Gullet v. Gullet, Civ. No. 9040.

• Decision Date: 29 April 1947
• Docket Number: Civ. No. 9040.
• Citation: Gullet v. Gullet, 71 F.Supp. 378 (D. D.C. 1947)
• Parties: GULLET v. GULLET.
• Court: U.S. District Court — District of Columbia

71 F. Supp. 378

GULLET v.GULLET.

Civ. No. 9040.

District Court of the United States for the District of Columbia.

April 29, 1947.

William B. O'Connell, of Washington, D. C., for plaintiff.

William R. Lichtenberg and Samuel Barker, both of Washington, D. C., for defendant.

KEECH, Associate Justice.

This is an action for maintenance, in which an order for maintenance pendente lite was granted, Subsequent thereto defendant husband obtained a divorce in Florida, and moved to revoke the order for temporary maintenance, assigning as reason therefor the Florida decree.Hearing on this motion and on the merits were consolidated.The motion to revoke was denied, and the Court issued a permanent order for maintenance, from which appeal was taken.The Court of Appeals, 80 U.S. App.D.C. 73, 149 F.2d 17, reversed the trial court, with costs, and the cause was "remanded to the said District Court for further proceedings not inconsistent with the opinion" of the Court of Appeals.

Judgment on the mandate was issued calling for a new trial.Hearing was had, permanent maintenance was allowed plaintiff wife, and a motion for new trial was filed and granted.An order for maintenance pendente lite was entered.

On April 14, 1947, the case again came on for hearing on the merits.At that time a verbal motion was made to dismiss the proceedings on the strength of the opinion and mandate of the Court of Appeals.The Court refused to hear the motion verbally, but allowed an opportunity to file the motion and supporting authorities, with leave to plaintiff to file opposition.

The matter immediately before the Court is the motion to dismiss, authorities in support thereof, and plaintiff's memorandum in opposition thereto.The real question for determination is whether or not the opinion and mandate of the Court of Appeals were couched in such terms as to permit a new trial, or whether they were in bar of further proceedings.

It is my view that the opinion and mandate permit a new trial, that course of action not being inconsistent with the opinion and mandate, particularly when consideration is given to the record in the District Court, which was before the Court of Appeals, and the law with reference to full faith and credit to be accorded decrees of other jurisdictions.

The pertinent portion of the Court of Appeals' opinion reads, 80 U.S.App.D.C. 73, 149 F.2d 17:

"The trial court said: `The matter before the Court in the last analysis is this: a Court in this jurisdiction, with both parties before it, signed an order for temporary alimony or temporary maintenance based upon the allegations of a complaint which was sufficient in this jurisdiction to justify it.Otherwise it would not have been signed.Now, the defendant does not come into this Court and contest the maintenance case, he does not meet that issue, nor does he undertake to get an absolute divorce in this jurisdiction which would practically automatically relieve him from the payment of anything.But he does this: he avoids the issue by going to another jurisdiction where the requirements for an absolute divorce are not as vigilant as they are in this jurisdiction and he undertakes to defeat the maintenance order by getting the divorce there.The Court is of the opinion it is not necessary for the Court to pass upon this question as to whether or not he acquired a domicile in Florida, or whether or not there is any constitutional question involved.The Court is perfectly clear that he could not defeat the action for maintenance in this jurisdiction where the Court had acquired jurisdiction over both parties by going into another jurisdiction and getting a divorce or taking any other proceeding.* * * My ruling is that the marriage in Florida does not have any effect, that the divorce in Florida does not have any effect whatever upon this maintenance case.'The Supreme Court and this court have declared the law to the contrary.

"On this appeal, the judgment of the District Court is supported, on behalf of appellee, by the following contention: `Counsel for appellee is conscious of the unsettled state of the law regarding foreign decrees, but feels that one who relies on a foreign decree to defeat an order regularly entered in the courts of the District of Columbia should assume the burden of establishing by competent testimony that the decree he relies on was procured in a manner which entitles it to full faith and credit.'This contention, also, is without merit.When the judgment of a state is properly authenticated and stands unchallenged, as in the present case, a denial to it of full faith and credit constitutes a violation of the Constitution.In the absence of any showing of invalidity, appellee is foreclosed, by the Florida judgment, from the right to maintenance."

Could the Court of Appeals have considered that the trial court passed on the validity of the Florida decree insofar as domicile is concerned, and yet have held in its opinion that the decree was "unchallenged"?

I believe that the Court of Appeals, in the light of the record before it, treated the finding of the trial court as merely holding that the question of the validity of the Florida decree was not essential to his determination of the...