Beckwith v. Beckwith, 9426.

• Decision Date: 01 April 1976
• Docket Number: No. 9426.,9426.
• Citation: 355 A.2d 537
• Parties: Annemarie Hoffman BECKWITH, Appellant, v. Robert T. L. BECKWITH, Appellee.
• Court: D.C. Court of Appeals

Page 537

355 A.2d 537

Annemarie Hoffman BECKWITH, Appellant, v. Robert T. L. BECKWITH, Appellee.

No. 9426.

District of Columbia Court of Appeals.

Argued November 13, 1975.

Decided April 1, 1976.

Rehearing and Rehearing en Banc Denied June 1, 1976.

Thomas Penfield Jackson, Washington, D. C., with whom Patricia D. Gurne, Washington, D. C., was on the brief, for appellant.

Elizabeth R. Young, Washington, D. C., for appellee.

Before KELLY and KERN, Associate Judges, and TAYLOR, Associate Judge, Superior Court.^*

TAYLOR, Associate Judge:

In an action for absolute divorce on the grounds of adultery the husband-appellee alleged that a child was born to his wife as a result of the commission of the act charged in the complaint. He was denied permission to add the child as a party defendant. The wife, in her answer, admitted that she executed a document purporting to state that the appellee was not the father of the child, but alleged that the document was obtained by fraud and duress and thus of no force and effect. She filed a counterclaim against the appellee for, inter alia, an absolute divorce on the grounds of adultery or desertion and moved for suit money and counsel fees.

On March 10, 1975, the lower court granted appellant's motion. However, the court at the same time, sua sponte, ordered (1) that appellant submit herself and her child to blood grouping tests and (2) that payment of the suit money and counsel fees be conditioned upon the filing of the test results with the court.¹ In its March 19, 1975 order on reconsideration the court reaffirmed its March 10 order in all respects and ruled that the legitimacy of the child was in issue in this proceeding pursuant to D.C.Code 1973, § 16-909. No guardian ad litem was specifically requested of, or appointed by, the court. This appeal is from both aspects of the sua sponte order of the court.²

The issues raised by the answers to the complaint and counterclaim have not come on for trial even though the complaint was filed over two years ago. The delay is, in part, the result of the wife's efforts to assure that the outcome of this proceeding will not affect adversely her child's right, through her husband, to inherit under the Mary Harlan Lincoln Testamentary Trust, a trust established by the wife of Todd Lincoln, Abraham Lincoln's son. The lengthy pleadings and judicial actions thereon are set out in the Appendix of this opinion.

Appellant's challenges to the order requiring her to submit her child to blood grouping tests, and to do so prior to the payment of suit money and counsel fees, will be considered in our resolution of the following five issues: (I) Does the court have jurisdiction in an action for absolute divorce on the grounds of adultery to order a mother, who is before the court, to submit her child to blood grouping tests for the sole purpose of deciding the issue of adultery where the child is not a party, not a resident, not represented by a guardian ad litem, and where there is no request before the court for support, maintenance, or custody? (II) Does the court in an action for absolute divorce on the grounds of adultery have discretionary authority under a statute or rule to order a mother who is before the court to submit her child to blood grouping tests for the sole purpose of deciding the issue of adultery and, if so, was such discretion exercised without abuse in this case? (III) Does the ordering of blood grouping tests of a child in a divorce proceeding to prove adultery violate the child's constitutional right to privacy?³ (IV) Does the absence of a guardian ad litem in this case deny the child due process of law? (V) Does the conditioning of an award of suit money and counsel fees on submission of a mother and her child to blood grouping tests violate the mother's right to counsel and due process?

We answer questions I and II in the affirmative, and questions III and IV in the negative. For the reasons set forth herein, we do not reach question V.

I.

The initial question is one of first impression in this jurisdiction and, insofar as we are aware, any other jurisdiction. The question raises issues relating to the court's personal jurisdiction over the appellant, jurisdiction over the subject matter, and jurisdiction to enter an order affecting a nonparty.⁴ First we consider appellant's contention that the filing of her counterclaim did not give the lower court personal jurisdiction over her.

