Davis v. Davis

• Decision Date: 07 March 1938
• Docket Number: No. 6745.,6745.
• Citation: 96 F.2d 512,68 App. DC 240
• Parties: DAVIS v. DAVIS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 240, 96 F.2d 512 (1938)

DAVIS v. DAVIS.

No. 6745.

United States Court of Appeals for the District of Columbia.

Decided March 7, 1938.

Joseph T. Sherier, of Washington, D. C., for appellant.

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

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

MILLER, Associate Justice.

On October 29, 1925, appellant was granted a divorce a mensa et thoro from his wife, appellee herein, by the Supreme Court of the District of Columbia (now the District Court of the United States). The wife was awarded custody of the minor daughter and alimony in the sum of $300 per month.

Under section 73, Title 14, D.C.Code, 1929, the lower court retained jurisdiction of the cause for future modification of its decree in respect to alimony and custody.²

In 1929 appellant filed a petition in the same case praying that the decree of October 29, 1925, be set aside or modified on the ground that, subsequent to the granting of that decree, he had obtained a divorce a vinculo matrimonii in the Circuit Court of Arlington County, Virginia. (His wife appeared specially in the Virginia suit.) From an order denying the relief prayed, an appeal was taken to this court and we affirmed that order. Davis v. Davis, 1932, 61 App.D.C. 48, 57 F.2d 414, 416.

On April 16, 1935, more than three years after our decision in that appeal, appellant filed a new petition in the court below — still in the same case — again seeking to set aside or modify the decree of October 29, 1925, and alleging three grounds for relief, namely, the marriage of the minor daughter subsequent to the 1929 order, the Virginia decree, which was set out in the previous petition, and a reduction in the income of appellant. The last ground was abandoned at the hearing below.

The lower court again denied the petition, stating:

"Well, of course, there is a conflict between this Bloedorn Case³ and this Davis Case.⁴ There is no doubt about that. In the Bloedorn Case they concede the Virginia decree did operate to do away with the provisions of the District decree. In this Davis Case they hold that it did not."

"And if this case came before me without this decision, that is one thing, but it has been before the Court of Appeals and that is what the Court of Appeals held — the plaintiff's prayer is rested solely on the decree entered in Virginia.

"So I am going to deny this petition." (Italics supplied.)

It is apparent from the language quoted that the lower court, in disposing of the case — apparently through inadvertence — confined its consideration to the second ground urged, and failed to consider appellant's prayer for relief based upon his daughter's marriage. This is assigned as error. A petition for the reduction of alimony is addressed to the sound discretion of the lower court, and the ruling thereon will not be disturbed on appeal unless there has been an abuse thereof.⁵ Was there an abuse of discretion here?

The decision of the lower court was founded upon our opinion in the first appeal. Davis v. Davis, supra. Certainly, it cannot seriously be said that we there passed upon the question raised by the daughter's marriage. We pointed out instead that the appellant's prayer for relief was rested solely upon the Virginia divorce decree, and that there was no allegation of any other change in the circumstances of the parties. As a matter of fact the marriage of the daughter had not at that time taken place. Moreover, our opinion on the former appeal is devoid of any statement limiting, directly or by implication, the power of the lower court to consider subsequent thereto such a change in circumstances. See Chase v. United States, 8 Cir., 261 F. 833. On the contrary, we based the decision explicitly on the ground that the lower court, having first taken jurisdiction of the case, retained jurisdiction under the statutes of the District of Columbia "to enter further and additional orders therein respecting the alimony of the wife and the care and custody of the minor daughter." Davis v. Davis, supra.

Under such circumstances the applicable rule is set forth in Seibert v. Minneapolis & St. L. Ry., 58 Minn. 58, 64, 57 N. W. 1068, 1070, as follows: "It is elementary that if relief lying within the sound discretion of the trial court is refused on the ground of want of power to grant it, or upon any other ground that proves the nonexercise of that discretion, such decision will be reversed, and the case remanded, with a direction to exercise the discretion." See, also, Palliser v. Home Telephone Co., 170 Ala. 341, 54 So. 499; Martin v. Bank of Fayetteville, 131 N.C. 121, 42 S.E. 558.

