Pedersen v. Pedersen

• Decision Date: 14 August 1939
• Docket Number: No. 7318.,7318.
• Citation: 107 F.2d 227,71 App. DC 26
• Parties: PEDERSEN v. PEDERSEN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

71 App. DC 26, 107 F.2d 227 (1939)

PEDERSEN v. PEDERSEN.

No. 7318.

United States Court of Appeals for the District of Columbia.

Decided August 14, 1939.

Alfred M. Schwartz and Samuel A. Friedman, both of Washington, D. C., for appellant.

Jean M. Boardman, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

This is a special appeal from an order of the District Court denying, on November 7, 1938, appellant's motion for maintenance and counsel fees pendente lite, made in her suit for a limited divorce from appellee begun October 19, 1938. The application was heard entirely upon the record, each party having filed an affidavit according to usual practice. On March 2, 1939, appellant also filed here her petition for maintenance pending appeal, to which answer has been filed. The answer shows that on January 3, 1939, the court ordered appellee to pay, and he has paid, $300 for costs and expenses of this appeal and counsel fees.

As is admitted, the award of support and counsel fees pendente lite ordinarily is a matter for the trial court's discretion in the first instance, and its judgment will not be disturbed except by a clear showing of abuse of discretion.¹ Appellant contends and appellee denies that such abuse exists here.

The order does not disclose the grounds upon which it was made, stating merely that "it is not a proper case for the allowance of maintenance or counsel fees pendente lite." The conclusion concerning counsel fees has been modified by the court's subsequent action awarding fees for prosecution of this appeal. It is not contended that the bill does not state a cause of action.² The only arguments made in support of the order are: (1) that appellant is precluded from this relief by the fact that the parties admittedly have lived in the same dwelling since prior to the filing of the bill; (2) that appellee is furnishing adequate support to appellant, and therefore the court has discretion, which it has exercised, to deny an award. Appellant says the first contention is contrary to law, asserts she is receiving grossly inadequate support, and that the court's refusal to award further support is an abuse of its discretion. We must assume, in the absence of other contentions, that the order was based on one or both of those presented to us. A summary of the facts will be helpful in determining the issues.

Appellee is a patent lawyer, in comfortable financial circumstances, with substantial income from his profession and from securities owned by him.³ He has followed life-long habits of thrift, saving one-third or more of his income prior to his marriage to appellant in Copenhagen, Denmark, in 1933, and apparently thereafter, at least since 1935. He and appellant were fifty-one and forty-eight years of age, respectively, when the bill was filed. The record does not state clearly whether appellant was a resident of Denmark prior to the marriage. It does not indicate that she has relatives in this country. She has no income or funds of her own, and no, or little, earning capacity.

Inevitable adjustments required by comparatively late marriage, coupled with and arising particularly from differences regarding money matters, apparently became serious shortly after July, 1935, when appellee purchased a home and had title placed in the parties in tenancy by the entirety.⁴ The bill alleges, and it is not denied,⁵ that shortly following the purchase appellee told appellant he regretted placing title jointly; threatened to allow foreclosure if she did not reconvey her interest to him, and has been attempting since her refusal to compel her to leave him; has told her repeatedly he hopes for an early separation, and that she should get out of the house.

Beginning with these incidents, the contention appears to have gathered volume constantly, reaching a climax in the latter part of September, 1938, following the return of the parties from an extended vacation by automobile in Canada. Appellee has kept a tight hold on the purse, handling all money except such as he has seen fit to hand over to his wife, forbidding charge accounts and insisting on cash purchases only, which recently he has made himself, and dictating many matters of household management ordinarily regarded as the province of the wife.⁶ Extreme financial urgency might justify insistence upon drastic reduction of expenditures, but no showing of such a situation is made here.⁷ In short, appellee has regarded all financial matters, including those of expenditure for household needs and personal expenses of living, both for himself and for appellant, as peculiarly and almost exclusively his province, going on the "hand-out" theory of marriage, by which the wife's part is to receive, without complaint and gratefully, exactly what the husband wishes to give her and no more, having no voice in the selection or quantity, beyond the limit placed by him, of the things essential to living.

