Oatley v. Oatley

• Decision Date: 15 June 1960
• Docket Number: No. 2547.,2547.
• Citation: 161 A.2d 834
• Parties: Walter A. OATLEY, Appellant, v. May Rose OATLEY, Appellee.
• Court: D.C. Court of Appeals

161 A.2d 834

Walter A. OATLEY, Appellant, v. May Rose OATLEY, Appellee.

No. 2547.

Municipal Court of Appeals for the District of Columbia.

Argued April 11, 1960.

Decided June 15, 1960.

S. Jay McCathran, Jr., Washington, D. C., for appellant.

Arthur E. Neuman, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The parties were married in 1939 and have experienced considerable marital difficulties since then. As a result they have not lived together for a good part of their married life. The husband, appellant here, came to this jurisdiction and became a resident in May 1958. In June 1959 he sued for absolute divorce on two grounds, desertion and five years voluntary separation.¹ He claims that the separation commenced in June 1954 and terminated in June 1959, and that the desertion commenced in July 1956 and terminated in July 1958.

The court granted an oral motion to dismiss the complaint because the initial act of the parties in ceasing to cohabit with one another had occurred outside the District of Columbia and prior to residency herein; the court ruled that in this situation appellant was required to establish two years residency before he could maintain the action.² The question presented on this appeal is whether voluntary separation or desertion as a basis for divorce occurs, within the meaning of the statute, when the parties initially separate or when the time element required by the statute lapses.

The key phrase in the statute is that requiring two years residency before a divorce may be granted "for any cause which shall have occurred" out of this District. If given a literal meaning, a cause is the separate antecedent of an event, or that which produces an effect. In this sense the cause of separation or desertion can be construed as the physical act of one party leaving the other. But this is clearly not its meaning as used in the statute. Rather, it is there synonymous with the judicial concept of a suit or action in its entirety. The related event or resulting product is the right to maintain an action for divorce for one of the reasons enumerated elsewhere in the Code.

Thus, if the cause is the action itself or the right to maintain the action, it must next be determined when such cause has occurred, for if it happens subsequent to removal to this jurisdiction a plaintiff need show a residency of but one year. It is settled that these exclusionary provisions are in the conjunctive; that the cause must have occurred both outside the District and prior to residency herein before the longer period is effective. Orlans v. Orlans, 99 U.S.App.D.C. 170, 238 F.2d 31.

There is no difficulty in determining when a right of action based on adultery occurs. That act is specifically referable to a certain time and place. Unlike separation or desertion the physical act of adultery immediately gives rise to the cause or right of action; the cause is perfected in the very act. But separation and desertion are continuing acts; the cause — the right of action — incident to them is not perfected until the required period of time has elapsed. Until that has run no rights can be predicated on the mere physical act of one party leaving the other. Indeed, some event may stay the running of the time so that no right of action ever matures. The time requirement, then, is jurisdictional; no right of action can arise unless it, along with all the other elements of the action, is fulfilled.³ To phrase it otherwise, for our purposes, no cause can occur until all the requirements are met.

This interpretation is borne out by the words of the court in Blandy v. Blandy, 20 App.D.C. 535, 538, where the very phrase in issue here was under consideration. The court there said:

"[T]hough the breach of the marital relation occurs when the one party separates from and wilfully abandons the other, * * * yet the right to a divorce for the breach of such marital relation is not complete until the expiration of the period fixed by the statute."

We believe the right referred to there is the cause, or the right of action as we have characterized it; and that right...