Rainey v. Rainey, 8136

• Decision Date: 02 November 1942
• Docket Number: 8137.,No. 8136,8136
• Citation: 76 US App. DC 341,131 F.2d 349
• Parties: RAINEY v. RAINEY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

76 US App. DC 341, 131 F.2d 349 (1942)

RAINEY v. RAINEY.

Nos. 8136, 8137.

United States Court of Appeals for the District of Columbia.

Decided November 2, 1942.

Mr. Francis J. Kelly, of Washington, D. C., submitted the case on the brief for appellant. Mr. Thomas J. Flynn, of Washington, D. C., was on the brief.

Messrs. Sumler R. Swancy and Alonzo Ware, both of Washington, D. C., entered appearances, but filed no brief, for appellee.

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

MILLER, Associate Justice.

On February 27, 1940, Hattie Rainey filed in the District Court her complaint for maintenance in Civil Action No. 5984, against Bennie Rainey. Thereafter, on June 7, 1940, Bennie Rainey filed in the District Court his complaint in Civil Action No. 7221 asking for an absolute divorce from Hattie Rainey. On June 17, 1941, the two cases were consolidated for trial. On September 11, 1941, a final decree was entered in Civil Action No. 7221 adjudging that "the allegations of the cause have been sustained by proof and the plaintiff, Bennie Rainey, be, and he hereby is granted a divorce a vinculo matrimonii from the defendant, Hattie Rainey, because of the desertion of the plaintiff by the defendant." On September 22, 1941, a decree was entered in Civil Action No. 5984 reading as follows: "This cause having come on for final hearing, consolidated with 7221 C. A. on September 9, 1941, testimony taken, and after consideration thereof it is this 22nd day of September, A. D., 1941 ordered and adjudged that said cause be and the same hereby is dismissed." Appeals were taken by Hattie Rainey in each of the two cases. No motion was made for consolidation in this court, but when the two appeals were reached on the hearing calendar, they were submitted together without argument.

Appellant relies upon the following points: "1. The decree granting divorce to the appellee was contrary to the pleadings in that the complaint alleged desertion in Washington, D. C. in April, 1938 and the lower Court found that the desertion occurred in New York at a later date. 2. There was no substantial evidence to sustain the decree granting divorce to the appellee or dismissing the complaint for maintenance. 3. The Court erred in not permiting counsel for the appellant to make a statement regarding the facts or the law at the conclusion of the evidence. 4. The Court erred in not making a finding of facts and conclusion of law. 5. The decree granting...