Harris v. Harris

• Decision Date: 14 January 1970
• Docket Number: No. 22266,22705.,22266
• Citation: 424 F.2d 806,137 US App. DC 318
• Parties: Helen HARRIS, Appellant, v. Guy H. HARRIS, Appellee. Yvonne H. PARKS, Appellant, v. Norman E. PARKS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 318, 424 F.2d 806 (1970)

Helen HARRIS, Appellant, v. Guy H. HARRIS, Appellee.

Yvonne H. PARKS, Appellant, v. Norman E. PARKS, Appellee.

Nos. 22266, 22705.

United States Court of Appeals, District of Columbia Circuit.

Argued September 18, 1969.

Decided January 14, 1970.

Petition for Rehearing Denied February 12, 1970.

COPYRIGHT MATERIAL OMITTED

Mrs. Patricia M. Wald, Washington, D. C., for appellants. Messrs. Joseph F. Dugan and Peter S. Smith, Washington, D. C., were on the brief for appellant in No. 22266. Mr. David S. Raycroft was on the brief for appellant in No. 22705. Mr. Peter S. Smith, Washington, D. C., also entered an appearance for appellant in No. 22705.

Mr. Walter W. Johnson, Jr., Washington, D. C. (appointed by this court), as amicus curiae.

Mr. John D. Hawke, Jr., Washington, D. C., filed a brief on behalf of American Civil Liberties Union Fund as amicus curiae in No. 22266.

Before McGOWAN, ROBINSON and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

Both appellants in this consolidated appeal petitioned in forma pauperis under D.C.Code § 15-712¹ to be relieved from the payment of costs with respect to their actions for absolute divorce on the grounds of "voluntary separation from bed and board for one year without cohabitation * * *." D.C.Code § 16-904(a).² Each petition in forma pauperis was denied by the Domestic Relations Branch of the Court of General Sessions and such decisions were affirmed by the District of Columbia Court of Appeals. The Circuit Court has jurisdiction under D.C.Code § 11-321 (1967) pursuant to which we granted discretionary review.

I

Appellant Yvonne Parks was married early in 1961, separated the same year, and has lived separate and apart without cohabitation for what is now in excess of eight years. In her affidavit of indigency she states in effect that she and her five dependent children are living on $220 per month ($36.66 per person) received from the Department of Public Welfare.³ Notwithstanding her affidavit of indigency, the Domestic Relations Branch without a written opinion ordered that she be "not permitted to bring said proceeding to conclusion without prepayment of fees or costs or security therefor." A motion for en banc consideration by the District of Columbia Court of Appeals was denied.

II

Helen Harris was married in 1952 and has been separated since 1955. In support of her petition that she be allowed to proceed in forma pauperis she filed an affidavit alleging her belief in the merits of her claim for divorce; that she had been separated from her husband for over fourteen years; that because of her poverty she was unable to pay the costs of the divorce proceeding or to give security therefor and generally alleged her inability to pay the costs of the divorce action and still support her family.⁴

In denying her right to proceed in forma pauperis, the Court of General Sessions in a written opinion stated, inter alia, that her lack of poverty is belied by her own statement and that prosecution of her divorce claim in forma pauperis would involve the responsibilities of other members of the bar as well as District of Columbia taxpayers. The opinion also referred to the probability that because the defendant is a non-resident the court would be asked to appoint counsel to represent him,⁵ and that this would cause the court to be faced with the inability to compensate appointed counsel. The court's memorandum stated further:

"Here the parties have created a situation by their own act. They separated voluntarily. The taxpayers of the District of Columbia did not ask these two people to get married. They did not ask them to separate. They should not be made to underwrite the legal procedures to terminate the relationship."

The court also viewed a "deeper problem" alleging that members of the bar were deviating from their proper role as counsel in matrimonial disputes and instead of attempting to reconcile families were stirring up matrimonial litigation. Reference was made to the fact that the Legal Aid Society has consistently refused to ask for leave to proceed in forma pauperis in other than support and custody matters, and asserted that it was demeaning to the legal profession to attempt to break up the family and to stir up litigation for that purpose. Such conduct, the court noted, was contrary to public policy which encourages the preservation of the institution of marriage and the permanency of the family relationship. Finally it concluded that because of the foregoing and other reasons it would "not exercise its discretion to allow this or similar divorce cases to be brought in forma pauperis" and that it would not allow the appeal to proceed in forma pauperis. (Emphasis added).

