Schlaefer v. Schlaefer

• Decision Date: 05 February 1940
• Docket Number: No. 7277.,7277.
• Citation: 112 F.2d 177
• Parties: SCHLAEFER v. SCHLAEFER et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 F.2d 177 (1940)

SCHLAEFER v. SCHLAEFER et al.

No. 7277.

United States Court of Appeals for the District of Columbia.

Decided February 5, 1940.

Rehearing Denied March 18, 1940.

COPYRIGHT MATERIAL OMITTED

Vivian O. Hill, of Washington, D. C., for appellant.

Dorsey K. Offutt, Benjamin S. Minor, Arthur P. Drury, and John E. Powell, all of Washington, D. C., for appellees.

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

RUTLEDGE, Associate Justice.

Appellant secured a limited divorce from her husband, the individual appellee, in the District of Columbia November 2, 1934, when both parties were domiciled in the District. The decree required him to pay her $60 per month permanent alimony. Before it was entered he secured a Mexican divorce, characterized by appellant as a "mail order" one. Shortly thereafter he married another woman. He left the District December 20, 1934, as he claims with the intention of residing elsewhere permanently.

July 29, 1938, appellant filed her petition herein. She claimed that appellee was $160 in arrears in alimony payments, had reduced them to $40 per month in violation of the order and refused to pay more than that amount. In addition to other income, she alleged he receives $100 per month from appellee insurance company as disability benefit payments under two policies of insurance. She asked for sequestration of his property, its conversion into cash and application of the proceeds to pay arrears and future monthly instalments of $60 in alimony. Injunctions were sought to restrain the husband from receiving property or funds due him and the insurance company from paying over to him the disability benefits or other sums payable under the policies. The company, a foreign corporation alleged to be doing business in the District, was made a party defendant.

July 30, 1938, a rule issued to appellees to show cause why payments under the policies should not be sequestered and paid to appellant in accordance with her claim. Service of process was made on the company. On August 30, 1938, the individual appellee filed his "Special Appearance and Return," the first paragraph of which was in part as follows: "Comes now the defendant * * *, appearing specially and reserving his objections to the jurisdiction of this Court, and makes this return to the rule to show cause * * *, and answers and moves to dismiss the petition of the plaintiff * * *; and as grounds therefor defendant shows to the Court as follows: * * *" (Italics supplied)

The "return" alleged that appellee's domicil was then and had been since February 2, 1935, in California; that he was not then and had not been "since long prior to the institution of this sequestration proceeding, within the jurisdiction of this Honorable Court; that he does not now submit to the jurisdiction of this Court, but appears herein specially only, and submits this return, answer and motion to dismiss with full reservation of his objections to the jurisdiction of this Court of this proceeding or over his person." It then pleaded to the merits of the petition, admitting or denying substantive allegations and setting up new matter. It admitted receipt of the disability payments under the policies, and alleged that they did not constitute "debts" due appellee or "income" and that they are exempted specifically from process under Section 16a of the Life Insurance Act for the District of Columbia, Act of Congress of June 19, 1934, c. 672, 48 Stat. 1175, D.C.Code (Supp. IV 1938) tit. 5, sec. 220p. It asserted further that the disability payments "are not in any event, even when and if they accrue and become debts owed to defendant, payable to defendant in the District of Columbia and that they will not be debts due the defendant in the District of Columbia, but that, under the express provisions of the policies, such payments will become payable at the Home Office Newark, New Jersey of the Company."

Special grounds stated to support the motion to dismiss the petition were that it was "fatally defective" in failing to state facts tending to show that there was property of the appellee located within the District or the court's jurisdiction; in failing "to allege that any debt is owed to this defendant in the District of Columbia" by the insurance company or others; for showing "on its face * * * that the sums sought to be reached by sequestration and injunction are mere future contingencies, which may or may not ripen into debts owed to this defendant," and that they are "`disability benefit payments,' which are specifically exempted from the process of this Court by statute."

The "return and answer" was supported by appellee's affidavit tending to show establishment of his residence and legal domicil in California in 1935 and continued maintenance of them there since that time.

