Neuman v. Neuman, 9604.

• Decision Date: 18 August 1977
• Docket Number: No. 9604.,9604.
• Citation: 377 A.2d 393
• Parties: Emily Mann NEUMAN, Appellant, v. Robert Henry NEUMAN, Appellee.
• Court: D.C. Court of Appeals

377 A.2d 393

Emily Mann NEUMAN, Appellant, v. Robert Henry NEUMAN, Appellee.

No. 9604.

District of Columbia Court of Appeals.

Argued January 5, 1977.

Decided August 18, 1977.

COPYRIGHT MATERIAL OMITTED

Laura Sager of the bar of the State of New York, New York City, pro hac vice, by special leave of the court, with whom Jane Dolkart was on the brief, for appellant.

Charles H. Mayer, Washington, D. C., for appellee.

Before NEBEKER, YEAGLEY and MACK, Associate Judges.

NEBEKER, Associate Judge:

This case presents an initial question of estoppel regarding an attempted appeal in forma pauperis by the wife from a divorce decree in favor of the husband. He remarried after notice that her effort to appeal had been abandoned in the face of a challenge to pauper status. The prejudice in the case arises from failure of service of appellate court pleadings on counsel for the husband. While we generally would be free to dismiss an appeal under these circumstances, we find it necessary first to look to the nature of the issues sought to be raised. We hold that appellant is estopped to assert a legal challenge to the divorce decree and to the method of computing the property award. We will consider the challenge to the custody order respecting issue of the marriage, as the interest of the children is paramount and, in any event, involves considerations independent of the reason for estoppel. The judgment of the trial court is affirmed in that respect.

The first divorce action between the parties was commenced in May, 1973, by Emily Neuman's complaint for a limited divorce on the ground of cruelty. Following this action, Mrs. Neuman took their three children to Florida where she and they remained until September of 1973. In his answer to the complaint, Robert Neuman denied appellant's allegations of misconduct, counterclaimed for custody of the children, averred that his wife had left the marital home without justification, and that she had committed adultery on a number of occasions prior to her departure. After two and one-half days of trial, during which evidence of Emily Neuman's marital infidelity was introduced, a consent order was agreed upon by the parties. Pursuant to this order, Emily Neuman's action for a limited divorce was dismissed with prejudice and she waived her rights to alimony and support. Robert Neuman was to have custody of the children and the exclusive use of the marital home. Additionally, at Mr. Neuman's insistence, a provision was added barring Emily Neuman from entering the home except to pick up the children in the course of visitation. The order was agreed to by the parties and dated December 5, 1973. Mrs. Neuman agreed to the decree to avoid a finding that she was an unfit mother because of her extra-marital affairs.

On May 8, 1974, Robert Neuman sought an absolute divorce on the ground of his wife's desertion on May 3, 1973, and he also asked that he be awarded custody of the children and sole ownership of the marital home. On July 10, 1974, Emily Neuman filed an answer denying the allegations of desertion and claimed an interest in the marital property. Four months later, Mrs. Neuman filed a motion for psychiatric examination of the three children and the parties to assist in resolving the custody issue. The motion was denied when the case came on for trial. Following the trial, an absolute divorce was granted to Mr. Neuman on the ground of desertion and the marital property was awarded solely to him. Custody and visitation were ordered to continue as set out in the original consent order.

Mrs. Neuman contends that the trial court erred in granting the divorce on the ground of desertion since it was legally impossible for her to desert her husband in view of the consent order barring her return to the home. She also asserts error in the award of the marital home and furnishings to the husband. With respect to the custody of the children, it is Mrs. Neuman's view that honoring her request for a psychiatric examination was essential to proper resolution of that question.

The depth of our review now turns on the events that transpired in this court after notice of appeal. On February 25, 1975, the appellant, through counsel, lodged a timely motion for leave to appeal in forma pauperis. Under Rule 23(a), the Clerk of the trial court referred the motion to this court. Rule 23(a) is a modification of Rule 24, Federal Rules of Appellate Procedure, permitted by D.C. Code 1973, § 11-743, insofar as it removes the authority of the trial court to act on the forma pauperis motion. Therefore, unlike the procedures in the federal courts, the entitlement to appeal at public expense is initially determined by this court.

