Mazique v. Mazique, 19212.

• Citation: 356 F.2d 801,123 US App. DC 48
• Decision Date: 17 January 1966
• Docket Number: No. 19212.,19212.
• Parties: Jewell R. MAZIQUE, Appellant, v. Edward C. MAZIQUE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

123 US App. DC 48, 356 F.2d 801 (1966)

Jewell R. MAZIQUE, Appellant, v. Edward C. MAZIQUE, Appellee.

No. 19212.

United States Court of Appeals District of Columbia Circuit.

Argued November 30, 1965.

Decided January 17, 1966.

Mrs. Jewell R. Mazique, appellant pro se.

Mr. Charles K. Brown, Jr., Washington, D. C., for appellee.

Before BASTIAN, Senior Circuit Judge, and BURGER and TAMM, Circuit Judges.

PER CURIAM.

This is an appeal by Mrs. Jewell R. Mazique from a decision of the District of Columbia Court of Appeals, which affirmed a Domestic Relations Branch Division of the Court of General Sessions' award of an absolute divorce to Mrs. Mazique's husband, Dr. Edward C. Mazique, on grounds of desertion. The trial court further awarded Dr. Mazique sole interest in real estate owned by the parties; awarded custody of the couple's two minor children to the wife; ordered the husband to pay $400 a month for the minors; and denied Mrs. Mazique any alimony for her own support. These aspects of the judgment were also affirmed below. 206 A.2d 577 (1965).

Throughout these proceedings before this court, and the lower courts as well, appellant has elected to defend her case without the assistance of counsel. She has, in the course of this litigation: dismissed court appointed counsel; declined an offer to have counsel of her own choosing appointed for her; and, in an earlier appeal to the D. C. Court of Appeals, obtained permission to appear at trial pro se, albeit "with the understanding that she would not receive special consideration because of her lack of legal training." 206 A.2d at 579.¹

The testimony at the trial was in considerable conflict. What does appear is this: The parties were married in the District of Columbia in 1937 and lived together until the appellant left the home in the early morning hours of November 7, 1961. The trial court found this to be an unjustified desertion on her part. There was evidence of family detritus, including several incidents in the previous few months — particularly on September 13, 1961. Appellant offered testimony in an attempt to show cruelty by her husband and thus establish constructive desertion, but this was excluded on the ground that following Dr. Mazique's moving out of the home in January, 1961, and his return in April, 1961, the parties resumed intercourse, which constituted condonation by the wife, rendering earlier history irrelevant.

As to financial matters, the evidence showed that the husband entered medical school about the time of the marriage and that he has since become a successful physician. The wife worked during at least the early years of the marriage; the record does not show whether, or when, she stopped working. There was conflicting testimony about the relative contributions of the parties to the family's support in the early years of the marriage, as well as their relative contributions to the purchase of certain property, some of which was held in the husband's name alone, and some in both their names. There was scant evidence concerning the amount and disposition of the parties' incomes during the 18 years they lived together after the husband began practicing medicine. Such evidence was limited on the husband's part to the statement that he supported his family (including paying for his wife's credit accounts and traveling expenses) and the introduction of the income tax returns (both joint and individual) he filed in 1961-63; on the appellant's part, there was only the statement that she paid for some charge accounts and travel expenses herself.

The trial court found that Dr. Mazique was telling the truth and that most of what Mrs. Mazique said was made of "whole cloth," id est, fabricated. Accordingly, the court awarded the husband an absolute divorce and all the property. Since the judge found that Mrs. Mazique had deserted her husband "with malice prepense," he held she was entitled to no support or maintenance. The court gave custody of the children to the wife, as her husband had agreed at the trial, and ordered him to contribute $400 monthly for their support.

I

Appellant first contends that the trial court erred in finding that she had deserted her husband rather than finding him guilty of constructive desertion through acts of cruelty, which forced her to abandon the marital abode for her own physical safety.

