Curry v. Curry, 6339.

• Citation: 65 App. DC 47,79 F.2d 172
• Decision Date: 22 July 1935
• Docket Number: No. 6339.,6339.
• Parties: CURRY v. CURRY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

65 App. DC 47, 79 F.2d 172 (1935)

CURRY v. CURRY et al.

No. 6339.

United States Court of Appeals for the District of Columbia.

Argued January 11, 1935.

Decided July 22, 1935.

Francis W. Hill, Jr., of Washington, D. C., for appellant.

Henry I. Quinn and Austin F. Canfield, both of Washington, D. C., for appellees.

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

PER CURIAM.

This appeal presents a matrimonial controversy somewhat complicated by the interstate traffic in marriage and divorce.

The original parties, being residents of the District of Columbia, married in Washington, and lived together here for seventeen years, when a separation occurred. Two years later the marriage is alleged to have been dissolved by a Nevada decree of divorce; three months after which the husband married the third party in Virginia; while the present plaintiff, who is the first wife, is now living in Maryland, where the husband avers she is so domiciled as to preclude this suit; while she alleges, and the trial court finds, that she is merely sojourning in Maryland, in a manner leaving her free to bring this suit in this jurisdiction so far as domicile is concerned.

Mr. Curry and his first wife, Frances, were married in Washington in 1912, where they lived, without birth of children, until January 1929, when the husband left their residence and never thereafter returned.

The second wife, Lillian, appeared on the scene as the familiar friend and frequent visitor of Frances, who alleges that in 1927 or 1928 Lillian transferred her affection to the husband, which resulted in the Nevada divorce and the second marriage.

On July 25, 1930, the husband and Frances, each being represented by counsel, entered into three written separation agreements under seal, and witnessed by the attorneys, together with an alleged oral contract rendering the beneficial interest passing to Frances under the separation agreements contingent upon her first procuring a Nevada divorce so that the husband might marry Lillian.

By these contracts the husband agreed to convey their residence in the city of Washington to Frances, with its furniture and fittings; and to pay $150 per month until her death or remarriage; both parties relinquishing all other property rights inter sese.

During the period of separation, from January, 1929, when the husband left home, until August, 1930, when the wife left for Reno, he made payments of money for her support at a theoretical rate of $150 per month, though such payments appear to have been occasionally diminished or withheld, as the wife alleges, to speed her on the road to Reno, and to force her to procure the divorce.

But Frances having arrived at Reno in August, in November her bill for divorce was filed, was heard, a decree a vinculo was granted, and she permanently left that jurisdiction, all on the same day, being November 15, 1930. The husband entered an appearance and filed an answer in that proceeding by an attorney, but did not personally appear, and no evidence was offered or defense made in his behalf.

Thereupon Frances returned to Washington, where the property was transferred to her; the $150 per month paid to her; and three months later the husband married Lillian in Virginia, taking up his residence with her in Washington, where they have ever since lived, so that the District of Columbia has been the only matrimonial domicile of both marriages. This arrangement continued until December, 1931, when the husband stopped the monthly payments to Frances because of financial reverses and inability to maintain them, as he alleges. Whereupon Frances was obliged to mortgage the house, and being unable to meet the obligations thereon, it was sold in foreclosure, producing no surplus for her.

She subsequently obtained a judgment against the husband for arrears due her under the separation agreement, but being unable to satisfy the judgment, she found herself penniless, and thereupon discovered that her Nevada divorce was invalid because of coercion practiced upon her by the husband; because of fraud practiced by both parties upon the Nevada court; and because of lack of domicile of either party within the jurisdiction of that court. And while there is much in the record to indicate that her proceedings and her attitude constituted a recognition of an unwelcome but established situation; and that her husband was outspoken, both to her brother and herself, in his determination never to live with her after his departure from home in 1929; nothing appears which amounts to legal duress or coercion. On the contrary, Frances acquiesced in the whole arrangement, so long as the money was forthcoming, and she could retain the property. Throughout the controversy she had the benefit of counsel who is one of the most experienced, capable, and militant members of the bar, in addition to the advice and assistance of her brother.

She apparently had a cause of action in this jurisdiction for a limited divorce, with alimony, or for a separate maintenance, yet she traveled 3,000 miles alone, secured the advice of additional counsel, brought her suit, and pursued it to judgment, all of which was done under circumstances which clearly indicate, as the trial court finds, that she knew the husband was about to marry Lillian. She then...