Bloedorn v. Bloedorn

• Decision Date: 04 February 1935
• Docket Number: No. 6215.,6215.
• Citation: 64 App. DC 199,76 F.2d 812
• Parties: BLOEDORN v. BLOEDORN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 199, 76 F.2d 812 (1935)

BLOEDORN v. BLOEDORN.

No. 6215.

United States Court of Appeals for the District of Columbia.

Decided February 4, 1935.

Rehearing Denied March 11, 1935.

William C. Sullivan, of Washington, D. C., for appellant.

Crandal Mackey, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This is an appeal from a decree of the Supreme Court of the District of Columbia in a maintenance suit, growing out of a matrimonial controversy that has dragged through the courts of the District and Virginia for nearly six years. The parties were married in the District of Columbia in July, 1910; the only matrimonial domicile they ever had was in the District of Columbia; and the only child of the union was born in the District of Columbia; yet the marriage has been dissolved by a Virginia court, where the husband sued the wife for absolute divorce on the ground of her desertion and abandonment. While appreciating the incongruity of this situation in fact, we must recognize its validity in law, under the faith and credit clause of the Constitution (Const. art. 4, § 1), and the statutory provisions and legal doctrines controlling the matter. The difficult remedy for this unwholesome condition may lie in a system of uniform divorce laws more liberal than the present statute of the District of Columbia.

With modern facilities of communication, even a busy physician, like the husband in this case, may be professionally available in Washington while legally resident in Virginia or Maryland, and the matrimonial law of each of these three contiguous jurisdictions differs in important respects from each of the others.

The parties having lived together in Washington for eighteen years, then separated by a withdrawal of the husband from their place of abode in a removal which the wife pleads as a willful abandonment and a deliberate desertion, but which the husband justifies as a strategic retreat in self-defense.

After his withdrawal, the husband paid the wife $250 per month for the support of herself and their minor child until April, 1929, when she filed a bill in the Supreme Court of the District of Columbia praying for separate maintenance, alleging desertion in July, 1928, refusal to return, and inadequate support. He answered the bill, attacking his wife's conduct, justifying his own, setting forth his financial faculties, and expressing willingness to support his wife and child, but not on the scale demanded by her.

There the matter rested for two years, during which the parties lived apart, and during which the husband continued his monthly payments for the maintenance of wife and child.

In April, 1931, a decree was entered, by consent of the parties and without evidence, which required the husband to pay $275 per month for support of the wife and child; to maintain an existing insurance upon his life for the benefit of the child in the sum of $25,000; awarding custody of the child to the mother with right of visitation in the father; and enjoining each party from molestation of the other.

Four months later, and on July 1, 1931, the husband took up residence in Arlington county, Va.; and on October 31, 1932, he filed his bill in the circuit court for that county praying an absolute divorce on the ground of his wife's desertion in July, 1928, when she remained at home while he withdrew to Colorado, so that the same act, in which the controversy culminated, and which ended their life together, is pleaded by each spouse as desertion by the other.

The bill further charged the wife with constant nagging and discord seriously impairing the health of the husband, and with finally ordering him from their abode, which was in the residence of her mother, and refusing thereafter to live with him. Personal service of this bill was made upon the wife, who entered appearance by two counsel, filed an answer denying any misconduct on her part by nagging or otherwise, and charging her husband with many matrimonial misdemeanors from habitual discourtesy to repeated adultery, both included.

Thereafter the cause was referred to a master in chancery to ascertain and report whether the court had jurisdiction and whether a divorce should be granted.

The wife made no attack on the jurisdiction of the court or the bona fides of the husband's residence in Virginia, but appeared before the master in person and by counsel, testified herself in support of her pleadings, and offered other evidence to the extent of nearly 500 pages of type, including the pleadings and decree in her suit in the District of Columbia.

The cause was thereafter presented to the court by evidence and argument, the facts were found in favor of the husband, and a final decree of divorce a vinculo was entered on November 22, 1933, requiring the husband to pay $75 per month for support of the child, and allowing $600 to the wife for counsel fees upon her motion.

From this decree the wife sought an appeal to the Supreme Court of Appeals of Virginia, which was denied. Throughout this period, from the consent decree in the wife's suit in March, 1931, until the final decree in the husband's suit in November, 1933, the husband paid her $275 per month as required of him by the earlier decree, but in December, 1933, the month following his decree in Virginia, he paid the $75 as required by that decree, and no more.

Thereupon the wife filed a petition in her suit in the Supreme Court of the District of Columbia alleging a default of $200 in alimony then due her; praying a rule for its payment; and a judgment in contempt for continued refusal. The husband, or ex-husband, answered this petition by setting up the Virginia divorce proceedings and decree as of its own force vacating the decree for maintenance in the District of Columbia by dissolving the marriage, and, in the alternative, asking for a new decree vacating the order of maintenance because of the divorce.

Thereupon a motion was filed by the wife to strike out the answer to the rule; the matter was heard; the motion to strike was denied; the rule discharged; and from that decree we have this appeal.

The wife, on the present record, does not question here the jurisdiction of the Virginia court over the parties and the subject-matter; and she pressed no such question there.

But she contends that the Virginia decree cannot operate of its own force to extinguish her prior decree for maintenance, and that the decree here giving it that effect in respect to the alimony then past due was erroneous. The record reveals no indication of collusion between the parties, but contains ample evidence of collision. And in view of the husband's domicil in Virginia for the statutory...