Holcomb v. Holcomb

• Decision Date: 07 January 1954
• Docket Number: No. 11767.,11767.
• Citation: 209 F.2d 794,93 US App. DC 242
• Parties: HOLCOMB et al. v. HOLCOMB.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 242, 209 F.2d 794 (1954)

HOLCOMB et al. v. HOLCOMB.

No. 11767.

United States Court of Appeals District of Columbia Circuit.

Argued June 9, 1953.

Decided January 7, 1954.

Mr. Leonard B. Sussholz, Washington, D. C., with whom Messrs. Abe Max Goldstein and Jacob N. Halper, Washington, D. C., were on the brief, for appellants.

Mr. Leslie C. Garnett, Washington, D. C., with whom Mr. Samuel F. Beach, Washington, D. C., was on the brief, for appellee. Mr. Karl Kindleberger, Washington, D. C., also entered an appearance for appellee.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

In January, 1945, the appellant, Weldon H. Holcomb, contracted to buy a house and lot in the District of Columbia for $5,850, of which $600 was paid in cash. He assumed a first trust indebtedness of $5,250, payable in monthly instalments. Although the contract provided for conveyance to him and his wife, Julia, the deed, dated February 1, 1945, and recorded February 11, was made to the appellant alone.

Holcomb had become Julia's third husband in the previous July. The purchase of a home indicates the marital venture was going well in January, 1945, but it collapsed about two months later and on March 29, 1945, the Holcombs mutually executed a contract reciting their agreement to live separate and apart, and their desire "to settle all property rights and all claims for maintenance, support and alimony * * *."

The husband agreed to convey the residence to his wife as soon as he should receive a deed "placing title to said property in him," and to transfer the household goods to her. The wife agreed to accept the house and furnishings

"* * * as a total release and discharge of all claims against Weldon H. Holcomb from the date of said transfer of real and personal estate henceforth, for support, maintenance, alimony, dower or any other claim of any nature whatsoever * * *."

Until the transfer had been made, Holcomb was to support his wife and meet the payments on the realty and personalty.

On April 23, 1945, less than a month after executing the separation agreement, Julia S. Holcomb filed suit in the United States District Court for the District of Columbia for an adjudication of property rights and for a limited divorce — two kinds of relief which in this jurisdiction are unrelated, as we shall show.

She did not plead the then very recent separation agreement of March 29 as a basis for asking that property rights be adjudicated. But that contract, apparently the only possible basis for the claim, was put in the record with the husband's answer, and was before the court when a final disposition of the case was made. Hence the complaint and answer together showed the separation agreement as the ground for the demand that property rights be adjudicated.

In Albertson v. Federal Communications Commission, 1950, 87 U.S. App.D.C. 39, 43, 182 F.2d 397, 401, we referred to "the long established rule that a defective pleading may be aided by an opposing pleading," and then said, "Under this rule `a defect in a pleading, even as to matter of substance, may be aided or cured by the pleading of the adverse party.'" This principle has been judicially described as an elementary rule of practice.¹ See also Cole v. Ralph, 1920, 252 U.S. 286, 290, 40 S.Ct. 321, 64 L.Ed. 567; Texas & New Orleans Railroad Co. v. Miller, 1911, 221 U.S. 408, 416, 31 S.Ct. 534, 55 L.Ed. 789; United States v. Morris, 1825, 10 Wheat. 246, 23 U.S. 246, 285, 6 L.Ed. 314.

Thus it seems clear that when the district judge acted, he had before him a case in which the wife was suing for a limited divorce on the one hand, and, on the other, for an adjudication of property rights under the settlement contract. As shown hereinafter, these were two separate, distinct and unconnected actions.

When the separation agreement was signed, Holcomb moved from the house and left Julia in possession. In the latter part of August, 1945, in the meantime having made payments on the first trust note which aggregated $115.08, Julia stored the furniture, left the house unoccupied, and went to Los Angeles, California, to enter school. Later, when the bank which held the first trust note notified Holcomb the house was vacant and three matured monthly instalments had not been met, he paid the arrearages, took possession of and repaired the house, and later rented it for the ceiling price of $65 per month.

Although she was in California, Julia filed three motions for contempt citations on account of Holcomb's alleged failure to make the maintenance payments,² and kept in constant contact with her counsel concerning the case. She did not appear, however, on February 20, 1946, the date to which the action was assigned for trial. On that day the court dismissed the action sua sponte and Julia was informed of that fact by her attorney.

