Dorsey v. Dorsey, 3875-49.

• Decision Date: 26 December 1950
• Docket Number: No. 3875-49.,3875-49.
• Citation: 94 F. Supp. 917
• Parties: DORSEY v. DORSEY.
• Court: U.S. District Court — District of Columbia

94 F. Supp. 917

DORSEY v. DORSEY.

No. 3875-49.

United States District Court District of Columbia.

December 26, 1950.

Harrison Fargo McConnell, Washington, D. C., for plaintiff.

George A. Horkan, Washington, D. C., Lester R. Conley, Arlington, Va., for defendant.

TAMM, District Judge.

Plaintiff sued defendant for an absolute divorce alleging a five-year voluntary separation.

Plaintiff married defendant on January 29, 1929. Defendant was adjudicated insane on September 14, 1934, and was committed to Saint Elizabeth's Hospital. The Superintendent of Saint Elizabeth's Hospital certified on October 31, 1936, that defendant was then of sound mind. On November 6, 1936, defendant was adjudged of sound mind and sane and released from St. Elizabeth's Hospital. On the 21st of December, 1936, defendant was again adjudged of unsound mind and recommitted to St. Elizabeth's Hospital.

Plaintiff alleged that during the interim between the two periods of insanity and commitment, defendant while sane in fact and in law left plaintiff with plaintiff's consent and that a voluntary separation ensued which was of five years duration and which is the basis of this action.

The question of law which must be resolved is whether there was under the facts of this case a voluntary separation as provided for in section 16 — 403 of the District of Columbia Code.

There was no voluntary separation of five years duration as provided for in the Code. Originally, the separation was voluntary. Defendant was a very short time thereafter adjudged of unsound mind and committed. She remains in that condition of mental derangement and is at present committed.

The original character of the separation is not determinative of its ensuing nature. The Court of Appeals in Bowers v. Bowers, 1944, 79 U.S.App.D.C. 146, 143 F.2d 158, 159, held that:

"The issue turned upon the continuing character of the separation, not its origin; but its origin is evidence of its continuing character. We have held that if both parties voluntarily and continuously acquiesce in separation during five years, the statute authorizes divorce even though the separation was not originally voluntary on both sides. Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556. It is equally true that if either party does not voluntarily and continuously acquiesce in separation during five years, the statute does not authorize divorce even though the separation was originally voluntary on both sides. But one who contends that a...