Scholla v. Scholla, 11267

Citation201 F.2d 211,92 US App. DC 9
Decision Date08 January 1953
Docket NumberNo. 11267,11268.,11267
PartiesSCHOLLA v. SCHOLLA (two cases).
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Frederick A. Ballard, Washington, D. C., with whom Eugene B. Thomas, Jr., Washington, D. C., was on the brief, for Lois T. Scholla.

Elizabeth R. Young, Washington, D. C., for Paul F. Scholla.

Before CLARK, PROCTOR and WASHINGTON, Circuit Judges.

Petition for Rehearing in No. 11267 Denied January 26, 1953.

PROCTOR, Circuit Judge.

These are cross-appeals from an order of the District Court dismissing the complaint (11268) and allowing a fee to the attorney for plaintiffs (11267).

Lois T. Scholla, as next friend for her minor children Paul and Barbara, sued Paul F. Scholla, her divorced husband and father of said children. The complaint revealed the following facts. Mrs. Scholla and the children, Paul and Barbara, resided together in Virginia, and Mr. Scholla, defendant, resided in the District of Columbia. By decree of the Circuit Court of Lake County, Florida, May 20, 1949, Mrs. Scholla was granted an absolute divorce and custody of the couple's three children, Paul and Barbara, plaintiffs, and Sandra, now living with her father. The decree also allowed $250 monthly, payable to Mrs. Scholla for support of herself and the children. The defendant has made no payments since January, 1951, leaving Mrs. Scholla and the children Paul and Barbara dependent upon Mrs. Scholla's inadequate earnings as a Government employee, although Mr. Scholla's income exceeds $1000 per month. After the divorce he remarried and has one child by his present wife. In behalf of the children Paul and Barbara, though not for herself, Mrs. Scholla prayed for a reasonable monthly allowance for their maintenance. In her own behalf she sought judgment for $500, accrued installments under the Florida decree. She also asked for costs and counsel fees. A true copy of the Florida decree was exhibited with the complaint.

The defendant moved to dismiss the complaint. The court granted the motion. It held that the children, as nonresidents, were precluded from suing for maintenance in the District of Columbia, hence that the court was without jurisdiction to entertain their action. In this we think the court erred. According to the complaint the father is a resident of the District of Columbia. The suit for maintenance is a personal, transitory action. Vertner v. Vertner, 1934, 63 App.D.C. 179, 70 F.2d 783. See Melvin v. Melvin, 1942, 76 U.S.App.D.C. 56, 58, 129 F.2d 39, 41, (concurring opinion of Judge Stephens). The complaint invokes the general equity power of the court to grant maintenance to the children. Schneider v. Schneider, 1944, 78 U.S.App.D.C. 383, 141 F.2d 542; Wedderburn v. Wedderburn, 1917, 46 App.D.C. 149. In view of the father's residence in the District of Columbia, the children were entitled to sue him therein, notwithstanding their own residence in Virginia. The District of Columbia Code makes that clear. It provides that the District Court shall have cognizance "of all cases in law and equity between parties, both or either of which shall be resident or be found within said district." (Emphasis added.) 11 D.C.Code § 306, 1951.

The court also ruled that in view of the Florida decree the only remedy in behalf of the children was by suit in debt for the amount of accrued installments. Thus in effect the court held that the Florida decree was res judicata. We agree with that conclusion. This, however, is not to say, as has been argued, that the District Court lacked jurisdiction of the subject matter. For, we have pointed out that the court did have the power to compel a father to support his minor children. So the power could have been exercised in the present case except for the fact, shown by the complaint itself, that maintenance for the children had been adjudicated by the Florida court. Yet, res judicata does not create a jurisdictional bar. It operates only by way of estoppel. Baltimore S. S. Co. v. Phillips, 1927, 274 U.S. 316, 47 S.Ct. 600, 71 L.Ed. 1069; Aurora City v. West, 1868, 7 Wall. 82, 19 L.Ed. 42. Hence it is an affirmative defense, which ordinarily must be pleaded by a defendant. Fed.R. Civ.P. 8(c), 28 U.S.C. But as the Florida decree was fully set forth in the complaint, the court, in acting upon the motion to dismiss, was justified in taking note of the decree and dismissing the complaint because of it. W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, Inc., 2 Cir., 1951, 186 F.2d 236.