III

There is no question that Mrs. Parks is, in fact, indigent and unable to make deposit of costs. Mrs. Harris' case is more marginal and merits further comment. One of the reasons given by the lower court in denying Mrs. Harris' petition to proceed in forma pauperis was that "Her allegation of poverty is belied by her own statement." Assuming for the moment that this was the sole reason for denying appellant's petition, we feel that such summary denial was improper under these facts.

The test to be applied here is that laid down in Adkins v. E. I. Dupont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43, 11 A.L.R.2d 599 (1948), where Mr. Justice Black, delivering the opinion of the Court with respect to the federal in forma pauperis statute⁶ stated:

"We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty `pay or give security for the costs * * * and still be able to provide\' himself and dependents `with the necessities of life.\'" 335 U.S. at 339, 69 S.Ct. at 89.

In Harris, the trial judge was concerned with the $70 per week take home pay. Under the circumstances, seventy dollars per week is not, in and of itself, so substantial a figure as would disqualify a person with pressing debts and two minor children to support from proceeding in forma pauperis.⁷ Thus under the District of Columbia Code, as under the federal statute, in forma pauperis relief is not limited to those who are public charges or absolutely destitute.

The present state of affairs then is that Mrs. Harris and Mrs. Parks are indigent within the meaning of D.C.Code § 15-712. Because the trial courts denied their petitions to proceed in forma pauperis, they had been effectively barred from proceeding with their respective divorces despite the fact that both cases in question are, under the statute, strong divorce cases with substantial periods of separation and children involved. We feel that this has been brought about by the trial court's failure to construe the applicable statutes properly.

The obvious intent of the indigency statute is to make available to the indigent, in common with his fellow citizen, the full range of civil remedies contrived by court or legislature including what appear to be meritorious cases for divorce. We fully appreciate the lower court's concern that courts and lawyers should not be put in a position where it would appear that they are encouraging divorce. However, Congress has enacted a statute authorizing divorce on prescribed grounds and, where the facts indicate that a party is entitled to a divorce on the basis of one of these grounds, additional inquiries are not warranted. Despite differing views of some, there are strong sociological, humanitarian and legal reasons why divorce may be of value to society. This is the reason Congress enacted the divorce statute. It is also the reason why the in forma pauperis statute should be construed to permit indigents to proceed in good faith with nonfrivolous claims for divorce. There are a number of situations where the court would be perfectly justified in denying in forma pauperis applications in divorce cases but these are not such cases.

IV

The amicus curiae appointed by the court states one of the issues here presented to be:

In applying the In Forma Pauperis statute to indigent plaintiffs in divorce actions is it proper for the trial judge to give consideration to the public policy of the District of Columbia against divorce and in favor of the continuation of marriage?

If such were the full statement of the public policy applicable, no indigent plaintiff could obtain a divorce, but fortunately such is not the public policy of the District of Columbia with respect to divorce applications by indigent plaintiffs. Rather, the public policy in such matters is set forth in the two statutes enacted by Congress, i. e., the divorce statute and the in forma pauperis act, and together these statutes authorize divorces in such situations. The public policy on such matters is for Congress and not the judicial branch of government. See Friend v. Northern Trust Co., 314 Ill.App. 596, 42 N.E.2d 330, 334 (1942); Grossman v. Grossman, 315 Ill. App. 345, 43 N.E.2d 216, 219 (1942). The public policy on any matter is primarily for the lawmakers and is to be ascertained by reference to the Constitution, statutes and court decisions and not from general considerations of supposed public interest. If a policy exists it may be used to resolve an uncertainty of law but it cannot override a statute. Muschany v. United States, 324 U.S. 49, 65 S.Ct. 442, 89 L.Ed. 744 (1945); Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S.Ct. 476, 75 L.Ed. 1112, 83 A.L.R. 1168 (1931); Fullinwider v. Southern Pac. R. R. Co., 248 U.S. 409, 39 S.Ct. 130, 63 L.Ed. 331 (1919). Since Congress has prescribed certain statutory grounds for divorce it is beyond the authority of any court to impose additional grounds thereto. More specifically, it is not proper to use a divorce applicant's inability to pay the costs of a divorce action as a ground for denying any...