Smith v. Smith

Decision Date17 September 1969
Docket NumberNo. 4664.,No. 4755.,No. 4807.,4664.,4755.,4807.
Citation256 A.2d 833
PartiesHarold E. SMITH, Appellant, v. Lola Carpenter SMITH, Appellee.
CourtD.C. Court of Appeals

Raymond Godbersen, Washington, D. C., for appellant.

Joseph D. Di Leo, Washington, D. C., for appellee.

Before HOOD, Chief Judge, and FICKLING and NEBEKER, Associate Judges.

FICKLING, Associate Judge.

These are three cases consolidated on appeal in which appellant (husband) appeals from (1) the dismissal of a maintenance action, (No. 4664); (2) the judgment denying an annulment or a divorce, (No. 4755); and (3) a contempt order for failure to comply with a maintenance order, (No. 4807).

The parties began this litigation in 1965 when appellee (wife) brought an action for separate maintenance which resulted in an order directing appellant (husband) to maintain mortgage payments on the marital home, in which the wife still lived, and to pay $10 every two weeks for support. No appeal was taken from this order. Over a year later, appellant filed a motion to modify, vacate, and dismiss the maintenance order on the ground that there was no valid marriage between the parties. The trial court overruled the motion without prejudice to the rights of the parties in the then pending action for an annulment or divorce, and then later dismissed the maintenance action.

Case No. 4664

Appellant first contends that the trial court erred in denying him an annulment. He claims that neither of appellee's two prior marriages had been terminated by an annulment or divorce and, therefore, his marriage to appellee is void. We disagree.

Case No. 4664

The trial court's dismissal of the maintenance action was premature in that the formal order in the annulment action had not yet been entered, although a trial on the merits had been held and oral findings of fact and conclusions of law had been made. Since the rights of the parties were fully adjudicated in the annulment action (No. 4755), appellant was not prejudiced by the dismissal. Accordingly, we affirm the order of dismissal.

Case No. 4755

After a trial on the merits, appellant was denied an annulment or a divorce and the order for maintenance entered in August 1965 was continued.

It was established at trial that the parties were first married in New York City on June 21, 1944. Appellant was in the armed services at the time and was soon sent overseas. Upon his return the parties participated in a second ceremonial marriage, also in New York City, on February 3, 1946, since appellant's divorce from his previous wife had not become final at the time of the 1944 ceremony. Thereafter, the parties resided in the District of Columbia. In June 1965, the appellant moved out of the home because of marital difficulties. He claimed that he feared physical harm because of previous assaults upon him, which the appellee denied.

It is undisputed that appellee married one John Michael, Jr., on September 26, 1928, at Spartanburg, South Carolina. Appellee testified that this marriage was annulled in South Carolina, although she had never seen a court order to that effect. Appellant's only "evidence" to the contrary was his own testimony that he had searched the records of New York City and had found no record of any divorce or annulment between appellee and Michael. It has been held that the failure of a record search to disclose that a divorce had been obtained was insufficient to rebut the presumption that the impediment of a prior marriage had been removed. Wheeler v. Terrell, 99 U.S.App.D.C. 168, 238 F.2d 29 (1956), cert. denied, 352 U.S. 1018, 77 S. Ct. 581, 1 L.Ed.2d 557 (1957); Harsley v. United States, 88 U.S.App.D.C. 150, 187 F.2d 213 (1951). Obviously, that result is even more compelling where the records of the wrong jurisdiction were searched. Thus we find that appellant has failed to sustain his allegation that appellee's marriage to Michael was never terminated.1

Appellee's second marriage was to a Waldo Jones on June 21, 1930, at New York City. Again, appellant relied on his statement that the record search failed to disclose any annulment or divorce between appellee and Jones. Although that statement alone would be insufficient to prove that there was an impediment to his own marriage to appellee,2 her own testimony clearly established that formal proceedings were never instituted to terminate her marriage to Jones. She testified, however, that Jones was already married when he married her, and that Jones admitted that he had another wife when confronted with this fact.

Under New York law, a marriage in that state is absolutely void if one of the parties to the marriage already has a spouse who is living and undivorced. Brown v. Brown, supra. Thus, since Jones had a living wife at the time, his marriage to appellee in 1930 was void, and therefore she was free to marry appellant.

Therefore, the trial court correctly held that appellant was not entitled to an annulment.

Appellant also contends that if his marriage was valid, the trial court erred in not granting his motion for an absolute divorce on the ground of voluntary separation without cohabitation for one year. D.C. Code, § 16-904(a). The question of the voluntariness of the separation is one for the trier of the facts, and we cannot set aside such a finding unless it is clearly erroneous; i. e., when the appellate court, upon reviewing all the evidence, is left with the definite conviction that a mistake has been made. Glendening v. Glendening, D.C.App., 206 A.2d 824 (1965). We feel that the judgment was plainly wrong and that a mistake was made in the instant case. D.C.Code, § 17-305(a).