That the marriage of a daughter may constitute a good and sufficient reason for modification of a previous order for support and maintenance is well settled. It has been held that the marriage of a minor daughter, creating relationships inconsistent with parental control, emancipates her from the custody, care and control of her parents;⁶ that an emancipation works as complete a severance of the legal filial relationship as if the child had reached majority,⁷ thus relieving the parent of all legal obligation for support (Perkins v. Westcoat, 3 Colo.App. 338, 33 P. 139), even though in a particular case it may not affect the power of a court to control the custody of the child. Richardson v. Browning, 18 F.2d 1008, 1012, 57 App.D.C. 186, 190. It is not necessary for us to consider these questions on their merits, but it is obvious that such a change in circumstances, with the possibility of such far-reaching effects, is one eminently proper for consideration in disposing of appellant's petition.

Consequently, the omission of the court to consider the matter presented by appellant in support of his petition constituted failure to exercise its discretion (Mattox v. United States, 146 U.S. 140, 147, 151, 13 S.Ct. 50, 36 L.Ed. 917), thus unfairly depriving him of his rights under the circumstances (Pettegrew v. Pettegrew, 128 Neb. 783, 788, 260 N.W. 287, 289; Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520); and requires that the cause be remanded "for further proceedings from the point where the error was committed." Taft, J., in Felton v. Spiro, 6 Cir., 78 F. 576, 581, 583.

Appellant also urges that the lower court should recognize the Virginia decree and, upon the basis thereof, revoke or modify its previous order for alimony. The appellee contends, and the lower court held, that it was foreclosed from so doing by our decision in Davis v. Davis, supra. There can be no doubt that on the first appeal precisely the same issue was presented. We there held that the lower court properly denied appellant's prayer for relief based upon the Virginia decree. Unless that decision can, and should, be disregarded, it constitutes the law of the case, and the decision of the lower court, based thereon, must govern henceforth, in so far as it is founded upon our disposition of that particular issue.

This court has adopted and applied "the law of the case" rule. District of Columbia v. Brewer, 32 App.D.C. 388; Warner v. Grayson, 24 App.D.C. 55. The Supreme Court had said, however, that the rule does not constitute an absolute limit upon the power of the court, but, rather, expresses the practice of courts generally to refuse to reopen what has been decided. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152, and cases there cited; King v. West Virginia, 216 U.S. 92, 100, 101, 30 S.Ct. 225, 54 L.Ed. 396. The court has power, under some circumstances, to disregard a prior decision, although it should not be exercised except in a clear case (Williams v. Order of Commercial Travelers, 6 Cir., 41 F.2d 745), where the earlier adjudication was plainly wrong (Seagraves v. Wallace, 5 Cir., 69 F.2d 163, 165; Rogers v. Chicago, R. I. & P. Ry., 8 Cir., 39 F.2d 601, 604), and where the application of the "law of the case" rule would work manifest injustice. Zurich General Accident & Liability Ins. Co. v. O'Keefe, 8 Cir., 64 F.2d 768, 770; Johnson v. Cadillac Motor Car Co., 2 Cir., 261 F. 878, 886, 8 A.L.R. 1023. Cf. United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 67, 69 L.Ed. 262.

It is difficult to see in what respect our earlier adjudication was so clearly wrong, or the application of the "law of the case" rule so certain to work manifest injustice upon the parties as to require its repudiation in this case. It is only with respect to the Virginia decree of divorce that the lower court is foreclosed from acting upon appellant's petition. As already indicated, it is at liberty to give full consideration to all other changes of circumstances, including those occasioned by the marriage and consequent emancipation of the daughter. It is true that since our decision in Davis v. Davis, supra, we have held in Bloedorn v. Bloedorn, 64 App.D.C. 199, 76 F.2d 812, cert. denied 295 U.S. 746, 55 S.Ct. 658, 79 L.Ed. 1691, and Atkinson v. Atkinson, 65 App. D.C. 241, 82 F.2d 847, that decrees of divorce entered by courts of Virginia and Maryland, respectively, were valid in the District of Columbia. However, each of those cases is distinguishable from the present appeal, and the mere fact that a different result was reached is of no significance.

In the Bloedorn Case the wife, appearing as plaintiff in a suit in the District of Columbia obtained, a consent decree for separate maintenance, together with an award of alimony. The husband later sued in Virginia for an absolute divorce and the wife appeared generally to defend therein. This court held that the Virginia decree, in his favor, must be given full faith and credit in the District of Columbia, pursuant to article 4, § 1 of the Constitution, because it was undisputed that the Virginia court had full jurisdiction of the parties and the subject matter. Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1.

In the Davis Case, on...