Meredith v. Meredith

• Decision Date: 07 July 1955
• Docket Number: No. 11310.,11310.
• Citation: Meredith v. Meredith, 226 F.2d 257, 96 U.S.App.D.C. 355 (D.C. Cir. 1955)
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: Kathryn W. MEREDITH, Appellant, v. Richard H. MEREDITH, Appellee.

96 US App. DC 355, 226 F.2d 257 (1955)

Kathryn W. MEREDITH, Appellant, v.Richard H. MEREDITH, Appellee.

No. 11310.

United States Court of Appeals District of Columbia Circuit.

Reargued March 29, 1955.

Decided July 7, 1955.

Mr. Charles F. O'Neall, Washington, D. C., with whom Mr. W. Byron Sorrell, Washington, D. C., was on the brief, for appellant.

Mr. Alvin L. Newmyer, Washington, D. C., with whom Mr. Alvin L. Newmyer, Jr., Washington, D. C., was on the brief, for appellee.Mr. Armand Newmyer, Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, PRETTYMAN and WILBUR K. MILLER, Circuit Judges.

PRETTYMAN, Circuit Judge.

This case is before us after rehearing.On April 9, 1953, this court affirmed an order of the District Court which had dismissed a counter-claim of appellant wife for separate maintenance.¹A petition for rehearing was filed.While that petition was pending the case of Hopson v. Hopson was heard by the court sitting en banc.On January 20, 1955, the opinion and decision of the court in the Hopson case was promulgated.²Rehearing was then ordered and held in the case at bar.The decision in Hopson makes necessary that the former decision in the present case be reversed.

In April, 1950, both Mr. and Mrs. Meredith were residents of the District of Columbia.The husband, in that month, filed a complaint for absolute divorce.Later that year he moved to dismiss his complaint, on the ground that he had moved to Texas and was no longer resident here.The court granted the motion but permitted the wife to file a counter-claim for separate maintenance.That counter-claim was filed September 1, 1950.Thus the situation at that point was that a claim for maintenance had been filed by the wife in an action brought by the husband in the District of Columbia while both parties were resident here.

In August, 1951, the husband filed a complaint for divorce in Texas and secured a decree there.The wife did not appear in the Texas proceeding, either personally or by attorney, and the decree made no mention of alimony or maintenance.Thereafter the wife's claim for maintenance, then pending in the District Court here, was tried and was dismissed on the ground that the Texas divorce decree had made the action moot.

The reasoning of Hopson v. Hopson can be stated quite simply.The Supreme Court has held in recent years that the contract of marriage is not a single, indivisible entity but embodies a bundle of rights which are divisible.These include the rights sometimes called "consortium" and also rights to maintenance, alimony, and the custody of children.The Court has held that the marital status as such and the rights of consortium can be terminated by a court which has jurisdiction over either of the parties.³Then the Court has held⁴ that the right to maintenance is a personal financial right and⁵ the right to custody of children is similar to it.But no court has power to deprive a person of a personal right unless it has jurisdiction over him.In Estin v. Estinthe Court said:⁶

"But we are aware of no power which the State of domicile of the debtor has to determine the personal rights of the creditor in the intangible unless the creditor has been personally served or appears in the proceeding.The existence of any such power has been repeatedly denied.Pennoyer v. Neff, 95 U.S. 71424 L.Ed. 565;Hart v. Sansom, 110 U.S. 1513 S.Ct. 586, 28 L.Ed. 101;New York Life Ins. Co. v. Dunlevy, 241 U.S. 51836 S.Ct. 613, 60 L.Ed. 1140."

Pennoyer v. Neff had established in 1878 that, where the object of an action is to determine personal rights and obligations of defendants, constructive service upon a nonresident is ineffectual for any purpose.There has been no departure from that rule.

Thus the Supreme Court has taught us that the mere marital status, as such, and the rights of consortium can be dissolved by a court having jurisdiction over the plaintiff spouse, but that personal rights of a financial nature, and the corresponding obligations thereunder, can be adjudicated only by a court having jurisdiction over the defendant.To understand the rules resulting from this series of cases one has only to read the vivid and vigorous dissent of Mr. Justice Jackson in Rice v. Rice.⁷

In Hopson v. Hopson we merely applied the principles of the Supreme Courtcases above referred to.We must do the same here.It follows that the Texas decree, even though valid as to the marital status of the Merediths and the consortium rights of both spouses, could not destroy Mrs. Meredith's right to claim maintenance, a financial right.Her claim to maintenance was filed in the District of Columbia in an action in which the court here had jurisdiction over the husband because he had brought the action.The Texas court had no jurisdiction over the wife and so could not deprive her of this financial right.It was therefore error for the District Court to dismiss the claim to maintenance as moot because of the Texas decree.