The insurance company answered the petition, setting forth facts, among others, concerning the issuance of the policies to appellee, and their terms, including the disability provisions; alleging that the policies provide for continuance of disability payments and waiver of premiums only during appellee's total and permanent disability and upon his making periodic proof that it continues; and asserting that such payments are not subject to sequestration herein: (1) because specifically exempted by statute; (2) "for the reason that said payments are not assets in existence at the time of the attempted sequestration, but on the contrary, that the obligation of making such payments is conditioned upon the compliance by the said Wallace Clayton Schlaefer with the conditions of the said policies;" and (3) because "this Court has no jurisdiction over such disability payments."

On consideration of "the motion * * * to dismiss the petition * * *" and of "the returns to the rule to show cause," the court found that the object of the proceeding was to sequester the disability payments and that they were "monies paid or agreed to be paid `on account of the disability from injury or sickness of any insured person,' within the meaning of" Section 16a. Its conclusions of law were that: "1. This proceeding is barred by Section 16a of the Life Insurance Act for the District of Columbia;" and "2. The petition should be dismissed for the want of jurisdiction to grant the relief prayed, and the rule to show cause should be dismissed by the Court." Accordingly, the petition was "dismissed" and the rule discharged. From this action the present appeal is brought.

I. The principal issues relate to the jurisdiction of the court and the applicability of Section 16a. It is not clear whether the court found itself lacking in jurisdiction of the persons of the defendants or in jurisdiction of the subject matter of the suit or in both.

We think the court had jurisdiction in both respects. No pretense is made that it failed to acquire jurisdiction of the person of the insurance company. It was "doing business" in the District, subject to process therein and properly served. As to the person of appellee Schlaefer, we think he has submitted to the court's jurisdiction by his voluntary appearance herein. It is true this was denominated in the caption "Special Appearance and Return," and that it specifically asserts that appellee appears only "specially * * * and with full reservation of his objections to the jurisdiction of this Court of this proceeding or over his person," as well as that "he does not now submit to the jurisdiction of this Court." Despite the "reservations" and denial of the court's power, the pleading went on to answer the allegations of the petition upon the merits, both as to matters of fact and matters of law, and moved for its dismissal. Allegations of the petition were admitted or denied and new matter was introduced in defense of appellee's reduction of the monthly payments. Special grounds were stated in support of the motion to dismiss, as set forth above. The alleged "Special Appearance and Return," therefore, attempted to combine in one pleading the following functions: (1) A special appearance in objection to the court's jurisdiction of the defendant's person; (2) an objection to the court's jurisdiction of the subject matter of the cause; (3) a return to the rule to show cause; (4) a motion to dismiss the petition; and (5) an answer to the petition on the merits, both as to fact and as to law.

Prior to September 16, 1938, when the new Federal Rules of Civil Procedure became effective, 28 U.S.C.A. following section 723c, it was established clearly in this jurisdiction that a defendant, by pleading to the merits before the court had ruled on his special appearance in objection to its jurisdiction of his person, waived his objection to the jurisdiction.¹ Likewise, it was well established in other jurisdictions that where pleadings or motions relating to the merits were mingled with the plea to the jurisdiction, the latter was waived and a general appearance resulted.² This rule received our approval in relation to actions at law in Manning v. Furr, 1933, 62 App.D.C. 281, 66 F.2d 807. But in Herzog v. Hubard, 1938, 68 App.D.C. 383, 98 F.2d 255, we reaffirmed our previous decision in Ryan v. McAdoo, 1917, 46 App. D.C. 117. In these cases we held that in proceedings in equity a rule should be applied which is different from that applicable at law under Manning v. Furr. Specifically the ruling was that a special appearance is not waived under former Equity Rule 29, 28 U.S.C.A. following section 723, by mingling with it defenses "in point of law arising upon the face of the bill." Neither case, however, extended the rule to a pleading which combines a special appearance with defenses not of that character. Objections of law arising on the face of the bill were required to be taken, under that rule, by motion to dismiss, others by answer. The purpose of the rule was to simplify the procedure and expedite the litigation in equity causes by...