It is well settled in this jurisdiction that a spouse who seeks to justify his or her desertion by establishing a constructive desertion on the part of the other spouse must do so by proving acts of cruelty sufficient to support a limited divorce. Hales v. Hales, 207 A.2d 657 (D.C.App.1965); Conners v. Conners, 208 A.2d 94 (D.C.App.1965); Schreiber v. Schreiber, 139 A.2d 278 (D.C.Mun.App.1958). Failure to establish constructive desertion quite naturally entitles the opposing spouse to a divorce on the grounds of unwarranted desertion, provided the guilty party remained away for the statutory two-year period required at the time this proceeding began. Title 16, D.C.Code, Section 904(a) (2) (Supp. IV 1965).² Conners v. Conners, supra.

Even where one spouse has been guilty of an offense that would support a finding of constructive desertion, a presumption of forgiveness or condonation arises from a resumption of marital relations which, absent a satisfactory showing that no true forgiveness existed or that the apparent resumption of ordinary marital relations was illusory, cancels out the earlier offense. Pedersen v. Pedersen, 71 App.D.C. 26, 107 F.2d 227 (1939).

Here, the evidence concerning the events of November 7, 1961, which led to appellant's departure, as well as the evidence concerning the events on September 13, 1961, and several other occasions in the two preceding months, was in conflict. We hold that there was evidence from which the trial court could have found that Mrs. Mazique had deserted without just cause on November 7, 1961.

The trial court's inquiry in this case in deciding whether there was condonation when the husband returned in April, 1961, was admittedly limited to whether the parties continued to sleep together and whether there was intercourse. However, Mrs. Mazique did not present any evidence to show that the marital relationship was not fully resumed in April, and the next incidents described — including her moving to a separate room — came in September.

In view of the length of time the parties were together between April and September, and the absence of any testimony by the wife concerning difficulties during that period, the limited inquiry by the trial court on this subject did not constitute error.

II

Appellant next contends that the trial court erred in awarding all of the parties' property to her husband. The trial judge must "exercise a sound judicial discretion in adjusting the property rights of the parties." Oxley v. Oxley, 81 U.S.App.D.C. 346, 348, 159 F.2d 10, 12 (1946); Hunt v. Hunt, 208 A.2d 731 (D.C.App.1965); Lundregan v. Lundregan, 176 A.2d 790 (D.C.Mun.App. 1962). Where jointly held property is involved, and the evidence shows that the husband contributed the bulk, if not all, of the funds for the purchase thereof, the wife's interest is deemed to be conditioned on her faithful performance of the marriage vows. "The defendant Mrs. Mazique by deserting her husband, breached that condition * * *." Richardson v. Richardson, 72 App.D.C. 67, 112 F.2d 19, 21 (1940); Oxley v. Oxley, supra.

Where property is held solely in the name of one spouse, the other spouse must make a showing of a legal or equitable interest therein. Mere contribution to the maintenance of the household does not create an equitable interest. Wheeler v. Wheeler, 88 U.S.App. D.C. 193, 188 F.2d 31, 32 (1951).

In view of the fact that the appellant presented no evidence with respect to her contribution to any of the properties after the first few years of the marriage, while the evidence concerning the early years was in conflict, we cannot say that the trial court abused its discretion in the property award.

III

The next question presented by the appellant is whether the trial court erred in denying her alimony for her support. Under the District of Columbia Code, "when a divorce is granted on the application of the husband, the court may require him to pay alimony to the wife, if it seems just and proper." Title 16, D.C.Code, Section 913 (Supp. IV 1965). However, in Quarles v. Quarles, 86 U.S.App.D.C. 41, 179 F.2d 57, 58 (1949), we noted that "the trial court's determination of the propriety of the award under all the circumstances will not be disturbed, unless an abuse of discretion is made manifest by the record." Also in Quarles, we further stated:

"From the very nature of the problem, however, no fixed set of rules or formulae can be substituted for a careful study of the particular facts and circumstances in each case. Nevertheless, certain impelling factors of an equitable nature have always affected such awards. Among the facts have been: the duration of the marriage; the number and age of the children; the age and health of the parties; their respective economic conditions — both present and prospective; the wife\'s contributions to the accumulation of the husband\'s property; the circumstances under which the divorce was granted; the effect, if any, upon the family; and the

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