The record indicates that the initial separation was not mutually voluntary but constituted desertion by the appellant. However, even if that is so, the nature of the initial separation is not determinative of the issue. Bowers v. Bowers, 79 U.S. App.D.C. 146, 143 F.2d 158 (1944); Henderson v. Henderson, D.C.App., 206 A.2d 267 (1965). Parks v. Parks3 holds that an involuntary separation may ripen into a voluntary one by the action of the parties.

It is clear that appellant has never desired a reconciliation. The issue before the trial court was whether the separation had become voluntary on the part of appellee. We hold, as a matter of law, that it has. Several days after appellant moved from the marital abode, appellee filed suit for separate maintenance. Appellee's pleadings in that action consisted of a motion and affidavit prepared on D.R. Form 4, entitled "Motion and Affidavit4 4 (D.C. C.E. General Sessions Forms, form 74). Question 16 of that form asked, "Are you agreeable to a reconciliation?" Appellee's response to that question was "No."

Appellee's response was a judicial admission and was admissible into evidence in the divorce case. 29 Am.Jur.2d Evidence § 616 (1967). The record shows that the trial court had actual notice of the pleadings in the maintenance suit, referred to those pleadings in the instant case, and considered the instant case to include the maintenance action. Under the circumstances, the trial court erred in not considering appellee's statement that she did not want a reconciliation.

Thus, appellee had admitted that the separation had become voluntary and, since more than one year had elapsed between the date of the pleadings in the maintenance suit and the filing of the complaint for divorce, appellant was entitled to the relief he sought unless it were shown that the separation had ceased to be voluntary during the critical period. Glendening supra. And, since the separation had become voluntary, the burden was on appellee, as the party challenging the continuing voluntariness, to show that she had changed her mind and wished a reconciliation. Buford v. Buford, 81 U.S.App.D.C. 169, 156 F.2d 567 (1946); Bowers, supra; Glendening, supra. This, appellee failed to do. Her only evidence in this regard was that she had called appellant approximately twelve times to talk to him. Although this statement was in response to her counsel's question, "Did you ever ask [appellant] to come back?", she did not testify why she wanted to talk with him or when these calls were made; i. e., were they made within the pertinent one year period? We find nothing in the record which would indicate that either party sought a reconciliation at anytime. Since the separation had ripened into a voluntary one, it was error not to grant the absolute divorce.

In view of our holding, we remand this case to the trial court for consideration of division of property rights and to reconsider appellee's right to future support. We do not find the award of $750 for appellee's counsel fees excessive.

Case No. 4807

Appellant was held in contempt for failure to comply with the court's maintenance and support order filed February 8, 1968.

He complains, first, that the order cited in the margin5 is directed to the wrong party.

It is apparent from the record that the court intended that the order be directed to the plaintiff-husband (appellant) and not to the defendant-wife (appellee). The court's findings and conclusions, made at the close of the evidence, clearly establish that there was a clerical error in the judgment. However, appellant was in no way prejudiced or misled by the error. Therefore, we correct the order of February 8, 1968, in Civil Action No. D-1466-67, by substituting the words "That the plaintiff be" for the words "That the defendant be" in each of the paragraphs set forth in the margin. C...

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4 cases
  • ESTATE OF REAP v. Malloy, 97-PR-461.
    • United States
    • D.C. Court of Appeals
    • April 1, 1999
    ...evidence that he and the textatrix had a property settlement agreement. See Wines v. Wines, 291 A.2d 180, 182 (D.C.1972); Smith v. Smith, 256 A.2d 833, 836 (D.C.1969). Finally, the divorce decree made no reservation of alimony to either spouse. Thus, both were relieved of any further suppor......
  • Sheridan v. Sheridan
    • United States
    • D.C. Court of Appeals
    • June 22, 1970
    ...what the original circumstances were which have changed will be in the original order or its accompanying file. Under Smith v. Smith, D.C.App., 256 A.2d 833, 836 (1969), such evidence is, of course, available. The burden is always on the movant to bring actual notice to the trial court of r......
  • Bondurant v. Bondurant, 5695.
    • United States
    • D.C. Court of Appeals
    • November 1, 1971
    ...of 1 year prior to the filing of her complaint. Roberts v. Roberts, 95 U.S.App.D.C. 382, 384, 222 F.2d 408, 410 (1955); Smith v. Smith, D.C.App., 256 A.2d 833, 836 (1969); Johnson v. Johnson, D.C.App., 221 A.2d 85, 86 (1966); Henderson v. Henderson, D.C. App., 206 A.2d 267, 269 ...
  • Fisher v. Fisher, 4728.
    • United States
    • D.C. Court of Appeals
    • December 3, 1969
    ...an initial separation which is not mutually voluntary may ripen into a voluntary separation by action of the parties. Smith v. Smith, D.C.App., 256 A.2d 833 (1969). This being so, it is our judgment that the causes of action are sufficiently similar in substance to allow the court, in its d......

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