Emrich v. McNeil, 7864.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 126 F.2d 841
• Docket Number: No. 7864.,7864.
• Parties: EMRICH v. McNEIL.
• Decision Date: 30 March 1942

126 F.2d 841 (1942)

EMRICH v. McNEIL.

No. 7864.

United States Court of Appeals for the District of Columbia.

Decided March 30, 1942.

Mr. J. Benjamin Simmons, of Washington, D. C., with whom Messrs. S. Joseph Corrigan and Scott D. Kellogg, both of Washington, D. C., were on the brief, for appellant.

Mr. Donald S. Caruthers, of Washington, D. C., with whom Messrs. Edison W. Mollohan, Jr., Charles M. Irelan, and Joseph D. Buscher, all of Washington, D. C., entered appearances, for appellee.

Before MILLER, EDGERTON and RUTLEDGE, Associate Justices.

MILLER, Associate Justice.

On November 3, 1936, Alton D. McNeil filed his suit in the District Court of the United States for the District of Columbia, asking for an absolute divorce from Margaret McNeil on the grounds of desertion. She answered, denying the allegation of desertion; asking for custody of the minor child; and asking, also, that the father be required to provide maintenance for the child. On February 15, 1937, the District Court granted an absolute divorce to Alton D. McNeil, but in its decree failed to speak with respect either of custody or of maintenance of the minor child. Eight days later, on February 23, 1937, a stipulation, signed by both parties and by their attorneys of record, was filed in the divorce action. This stipulation provided "that pendente lite and permanently the custody of the infant daughter of plaintiff and defendant, namely; Joan Teresa McNeil, now 6 years of age, shall remain with the defendant herein, Margaret T. McNeil, and that the plaintiff shall pay to the defendant, for the support and maintenance of said infant child, the sum of five ($5.00) dollars per week, which sum is hereby accepted by the defendant in full settlement and discharge of the obligation of the plaintiff to support and maintain said child." Italics supplied

Alton D. McNeil paid the stipulated amount of $5 per week for the child's maintenance, thereafter, until June 22, 1940, and on numerous occasions contributed additional sums of money for the support and care of the child. On July 1, 1940, Margaret McNeil Emrich — she having remarried — filed a motion in the original equity case No. 62869, asking that the District Court grant an increase in maintenance for the minor child. On July 8, 1940, Alton D. McNeil answered the motion and in his own behalf asked custody of the child, alleging that the mother was not providing a suitable and adequate home for her. The motion was heard on the 25th and the 29th of July, 1940, and on August 12, 1940, a decree was signed giving custody of the child to Margaret McNeil Emrich, and requiring Alton D. McNeil to pay the sum of $5 per week for the maintenance of the child, the first payment to be made on August 3, 1940. In fact, Alton D. McNeil made the first payment under the decree on July 29, 1940. He failed, however, to make payments for the period from June 22 to July 29, 1940.

On February 1, 1941, Margaret McNeil Emrich filed her complaint in the Municipal Court of the District of Columbia, asking judgment for $25, which amount she alleged to be due and owing by virtue of the stipulation theretofore filed in equity case No. 62869, in the District Court of the United States for the District of Columbia. Upon motion of Alton D. McNeil, and following argument, the Municipal Court dismissed the case for want of jurisdiction. We allowed an appeal to settle this important question of conflicting jurisdiction between the two courts.

The District Court acquired jurisdiction of the subject matter of the claim here involved upon the filing of suit, on November 3, 1936, in equity case No. 62869.¹ The bill of complaint in that case set forth that there was a minor child of the parties. The answer requested custody and provision for maintenance of the child. Although the decree of the court failed to speak with respect to custody or maintenance, it is apparent that this resulted from the fact that the stipulation entered into by the parties made provision for both. The stipulation bore no date upon its face but the fact that it spoke in terms of pendente lite and permanently, shows clearly enough that it was executed prior to the entry of judgment. It was filed — and carries the filing date stamped thereon by the court — on February 23, 1937, eight days after the entry of judgment. It carries the same number and title of cause as the suit itself, in which the decree of divorce had been entered. It is further titled "Stipulation for Maintenance and Support of Infant Child, etc." and was undoubtedly intended by the parties, their attorneys and the court to constitute a part of the record in that case. On this appeal it has been presented to us as a part of the record of the present case and it is not disputed that it was intended to supplement the decree of the District Court.

