

PER CURIAM.

After our decision in Posnick v. Posnick, 1955, 96 U.S.App.D.C. 198, 225 F. 2d 37, the judgment of the District Court was revised to conform thereto. Mr. Posnick promptly paid to Mrs. Posnick the moneys due her under the revised judgment, and then moved to terminate or reduce the maintenance payments to her ordered by that judgment. This motion was denied by the District Court, not on its merits but on the ground that our opinion (cited above) precluded any change in the rate of maintenance unless some factor was shown other than the payment of the money judgment.

We think the court misread our opinion, which was not intended so to limit the District Court's power to pass on questions of maintenance. The appellee wife urges, however, that in any event the action of the District Court in denying appellant husband's motion should not be disturbed because the old rate of maintenance — thus allowed to continue — is in fact a fair and just one, especially in view of her own changed circumstances and her tax situation. But we cannot say that the motion and the response established as a matter of law that the husband was not entitled to any modification in the amount of maintenance. We therefore remand the case for a considered determination on the merits by the District Court, exercising its discretion in the light of all the facts and circumstances. Cf. Hunter v. Scruggs Drug Store, 4 Cir., 1940, 113 F. 2d 971, 974; United States v. Nez Perce County, Idaho, 9 Cir., 1938, 95 F.2d 232, 235.

We do not reach the other questions argued and intimate no view concerning them.

So ordered.

WILBUR K. MILLER, Circuit Judge (dissenting).

In the divorce proceeding the husband was ordered to pay the wife the sum of $43,671.30 in settlement of her interest in the partnership between them and in adjustment of other matters, and also was ordered to pay maintenance in the sum of $500 per month. He paid the judgment debt and immediately moved the court to terminate or substantially reduce the amount of maintenance on the ground that, because of the payment of the debt,...