Appellant alleges that since September, 1938, the parties have "been living separate and apart without cohabitation", though sharing the same roof, which is owned by them jointly. They occupy separate bedrooms and eat separately, each preparing the food he or she consumes, which is selected, purchased and brought into the house by appellee. The bill alleges, without denial, that on September 15, 1938, appellee ordered appellant out of the kitchen and since that time has declined to allow her to cook any meals for him, but insists upon cooking his own meals.⁸ Such association and conversation as occur between them are hostile and acrimonious, each charging the other with constant criticism, nagging, et cetera.

In addition to the shelter of the home and the food brought in by appellee, appellant has received small sums of money from him, handed out in cash a dollar or two at a time, aggregating about $3 a week from September 15 to the date of the order, and since then, as shown by the petition and answer filed here, checks for $5 weekly, with occasional omissions. From these sums appellant has had to supply her clothing, the maid's pay until her discharge, transportation, medical supplies and other necessaries of living in a modern city.

This suit is for a limited divorce and alimony, temporary and permanent, or in the alternative, as stated in the briefs, for separate maintenance of the wife under the Code.⁹ The two causes of action are distinct not only in the nature of the relief sought, but also in the statutory causes for which it may be granted. We need not decide whether they can be joined alternatively in a single bill, or whether the bill states a cause of action for separate maintenance. The issues before us arise on an application for support, suit money and counsel fees pendente lite. Although the briefs appear to regard such an application as appropriate either in a suit for divorce or in one for separate maintenance, the statute D.C.Code (1929) tit. 14, § 70 purports to authorize an award pendente lite only as incident to a suit for divorce or one for annulment. It makes no provision for such an award as incident to a suit for separate maintenance under Section 75 of the same title, nor does that section purport to do so. The question was not presented or argued whether a temporary award can be made as incident to a suit solely for separate maintenance and pending the final determination of such a suit. In the absence of a specific presentation of the question, we do not determine it, and therefore treat the application made below and the order on appeal here as being made solely pursuant to Section 70, as incident to the suit for limited divorce.

In such a proceeding, of course, a sufficient degree of separation or living apart must be maintained from the time of the acts constituting the grounds alleged for divorce to avoid condonation. But we do not regard living under separate roofs as a sine qua non for this purpose, or consequently, for the relief asked here. Ordinarily, of course, husband and wife who have reached the parting of the ways will not continue to live in the same house. But there are circumstances in which no other abode is available, practically speaking,¹⁰ to a helpless and deserted or abused wife. To compel her, in order to avoid condoning her husband's offense or submitting absolutely to his hostile will in the matter of her maintenance, to leave the only shelter she has, particularly when she owns it absolutely or equally with him,¹¹ would be both unjust and contrary to settled law. She is not required to forego shelter in order to obtain food. Nor is she compelled, in asserting her rights, to surrender the possession of her property or convey it to her husband. Continued residence in the same dwelling is one fact which is evidentiary on the question whether the parties live together as husband and wife.¹² It is not, in and of itself, a criterion. We have no statute which requires "living separate and apart" as a condition either of divorce or of maintenance.¹³ In the absence of a statute requiring more,¹⁴ we think all that is required of the wife is that she so segregate herself from her husband as to avoid condoning the acts which she charges as the basis for the divorce or other relief she seeks. To do this, the essential thing is not separate roofs, but separated lives — that the parties so live, whether under one roof or two, as to abandon, with apparent permanency of intention,¹⁵ the relation of husband and wife in all but the most technical legal sense.¹⁶ Men and women may live as strangers, even as enemies, more separately, more contentiously, more violently, under a single roof than under two. Continued occupancy of the same house may be evidentiary either of harmonious or at least not disrupted matrimonial relations or of compelling necessity on the part of one or both of the parties. Generally, and in the absence of...