Edwards v. Edwards
| Decision Date | 29 April 1976 |
| Docket Number | No. 9245.,9245. |
| Citation | 356 A.2d 633 |
| Parties | Bertha EDWARDS, Appellant, v. Jesse EDWARDS, Appellee. |
| Court | D.C. Court of Appeals |
Willis C. Payton, Washington, D. C., entered an appearance for appellee. No brief was filed.
Before KELLY and MACK, Associate Judges, and PAIR, Associate Judge, Retired.
Appellant-wife appeals from an order of the Superior Court dismissing her complaint for an absolute divorce on the ground of constructive desertion. (D.C. Code 1973, § 16-904(a)). At the close of all the evidence at trial, the court ruled that the evidence was legally insufficient to support a finding of constructive desertion by appellee husband.
The pertinent facts, not in controversy, are that the parties were married on February 5, 1958, and lived together, with their three children, until November 8, 1971. On that date, the husband (who previously had physically abused the wife on several occasions) was arrested after having threatened her and the children with a loaded shotgun.1 As a result of this and a prior similar incident, the wife brought charges against him. He entered a plea of guilty to two counts of assault and battery,2 and on February 8, 1972, he was given a 60-day suspended sentence on each count and placed on probation for one year on the condition that he avoid contact with his wife concerning marital problems. Since that time, the parties have lived apart, the wife and children having remained in the family home.
On April 18, 1974, the wife commenced this action for divorce, charging constructive desertion by the husband. The trial court, in reliance on Hales v. Hales, D.C. App., 207 A.2d 657 (1965), determined that the elements of constructive desertion were not present because the wife had never left the marital abode.3 In our opinion the court erred.
In Hales, supra, the trial court had granted an absolute divorce on the ground of constructive desertion to a husband who did not return to his residence once he had found himself "locked out" by his wife. This court reversed for insufficient evidence. In describing the kinds of conduct which would have supported the decree (including cruelty arising from physical abuse), the court noted that:
Desertion contemplates a voluntary separation of one party from the other, without justification, an intention not to return, and the absence of consent or connivance of the other party. . . . [Citations omitted.] For the desertion to be "constructive" in character, one spouse must show misconduct by the other spouse forcing the former to abandon the marital abode. If such misconduct is shown the spouse remaining in the marital abode is treated, in the eyes of the law, as the deserter. [Emphasis supplied.] (Id. at 658-59.)
Focusing upon the last two sentences of this language, the trial court in the instant case determined that departure from the marital abode is an essential element of constructive desertion. We read this language as contributing nothing more than an attempted illustration of the degree of misconduct necessary to support constructive desertion under the factual circumstances of Hales.
Although the term "marital abode" has found its way into many of our cases involving constructive desertion, in each case, as in Hales, the factual circumstances were such that the party charging constructive desertion had left the conjugal domicile. See Roberson v. Roberson, D.C. App., 297 A.2d 769 (1972); Haberman v. Haberman, D.C.App., 267 A.2d 818 (1970); Grollman v. Grollman, D.C.App., 220 A.2d 330 (1966). Similarly, the term "marital abode" has found its way into cases involving desertion. See McEachnie v. Mc-Eachnie, D.C.App., 216 A.2d 169, 170 (1966); Novak v. Novak, D.C.App., 212 A.2d 341, 342 (1965); Stephenson v. Stephenson, D.C.App., 191 A.2d 248, 249 (1963). Under no circumstances can any of these decisions be read as holding that departure from a "marital abode" is necessary for a finding of desertion.4
[2-6] Desertion is defined as "a voluntary separation of one party from the other, without justification". 5 Grollman v. Grollman, supra at 332, citing Hales v. Hales, supra at 659.