Superior Court Domestic Relations Rule 13(a) provides that a defendant brought suit upon by process by which this court did not acquire jurisdiction to render a personal judgment need not file a compulsory counterclaim.⁵ As a nonresident defendant to a divorce proceeding, Mrs. Beckwith, upon substitute service, was not subject to in personam jurisdiction. She could have answered and defended on the merits after motions referred to in the Appendix were overruled without waiving her objections to the court's jurisdiction.⁶ However, she chose to counterclaim for divorce, which as not compulsory, was voluntary, and gave rise to personal jurisdiction. It is well settled that availing oneself of the jurisdiction of a court by filing a voluntary claim subjects the claimant to personal jurisdiction.⁷ We now turn to the question of subject matter jurisdiction and jurisdiction to enter an order affecting a nonparty.

Where there is subject matter jurisdiction, a court having personal jurisdiction may by its order affect persons other than those personally before it, Alves v. Alves, D.C.App., 262 A.2d 111 (1970), and may order an act which has an effect in another state or is to be carried out in anothe state. New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959); Argent v. Argent, 130 U.S.App.D.C. 46, 396 F.2d 695 (1968); H. Goodrich & E. Scoles, Conflicts of Laws, §§ 77-78 (4th ed. 1964). In the Alves case, the parents were personally before the court. This court held that the lower court had jurisdiction to enter an order that would determine the child's custodian, although the child was not present or a party. In deciding that a matter affecting the child could be decided without his presence, this court rejected "hard and fast rules of jurisdiction" in cases involving the internal affairs of the family unit. Similarly, we do so in the instant case and hold that the lower court had jurisdiction to issue the order challenged in this appeal.

In this case the subject matter over which the court had jurisdiction is the question of the paternity of the child as proof on the issue of adultery. The basic pleadings in this case call into question the paternity of the child. Appellee-plaintiff in support of his complaint for divorce on grounds of adultery denies his paternity. He implies that blood grouping tests are or may be inconsistent with his paternity. appellant-defendant, by her answer, contests the validity of his allegations and thus, by implication, denies that blood grouping tests could be inconsistent. Subject matter jurisdiction is jurisdiction over a matter in controversy. As blood tests are relevant to a determination of the issue of adultery in this case, and the possible results are in dispute by the parties, blood groupings are in controversy⁸ and thus part of the subject matter of this case.

In failing to recognize that the matter in controversy was the question of the paternity of the child as proof on the issue of adultery, as distinguished from the question of the legitimacy of the child for all purposes, appellant misconstrues the real jurisdictional basis of the order of the lower court. The order is not directed to the child. It is directed to a party who personally appeared before the court, and it requires her to perform an act within her power to perform as a lawful custodian of the child. The order requires no more of her than an order requiring her to give up custody of the child or to feed and clothe the child within the limits of a maintenance order, and in both such cases orders for blood tests have been upheld even though the child was not an actual party. Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479 (1940); State v. Cornett, 391 P.2d 277 (Okl.1964).

In Beach, supra, a divorce proceeding on the grounds of adultery in which maintenance for the child was requested, the court ordered blood grouping tests of the husband, wife and child to aid in determining paternity. It did so pursuant to Rule 35 of the Federal Rules of Civil Procedure, which at that time permitted the court to order a physical examination only of a party.⁹ The court solved the problem presented by the absence of the child by concluding that the child was "in substance" a party for purposes of the case because "[s]ocially, [the child] is a most important party." Id., 72 App.D.C. at 321, 114 F.2d at 482. However, the child was not made an actual party.

In State v. Cornett, supra, the husband brought an action for absolute divorce on the grounds of adultery alleging that he was not the father of the child born during the marriage. The wife counterclaimed for divorce, alimony, custody of the child and child support money. She contended that the trial court was without power to order a blood test for the, child because no guardian ad litem had been appointed and the child had not been made a formal party plaintiff or defendant in the suit. In holding that the court had jurisdiction to order the wife to submit her child to a blood test the court held that:

[A] child whose paternity is questioned in a divorce action is not a necessary party to the action, and that the joinder of such child as a party is not a pre-requisite to the ordering of blood tests for the child. [Id., 391 P.2d at 282.]

The appellant would distinguish the Beach and Cornett cases on the basis that they involved maintenance or custody, whereas the instant case does not. Apparently it is appellant's view that maintenance and custody cases directly affect the...