However, in dealing with the doctrine of res judicata in relation to this action for maintenance, perhaps we should point out that there is some authority to sustain a suit for alimony or maintenance notwithstanding the existence of a valid decree in another jurisdiction. Ambrose v. Ambrose, 1951, 200 Misc. 595, 102 N.Y.S.2d 837; Conwell v. Conwell, 1949, 3 N.J. 266, 69 A.2d 712; James v. James, Dom.Rel.Ct. 1946, 59 N.Y.S.2d 460. A study of these cases indicates that without disregarding the doctrine of res judicata, they extended relief upon the basis of a material change in circumstances of the parties, sufficient to have legally justified modification of the terms of the existing decree by the court which entered it. The theory upon which these decisions rest is that alteration of conditions warranting modification of a decree for alimony or maintenance produces factual issues for adjudication which were non-existent when the decree was made, and which have never been adjudged. Hence, a suit may be entertained, if jurisdiction over the parties is established, without transgressing the doctrine of res judicata. In short, new facts create new issues. Although this court has never directly passed upon the point,1 we have applied the principle in custody cases. Boone v. Boone, 1945, 80 U.S.App.D.C. 152, 150 F.2d 153; Cook v. Cook, 1943, 77 U.S.App. D.C. 388, 135 F.2d 945; Boone v. Boone, 1942, 76 U.S.App.D.C. 399, 132 F.2d 14, certiorari denied, 1943, 319 U.S. 762, 63 S.Ct. 1319, 87 L.Ed. 1713. Yet, if we should favor the rule it could not avail appellants in the circumstances presented by their complaint, which alleges no facts to justify application of such a rule to their case. Indeed, the suit has not been prosecuted upon any theory that would bring it within the scope of the cases cited. It rests upon the single proposition that as the father's legal duty to support his minor children is a continuing one res judicata does not apply to a judgment for their maintenance; therefore the Florida decree constitutes no bar to this action in the District of Columbia. We cannot agree with the broad contention, and must hold that upon the facts stated by the complaint, the decree is res judicata and entitled to full faith and credit by the courts of the District of Columbia. U. S. Const. Art. IV, § 1; Yarborough v. Yarborough, 1933, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269.

The suggestion has been made that this case should be governed by Schneider v. Schneider, supra, which decided that our District Court had authority to award maintenance for a child notwithstanding a Nevada decree for its support. But that decision is grounded upon a ruling that the Nevada court lacked jurisdiction over the obligation of the father to provide support, in view of the fact that neither father nor son had a Nevada domicile. It seems also that the son was not even present in the State. However, in the present case validity of the Florida decree is not questioned, as indeed it could not be, for there was undoubted jurisdiction in the court to support the provision for maintenance of the children, who were actually living in Florida in the care and custody of their mother. See Fla.Stats.1949, F.S.A., § 65.14.

This court cannot properly override the principles of res judicata or disregard the full faith and credit clause of the Constitution. The obstacles they present in a case like this call for legislation authorizing the establishment in our District Court of final decrees of the courts of other jurisdictions granting alimony or maintenance, and the enforcement of such decrees, when so established, by the same means and methods provided by our laws for enforcement of local decrees. As the law now stands foreign decrees cannot be so enforced. Worsley v. Worsley, 64 App.D.C. 202, 76 F.2d 815, certiorari denied, 1935, 294 U.S. 725, 55 S.Ct. 640, 79 L.Ed. 1256; Grant v. Grant, 1935, 64 App.D.C. 146, 75 F.2d 665; Davis v. Davis, 1907, 29 App.D.C. 258, 9 L.R.A., N.S., 1071.

By his cross-appeal the defendant below attacks the order allowing costs and counsel fees. In so doing we think the court acted within its authority and discretion, notwithstanding dimissal of the complaint. See Ruby Lee Minar Inc., v. Hammett, 1931, 60 App.D.C. 291, 53 F.2d 149, where this court affirmed the allowance of costs to a plaintiff in an equity suit, notwithstanding dismissal of the bill. The only objection raised to the allowance of costs and counsel fees rests upon the argument that there was a total lack of jurisdiction over the cause of action, leaving the court with no power but to dismiss the complaint. Our ruling against this contention disposes of the present question. We take it there is no dispute that the general equity powers of the court permit an award of costs and counsel fees in behalf of a wife suing for maintenance. This was settled as early as Tolman v. Tolman, 1893, 1 App. D.C. 299; Shaw v. Shaw, 1894, 2 App.D.C. 204, which sustained the authority of the Supreme Court of the District of Columbia, predecessor to the present District Court, to make such allowances. See also Bates v. Bates, 1944, 79 U.S.App.D.C. 14, 141 F.2d 723; Melvin v. Melvin, supra; Lesh v. Lesh, 1903, 21 App.D.C. 475.

The District Court also ruled that the claim of Mrs. Scholla for $500, overdue installments under the Florida decree,...

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