In this case, the husband engaged in misconduct which forced the wife to terminate the marital relationship. Because of his acts of cruelty and physical abuse, she had two practical alternatives: she could either leave the family home with the children or enlist the aid of the police and the courts in protecting herself and the children from his assaults. Had she terminated the marriage by leaving the marital abode, it has not been disputed that she would have been entitled to a divorce on the ground of constructive desertion. We see no reason why she should be denied a divorce on that ground simply because she did not flee, but instead chose to file charges with the police with the intent of having the husband arrested and permanently restrained from living with her.6
While there are no cases in this jurisdiction involving this precise issue, a very similar situation arose in Csanyi v. Csanyi, 93 N.J.Eq. 11, 115 A. 76 (1921). In that case, a wife went to the police after she had been attacked by her husband and swore out a warrant for his arrest. She then returned to their home, where the husband was subsequently arrested. He was convicted of assault and imprisoned for 20 months. The wife's petition for divorce on the ground of constructive desertion was denied by a special master in part because "she did not [leave him] by any act of her own." Id. at 13, 115 A. at 77. The court, holding that she was entitled to the divorce, stated:
[A] constructive desertion of the petitioner by the defendant occurred at the time of his assault and battery upon her on the night before his arrest. The wife is not to be blamed, but commended, for invoking the process of the law against her brutal husband. Her swearing out the warrant for him was intended by her to cause his incarceration for her protection. It was legally the equivalent of her separating herself from him. . . . [Emphasis supplied.] (Id. at 14, 115 A. at 77.)
[7, 8] We find the reasoning of Csanyi to be persuasive. In this case, appellant brought about a separation for at least one year by voluntarily filing charges against her husband. Because of his cruelty, her action was justified and perhaps even necessary for her protection. We hold that she is entitled to a divorce on the ground of constructive desertion.7
Accordingly, the case is reversed with instructions that a judgment granting a divorce on the ground of constructive desertion be entered in favor of appellant.
Reversed and remanded for further proceedings not inconsistent with this opinion.
The majority holds contrary to well established law that a wife, subjected to cruelty by her husband, is entitled to a divorce on the ground of constructive desertion even though she remains in the marital abode and he is required to leave it.1 Thus in reversing the order of the trial court which dismissed the complaint and in directing the entry of a judgment for absolute divorce on the ground of constructive desertion, the majority overrules, in effect, an unbroken line of decisions of this court. Haberman v. Haberman, D.C.App., 267 A. 2d 818 (1970); Hannon v. Hannon, D.C. App., 220 A.2d 94 (1966); Grollman v Grollman, D.C.App., 220 A.2d 330 (1966); Hales v. Hales, D.C.App., 207 A.2d 657, 658-59 (1965); Potts v. Potts, D.C.Mun. App., 171 A.2d 263 (1961); Schreiber v. Schreiber, D.C.Mun.App., 139 A.2d 278 (1958). See also Roberson v. Roberson, D.C.App., 297 A.2d 769, 770 (1972); cf. Collins v. Collins, D.C.Mun.App., 156 A.2d 676 (1959).
These decisions either recognize or declare the rule to be that a divorce on the ground of constructive desertion may be granted only upon a showing that by reason of the cruelty of one spouse the other spouse was compelled for his or her own safety to leave the family home and make a home elsewhere. In Hales v. Hales, supra at 658-59, a husband sought and was granted a divorce on the ground of constructive desertion. This court reversed saying:
Desertion contemplates a voluntary separation of one party from the other, without justification, an intention not to return, and the absence of consent or connivance of the other party. Desertion as a ground for divorce has been broadened in this jurisdiction to include "constructive" desertion. For the desertion to be "constructive" in character, one spouse must show misconduct by the other spouse forcing the former to abandon the marital abode. If such misconduct is shown the spouse remaining in the marital abode is treated, in the eyes of the law, as the deserter. . . . [Citations omitted.]
Whatever may be said of this long standing rule, it is beyond any question now that because of the strictures of M. A. P. v. Ryan, D.C.App., 285 A.2d 310 (1971), a division of this court may not alter or change the rule. See also Schreiber v. Schreiber, supra at 279, where it was said: "A rule of long standing should not be disturbed in the absence of a strong showing of its unsoundness and injustice."
The majority says: "Under no circumstances can any of these decisions be read as holding that departure from a ...
To continue reading
Request your trial
-
Neuman v. Neuman, 9604.
...is entitled "General Provisions Governing Discovery", which caption applies generally to Chapter V of the Rules. 1. Cf. Edwards v. Edwards, D.C.App., 356 A.2d 633 (1976). 2. The trial court in that action advised counsel that he favored a "civilized" consent decree not branding anyone in th......