Oxley v. Oxley

• Citation: 159 F.2d 10,81 US App. DC 346
• Decision Date: 09 December 1946
• Docket Number: No. 9240.,9240.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Parties: OXLEY v. OXLEY.

81 US App. DC 346, 159 F.2d 10 (1946)

OXLEY v. OXLEY.

No. 9240.

United States Court of Appeals District of Columbia.

Argued November 15, 1946.

Decided December 9, 1946.

Mr. Joseph W. Heilman, of Washington, D. C., for appellant.

Mr. H. Clay Espey, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and WILBUR K. MILLER, Associate Justices.

WILBUR K. MILLER, Associate Justice.

Leo L. Oxley sued in the District of Columbia for a divorce a vinculo from his wife, Ann Morgan Oxley, a resident of Laurinburg, North Carolina, whom he had married in that state in 1933. He prayed for the custody of his two boys, respectively eleven and six years of age, who were with the mother. He prayed also that a dwelling house in the District of Columbia, held by his wife and himself in tenancy by the entirety, be awarded to him. Process was served on Ann Morgan in North Carolina.¹ She did not appear and was not represented, except by an attorney appointed by the court with whom she did not cooperate.

After their marriage, the Oxleys lived in North Carolina until 1935, when the husband obtained a position in and removed to Washington. Ann Morgan remained in North Carolina where she was employed as a teacher. Consequently their opportunities to be together were limited to week ends, summer vacations and other holidays.

In 1940, hoping to induce his wife to bring the boys to Washington and establish a family home, Oxley bought a house in the District of Columbia, taking title in both names as tenants by the entirety. The purchase price of $6,000.00 was represented by an existing first trust indebtedness of $4,500.00, the payment of which both assumed, and their joint promissory note for $1,500.00 secured by a second deed of trust. After thus acquiring the property, which was in a dilapidated condition, Oxley expended large sums of his own money in repairing and improving it. And with his own funds exclusively, he paid insurance premiums and taxes, made necessary repairs from time to time, and kept up the payments of interest and principal required by the two deeds of trust. No financial contribution was made by the wife toward acquiring, restoring or maintaining the property² and she took no part in meeting the obligations imposed by the trust deeds.

Oxley's hopes were not realized. His wife failed to come and bring the children to establish a home in the house so purchased. On the contrary, she grew more indifferent toward her husband and in 1942 wrongfully and unjustifiably abandoned him.

Having found the facts to be substantially as above, the District Court granted an absolute divorce to the husband. But it decreed that the custody of the children should remain with the mother, and it declined to award the sole ownership of the real estate to the husband. Oxley complains that the trial court erred in making any order concerning the custody of the children, since they and their mother were not in this jurisdiction, and in refusing to dissolve the tenancy by the entirety and to adjudge him entitled to the property.

Although the domicile of a wife ordinarily follows that of her husband, it is not so in this case. When Oxley left North Carolina in 1935, it was by agreement that his wife remained there and so her domicile remained in that state, despite the fact that he established a new domicile for himself in the District of Columbia.³ Title 21, § 101, District of Columbia Code (1940) provides that the father and mother shall be the natural guardians of the persons of their minor children. That being true, the father and mother are equally entitled to the custody of their infant children. In such circumstances, if the father and mother have separate domiciles, minor children take the domicile...