Scholl v. Scholl

• Decision Date: 17 December 1945
• Docket Number: No. 8992.,8992.
• Parties: SCHOLL v. SCHOLL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 292, 152 F.2d 672 (1945)

SCHOLL v. SCHOLL.

No. 8992.

United States Court of Appeals District of Columbia.

Argued November 23, 1945.

Decided December 17, 1945.

Mr. Arthur G. Lambert, of Washington, D. C., with whom Mr. Benjamin L. Tepper, of Washington, D. C., was on the brief, for appellant.

Mr. Jacob N. Halper, of Washington, D. C., with whom Mr. Jack Politz, of Washington, D. C., was on the brief, for appellee.

Before EDGERTON, CLARK, and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

Walter Scholl was plaintiff below. His complaint contained six paragraphs. He alleged that he had been married to Dorothy F. Scholl; that she had deserted him, the desertion continuing for more than two years; that she had sued him for limited divorce on grounds of cruelty, and that after a hearing on the merits, the District Court, on November 15, 1939, had dismissed her complaint. The sixth paragraph of the present complaint reads as follows:

"6. That a piece of property located at 4722 47th Street, N. W., Washington, D. C., is listed in the plaintiff's and defendant's names as joint owners; that the plaintiff herein has contributed all of the monies for the purchase of said property; that pendente lite in the previous divorce action, the defendant herein was permitted to live in said house; that upon the dismissal of her complaint, the defendant herein refused to permit the plaintiff herein to live with her in said house or permit him to reenter or occupy the same; that in, to wit, September, 1940, the defendant herein ceased to occupy the premises and that persons unknown to the plaintiff have occupied said premises since said date under the alleged authority of a lease from the said defendant and have refused to relinquish said premises on the demand of the plaintiff; that when the defendant herein left the premises she removed all of the furniture and household effects which were purchased by the plaintiff herein and that the plaintiff herein has no knowledge as to their whereabouts."

Plaintiff prayed for an absolute divorce, for custody of the minor child and for permission pendente lite to occupy and use the premises at 4722-47th Street, Northwest. He then prayed:

"4. That the joint tenancy of the plaintiff and defendant in the property located at 4722 47th Street, N. W., Washington, D. C., be dissolved and that the said property be awarded absolutely to the plaintiff herein.

"5. And for such other and further relief as to the Court may seem just and proper."

In reply to the above paragraph 6 of the complaint, the defendant Dorothy F. Scholl, the present appellant pleaded as follows:

"6. The defendant admits that title to premises number 4722 47th Street, N. W., located in the District of Columbia, stands in both the names of the plaintiff and the defendant; the defendant denies that the plaintiff paid the sole consideration therefor or that he contributed all of the money for the purchase of the same. Defendant states that she expended money for the maintenance of the property, paid interest on the mortgage and other incidental expenses connected therewith out of earnings in her profession as aforementioned. The defendant states further that inasmuch as the plaintiff made no contribution whatever toward her support or the support of their minor child, he, the plaintiff, agreed with the defendant that she might occupy the aforementioned premises, together with their son."

The defendant further pleaded that by decree properly entered in Florida, five months before the pending action was commenced, she had been granted an absolute divorce from the plaintiff and custody of the child.

By order of the District Court,¹ entered in the present proceeding, with the consent of counsel for both parties, counsel for Dorothy F. Scholl were directed to hold the monies collected as rents from the tenants of the property "until final disposition of the divorce proceedings."

The action came to trial. Walter Scholl testified concerning the furniture, in addition to other matters, and was cross-examined, briefly, on the subject. The court found that the parties had been divorced in Florida in February, 1941, five months prior to the commencement of the pending action. It made the following findings of fact concerning the property, the rents therefrom and the furniture:

"11. The plaintiff paid all monies for the purchase of the property, 4722-47th Street, N. W., in the District of Columbia, and all monies for interest and taxes and necessary expenditures amounting to $550.00 as of November, 1943, for the upkeep of said property, with the exception of certain monies that were paid out of the rents collected while Mrs. Scholl was permitted to live in the house during the pendency of Equity Case 65,515 and other expenditures since Mrs. Scholl left the premises, 4722-47th Street, N. W. The rents collected from said property are now being held in trust by counsel for the defendant under orders of the Court.

"The plaintiff has not been permitted to live in the house or get into the house, although as a fact the court finds he has made every effort to keep the property in good condition and keep the taxes and interest up to date.

"Further, the plaintiff has conclusively proven to the Court that he was the sole purchaser of the said property and the plaintiff placed the property in the name of Mrs. Scholl and himself by reason of their marital relationship, but there was no other consideration for placing the property in both names. However, the title to said property is vested in both parties as tenants by the entirety.

"The Court further finds that the plaintiff purchased all of the furniture for their residence amounting to $1260.00 and this furniture was sold by the defendant when she disappeared in September, 1940."

Upon these findings, the court dismissed without prejudice the action for divorce, and reached the following conclusion in respect to the monies and the furniture:

"5. The monies held in trust by counsel for the defendant are to be divided equally between plaintiff and defendant after first paying all current taxes and interest due on the property, 4722-47th Street, N. W., and after making to the plaintiff therefrom an allowance of $275.00, which sum represents one-half of monies advanced by him for the payment of interest and taxes on the property. The defendant's share of said fund will, however, be encumbered with the payment to plaintiff of the amount of $1260.00, representing the value of plaintiff's furniture sold by the defendant, for which judgment will be entered."

The sole question before this court is whether the District Court had power and jurisdiction to enter the judgment which it entered concerning the monies and the furniture.

The complaint, as quoted above, pleaded in respect to the ownership of the house, its occupancy and plaintiff's ownership and defendant's removal of the furniture. The answer admitted in part and denied in part the averments respecting the house and its occupancy but neither admitted nor denied the averments concerning the furniture. These latter must, therefore, be taken as admitted. Rule 8(d), Fed. Rules Civ.Proc., 28 U.S.C.A. following section 723c. Testimony on these issues was taken, without objection to the taking.²

The ownership of the house, the proceeds from its occupancy, and the disposition of the furniture were clearly issues in the case. Appellant contends that these issues were present and the corresponding testimony was pertinent only in contemplation of the possibility that a decree of divorce might be entered. She says that a decree of divorce having been denied, the court was without power to enter judgment as to the house, the rents or the furniture. She relies upon the section of the District Code which provides:

"Upon the entry of a final decree of annulment or divorce a vinculo, in the absence of a valid antenuptial or postnuptial agreement in relation thereto, all property rights of the parties in joint tenancy or tenancy by the entirety shall stand dissolved and the court, in the same proceeding in which such decree is entered, shall have power and jurisdiction to award such property to the one lawfully entitled thereto or to apportion the same in such manner as shall seem equitable, just, and reasonable." D.C.Code 1940, § 16 — 409.

Appellant contends that the foregoing provision of the Code, read in conjunction with the common law rule prohibiting the division of property between husband and wife,³ is, by implication, a prohibition against a decree concerning property in a proceeding for divorce unless the final decree grants a divorce.

We are not required in this case to decide whether a decree awarding property theretofore held in joint tenancy or tenancy by the entirety can be entered in an action for divorce if a final decree of divorce is denied leaving the parties as husband and wife. In the case before us, the court found that the parties had already been divorced and were not husband and wife when they came before the court in this proceeding. Therefore, the question here is whether the...