Sometimes, obviously, the fact that a plaintiff woman is, or is not, presently the wife of the defendant man may be among the equitable considerations which are relevant and material to the issue of maintenance.For example, a long delay in bringing the action may present one problem if the woman is still the wife and another problem if she has not been the wife for the years of the delay; and circumstances attending a prior divorce action — for example, the wife's knowledge, acquiescence, conduct, etc. — may bear upon her later claim to equitable relief.And so in some circumstances the validity of a prior divorce may be among the pertinent equitable considerations upon the trial of an action for maintenance.Hopson so teaches but warns that such collateral attacks upon divorces ought not to be permitted unless necessary.In the case at bar Mrs. Meredith's claim was filed before her husband's action in Texas was filed and while she was his wife.Whether the Texas divorce was valid or invalid would thus appear to be immaterial to her claim to maintenance; the circumstances surrounding the divorce, her course of action in regard to it, etc., may be material to her claims upon equity.

There is in the District of Columbiaa statute⁸ which provides in effect that any "husband" who fails to provide maintenance may be ordered to pay it.The statute is mentioned in many opinions in this field.It is sometimes argued that when a man is not a "husband"he has no obligation to support his wife or children.The point is not pertinent here, because Mr. Meredith was the husband when the claim to maintenance was filed against him.But we point out again, as we did in the former opinion in this case, that this court has long and many times held that equity will compel a father to support his children and his wife quite apart from apparent restrictions in the statute.In our former opinion in this casewe cited cases from 1893, 1903 and 1917 down to 1944 and 1953.Hopson held to that view, and we continue to adhere to it.

Reversed and remanded for further proceedings in accordance with this opinion.

WILBUR K. MILLER, Circuit Judge (dissenting).

This litigation began August 7, 1948, when Dr. Richard H. Meredith sued in the United States District Court for the District of Columbia for a limited divorce.He also prayed that his wife be restrained and enjoined from threatening, harassing and interfering with him.The District Court found on September 30, 1948, following a hearing, that after the complaint was filed Mrs. Meredith had threatened her husband and his mother and sister with bodily harm and had harassed him in his professional practice; accordingly a preliminary injunction was issued against the continuance of such conduct.A consent order for monthly alimony pendente lite in the sum of $200 was entered October 29, 1949, and the allowance was later reduced to $100.

April 6, 1950, Meredith amended his complaint, seeking an absolute divorce on the ground of desertion for two years.About the first of July, 1950, he removed to San Antonio, Texas, where he still resides, as far as I know.Apparently because of that removal, Dr. Meredith filed a motion in the District Court here July 13, 1950, to dismiss "the above cause without prejudice pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure."The motion was granted August 21, 1950, with leave to Mrs. Meredith to file within 20 days "a counter-claim in the above captioned action for separate maintenance * * *"¹

Thus the District Court apparently dismissed the action and yet provided that thereafter a counter-claim might be filed.I do not believe such procedure is authorized by Rule 41(a)(2),28 U.S.C.A.The result is that Mrs. Meredith's counterclaim for separate maintenance filed September 1, 1950, was filed in an action which had theretofore been dismissed.Perhaps the filing of the so-called counter-claim may properly be regarded as the institution of an independent action for separate maintenance.Without pressing the procedural point, I shall discuss the case as though the District Court actually had before it a claim for separate maintenance.

When the purported counter-claim came on for final hearing in the District CourtOctober 3, 1951, Dr. Meredith filed a certified copy of a decree of absolute divorce which had been granted him by a Texas courtAugust 27, 1951, more than a year after he had established his residence in San Antonio.Because of the Texas divorce, Judge Holtzoff held the District Court here had no jurisdiction to grant separate maintenance and dismissed the claim therefor.This appeal is from that ruling.

In reversing, this court holds that, despite the undoubted jurisdiction of the Texas court and the consequent validity of its decree, the District Court here may subsequently award separate maintenance to the former wife on her claim thereto, which may have been pending but certainly had not...