She moved from Los Angeles to New York in April, 1947, and worked there as a nurse. Although she claims to have visited the District of Columbia and to have seen her husband in August, 1947, and again in 1948, it was not until February 21, 1951, that she filed the present suit against Holcomb for specific performance of the property settlement provided for in the separation agreement of March 29, 1945, and also asked for maintenance and for an accounting of rents arising from the property during the interim.

The husband answered that Julia had repudiated the property settlement agreement and had permitted her previous suit against him, in which she sought an adjudication of property rights, to be dismissed for want of prosecution. He alleged that, after her departure, he closed the house and it remained unoccupied for about a year; that when he found Julia was no longer a resident of the District and did not intend to rely on the separation agreement, he paid the past due instalments on the trust indebtedness, taxes and interest, made repairs and valuable improvements to the house, and reoccupied it. He also alleged that long prior to August, 1948, some of his Washington friends had visited Los Angeles and on their return told him Julia had died. Relying on that information, Holcomb married Anna C. Snipe on August 21, 1948, and thereafter they occupied the house in question until Julia filed the second suit. He counter-claimed for an absolute divorce on the ground of five years' voluntary separation, to which Julia replied that a divorce on that ground should be granted to her instead of to Holcomb, because he had entered into a bigamous marriage and was living in adultery.

Anna C. Holcomb, the second wife, intervened as a party-defendant and filed an answer to Julia's complaint. She alleged she had married Holcomb believing him to be a widower, and believing he was the sole owner of the house and that she had acquired an inchoate right of dower therein. She said that, in reliance upon what she thought was a marriage relation, she paid from her own funds $1,608.37 on the first trust note, $445 on a second trust for $720 which had been placed on the property by Holcomb, and paid or obligated herself to pay the further sum of $937.24 for an oil burner, water heater, and storm windows and doors. These sums aggregate $2,990.61. She charged Julia with laches and prayed either that the complaint be dismissed or that she be adjudged a lien to secure repayment of the sums she had expended on account of the property, if title should be awarded to Julia.

The trial judge found as a fact that the husband and second wife had paid on account of taxes and the first trust the sum of $3,574.92, and that the rental value of the house for the seven years during which it was occupied solely by the husband and the second wife³ was $5,460.

On the basis of these and other findings which we need not quote, the trial judge entered a decree December 16, 1952. He granted Julia S. Holcomb an absolute divorce. He also ordered specific performance of the property settlement set out in the contract of March 29, 1945, appointed a trustee to convey the property to Julia, and gave her judgment against her husband for $5,460, which had been found to be the rental value for seven years, to be credited, however, by the sum of $3,574.92, found to have been paid by the husband and the second wife for taxes and on the first trust indebtedness. In addition, the second wife's intervening petition was dismissed, and the husband was ordered to pay the first wife's attorneys a fee of $1,000. In the absence of supersedeas, the trustee conveyed the real estate to Julia S. Holcomb. Nevertheless, the husband and the second wife appeal.

They say the dismissal of Julia's first suit amounted to res judicata as to her right to enforce the property settlement agreement; and they contend she is barred by laches from prosecuting this action to enforce it. Complaint is made of the court's action in awarding the rental value of the real estate to the first wife against the husband, and in denying the second wife's claim for her expenditures and a lien to secure them. The allowance of counsel fee of $1,000 is also attacked.

At the outset the appellee argues the case is moot because the real estate in question has already been conveyed to her by the trustee appointed by the court. We cannot agree. Holcomb did not voluntarily comply with the judgment from which this appeal is taken. His failure to supersede the judgment, which is quite understandable in view of the record's disclosure that he is physically disabled and practically penniless, did not affect his right to appeal therefrom. Dakota County v. Glidden, 1885, 113 U.S. 222, 5 S.Ct. 428, 28 L.Ed. 981; O'Hara v. MacConnell, 1876, 93 U.S. 150, 23 L. Ed. 840; Schaeffer v. Drury, 1914, 42 App.D.C. 117; Logan v. Goodwin, 8 Cir., 1900, 104 F. 490.

We turn to the appellant's contention that the dismissal of Julia's first suit, which sought a limited divorce and an adjudication of property rights, amounted...