On March 7, 1975, Mr. Neuman, through counsel, filed an opposition to the motion containing a challenge to his wife's impecuniousness. On March 24, 1975, this court entered an order denying appellant's motion without prejudice to her making a more specific averment of poverty by way of a motion to reconsider. In early April of 1975, Mrs. Neuman timely filed a motion to reconsider the petition to proceed in forma pauperis. A challenge was made to these new assertions on an alleged discovery by Mr. Neuman that Mrs. Neuman was indeed quite gainfully employed contrary to her affidavit.¹ However, while the motion to reconsider was still pending, Mrs. Neuman filed a motion to withdraw her motion for reconsideration on April 28, 1975, stating that she had recently obtained employment. Service of this motion by mail was deficient, as will be discussed below. By separate letter to the Clerk, appellant also requested him to file the notice of appeal which was earlier lodged with the forma pauperis motion. However, a copy of that letter was not sent to Mr. Neuman's counsel. The motion to withdraw the request to reconsider the earlier denial did not contain an expression of intent to prosecute the appeal though, arguably, it might have been interpreted that way. Unexplained is why the request and the statement of intent contained in the letter were not made a part of the motion or the subject of a separate motion.

In support of his motion to dismiss the appeal, counsel for Mr. Neuman informed this court at oral argument that he did not receive the motion to withdraw until sometime after he had received the order of this court stating that pursuant to that motion the application for appeal at public expense was deemed withdrawn. Upon receipt of that order, counsel for Mr. Neuman viewed the decree of divorce to be final as efforts at appeal were closed. He thus advised Mr. Neuman that he was free to remarry because Neuman had earlier expressed a desire to do so when he could. We are told that Mr. Neuman thereupon remarried. subsequently, the motion to withdraw was received by counsel. In light of this sequence of events it is not relevant to decide whether the wording of that motion, in the absence of receipt of the letter, might arguably have implied a desire to proceed independently of the forma pauperis effort.

Counsel for Mr. Neuman further advised this court that, consistent with the late arrival of the motion to withdraw, he had received other pleadings in a tardy fashion. Although the certificate of service on those pleadings was dated the same as when they were filed, the postmark was substantially later but followed with prompt mail delivery. He also informed the court of a conversation with Mrs. Neuman's counsel wherein he brought this tardiness in service to her attention. Her response acknowledged that she was a full-time faculty member of a local law school and that she had used the campus mail as a depository for pleadings mailed to counsel, no doubt delaying substantially their ultimate deposit in the United States mail. There has been no challenge to these assertions and we have no reason to believe that all counsel have been anything but truthful and candid respecting these events.

In the present appeal, appellant does not contend that she wishes to attempt a reconciliation with her former spouse. Instead, she merely seeks to have the decree of divorce set aside, a more favorable division of the marital property, and a change in the custody of the children. It must be remembered, however, that divorce proceedings involve public interests as well as private rights and when the interests of an innocent third party are involved, courts should take great care to see that a former divorce decree is not lightly set aside. Curry v. Curry, 65 App.D.C. 47, 48-49, 79 F.2d 172, 173-74 (1935).

On several occasions, the courts of this jurisdiction have declined to vacate a divorce decree by applying the principle of equitable estoppel. Clagett v. King, D.C. App., 308 A.2d 245 (1973); Saul v. Saul, 74 App.D.C. 287, 122 F.2d 64 (1941). Concededly, a central consideration in those cases was that a party who had actively participated in the procurement of the decree should not later be permitted to attack its validity. However, the relevance of the estoppel concept in those cases can be seen in the context of this case when the interest of innocent third parties is focused upon. In determining whether to apply the bar of equitable estoppel, a court "must consider all the factors of the particular case at bar, the parties involved, the effect of the ultimate decision on third parties who are not before the court, the nature of the rights sought to be vindicated and, as well, public policy as expressed by pertinent statutes and prior judicial declarations." Sears v. Sears, 110 U.S.App.D.C. 407, 410, 293 F.2d 884, 887 (1961).

An examination of judicial decisions in other jurisdictions reveals a concern for the interests of innocent third parties that is in accordance with the concern expressed in the decisions of this jurisdiction. In upholding the validity of a divorce that was procured through perjury on the part of the husband, the New Jersey court held that the possibility of...