It may be observed in passing that it would seem to be better practice — if the court approves such a stipulation — that it should be incorporated into the decree itself.² But, even though this was not done in the present case, no reason appears for denying, to the stipulation, equal effectiveness as if it had been done; at least so long as, and to the extent that, it received the tacit approval of the court and was carried out by the parties.³ It was the duty of the court to act for the protection of the child and the situation is one, consequently, in which it is proper to assume that its official duty was performed.⁴

Having acquired jurisdiction, under the circumstances of the present case, the court's jurisdiction continued for all proper purposes concerning the custody and maintenance of the child.⁵ This results, first, from the principle, long recognized in the District, that when chancery once acquires jurisdiction over a subject matter it will continue to exercise that jurisdiction so long and so often as occasion shall require for the purpose of making its decree effective and of granting full and final relief in the premises,⁶ even though this may require the adjudication of purely legal rights which, otherwise, would not be within the range of its authority.⁷ Accordingly, the District Court has power to grant full and complete relief in an equity case.⁸ A divorce proceeding in the District of Columbia is equitable in character.⁹

But the important consideration which requires that the equity court — a court of competent jurisdiction — shall retain continuing and exclusive jurisdiction in the present case is one of public policy, i. e., the welfare of the minor child.¹⁰ Under such circumstances it is generally recognized that, independent of statute, a court of chancery has jurisdiction over the custody and maintenance of such a child.¹¹ A father who is a party to such a proceeding cannot, by contract or otherwise, avoid, or relieve himself from, his primary obligation to maintain a minor child.¹² The child's claim against its father for maintenance is not subsidiary to that of the mother.¹³ After submitting themselves to the jurisdiction of the court, the parents cannot by their agreement deprive it of power to control the custody and maintenance of the child.¹⁴ Such a child is in a very real sense the ward of the court.¹⁵ It has power to change the custody of the child; to enforce the parental obligation to provide maintenance;¹⁶ and, if necessary, to remove the child from the custody of both parents.¹⁷

For these reasons no reservation in the original decree is necessary for the exercise of continuing authority.¹⁸ In proceedings for divorce, the jurisdiction of the court is in some respects necessarily continuous. With respect to the custody and maintenance of minor children of the unhappy marriage, the court must necessarily retain a continuing jurisdiction.¹⁹ That the parties recognized these facts is shown by their filing of the stipulation in the equity case. It is shown, also, by their compliance, for several years, with the terms of the stipulation and by their reappearance before the District Court in July, 1940. They were no longer able, therefore, even as parents, to contract freely concerning the disposition and maintenance of the child.²⁰ The entire circumstances of the case indicate that the stipulation was not intended to serve such a purpose.

So long as they — and especially the child — remain subject to the jurisdiction of the District Court, public policy requires that it, not the Municipal Court, shall determine all questions of custody and maintenance. This is true even as between courts of concurrent jurisdiction — the one which first acquires jurisdiction retains it;²¹ and it is true as between courts of different states,²² unless the welfare of the child requires that the court of the state to which it has been physically removed should assume control.²³

Obviously, it is even more true as between an equity court of full jurisdiction and an inferior court of limited jurisdiction at law.²⁴ No advantage to the parties, to the minor child, or to the well being of the people of the District could be accomplished by permitting such a splitting up of issues as was attempted by filing the complaint in the present case in the Municipal Court. Every consideration, on the other hand, requires that the District Court retain control and administer justice in this case fully and completely. It is apparent that the relief afforded by equity will be much more comprehensive, satisfactory and just than would be possible in a court of law. If the time ever comes when Congress, in its wisdom, shall transfer full jurisdiction in equity over such cases to the municipal court then, of course, the reason for this decision will fail. But that is not the present situation.

Appellant relies upon the case of Demonet v. Burkart,²⁵ but it provides no support for her contention. That decision purported to state an exception to the general rule.²⁶ The court recognized the doctrine, which prevails generally, as well as in the District of...