Tipping v. Tipping, 6585.

• Decision Date: 03 February 1936
• Docket Number: No. 6585.,6585.
• Citation: 82 F.2d 828
• Parties: TIPPING v. TIPPING.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 F.2d 828 (1936)

TIPPING v. TIPPING.

No. 6585.

United States Court of Appeals for the District of Columbia.

Decided February 3, 1936.

Bruce Aitchison, of Washington, D. C., for appellant.

Louis H. Mann and Frederic B. Warder, both of Washington, D. C., for appellee.

Jean M. Boardman, Martha Gold, and George C. Gertman, all of Washington, D. C., as amicus curiæ.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

MARTIN, Chief Justice.

This case arises under the divorce laws of the District of Columbia.

By an act of Congress entitled, "An Act To establish a code of law for the District of Columbia," approved March 3, 1901, it was provided by section 966 that an absolute divorce could be granted only where one of the parties had committed adultery during the marriage; and that a legal separation from bed and board could be granted for drunkenness, cruelty, or desertion. The same section provided that marriage contracts might be declared void where either of the parties had a former wife or husband living and not lawfully divorced; or where the marriage was contracted during the lunacy of either party; or where either party was matrimonially incapacitated at the time of marriage and had continued so; and where either of the parties had not arrived at the age of consent to the contract of marriage. D.C. Code, § 964 et seq.; 31 Stat. 1189, c. 854 (D.C.Code 1929, T. 14, § 61 et seq.).

These provisions remained unmodified in the Code of the District until by an act of Congress approved on August 7, 1935 (49 Stat. 539, § 1), it was provided that section 966 of the former act should be and it was repealed, and "in lieu" thereof a corresponding section was enacted also to be known as "section 966."

The new section 966 provided that an absolute divorce or a legal separation from bed and board could be granted for adultery, or desertion for two years, or voluntary separation from bed and board for five consecutive years without cohabitation, or final conviction of a felony involving moral turpitude and sentence for not less than two years to a penal institution which is served in whole or in part. It was further provided in the substituted section that a legal separation from bed and board could be granted for cruelty, provided that where a final decree of divorce from bed and board theretofore had been granted or thereafter might be granted and the separation of the parties continued for two years after the date of such decree, the decree could be enlarged into a decree of absolute divorce, upon the application of the innocent spouse. The new section also contains provisions similar to those of the former act in respect to grounds for declaring marriage contracts to be void.

It may be repeated that under the law approved in 1901, supra, the sole ground for absolute divorce was adultery, and the grounds for divorce a mensa et thoro were drunkenness, cruelty, and desertion; whereas under the act of 1935 an absolute divorce could be granted for adultery, desertion for two years, voluntary separation from bed and board for five consecutive years without cohabitation, final conviction of a felony involving moral turpitude, and sentence for not less than two years to a penal institution which is served in whole or in part; and that a divorce a mensa et thoro could be granted for cruelty.

After the enactment of the act of August 7, 1935, to wit, on September 10, 1935, Elizabeth W. Tipping, the appellee, filed a bill in equity in the Supreme Court of the District of Columbia, setting out her marriage with the defendant therein on September 14, 1918, and their voluntary separation from bed and board on March 25, 1927, brought about by the failure of defendant adequately to provide for plaintiff and their children; and that plaintiff and defendant remained separated from bed and board without cohabitation for a period of more than five consecutive years thereafter and have so continued. Plaintiff prayed for an absolute divorce from defendant under the provisions relating to such separations in section 966 of the later enactment as above set out.

The defendant entered his appearance to the bill and joined in the prayer thereof. Whereupon, the court, acting under title 14, § 78, D.C.Code (1929), appointed a disinterested attorney to represent defendant and "actively defend the case" on his behalf. The attorney so appointed thereupon filed a motion to dismiss the bill upon the ground that it failed to allege facts sufficient under existing laws to sustain plaintiff's prayer.

The lower court overruled the motion, whereupon a special appeal to this court was granted on application of defendant's attorney.

The question arising upon the appeal is whether under section 966 of the present act the plaintiff may be granted an absolute divorce because of the voluntary separation of the parties from bed and board without cohabitation for a period of more than five consecutive years all of which except one month occurred prior to the present enactment.

The appellant contends that voluntary separation from bed and board without cohabitation for the period of five consecutive years can serve as a basis for an absolute divorce only in case that such period of separation shall ensue after the date of the last enactment, that is to say after August 7, 1935, whereas in the present case although the separation had continued for eight consecutive years, only one month of it had occurred after the enactment of the present statute.

We do not agree with the appellant's contention. It has been held by the highest authority that marriage is an institution of society, creating a status which may be regulated and controlled by public law; that legislation affecting the institution or annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts, or against ex post facto laws. Maynard v. Hill, 125 U. S. 190, 8 S.Ct. 723, 31 L.Ed. 654.

In the exercise of such public authority statutes may be enacted applicable equally to past and future grounds for divorce.

It is said in 1 Bishop on Marriage, Divorce and Separation, § 1480:

"Divorce statutes concern the good order of society. If, contemplating the interest involved as public, it is for the public order and profit that marriage be dissoluble after the transpiring of a particular delictum it can make no difference what was the date of the delinquency, or whether, before or after the statute was enacted. Hence, when the legislative intent does not directly appear in the statutory words, they should be applied equally to past and future transactions."

In Sutherland on Statutory Construction, § 482, it is said:

"When statutory relief is prescribed for a cause which is continuous in its nature as * * * desertion for a certain time as a ground for divorce, if the cause continues after the statute goes into effect, the future continuance of the cause may be supplemented by the time it was continuous immediately before the act was passed to constitute the statutory period."

See, also, West v. West, 2 Mass. 223; Stevens v. Stevens, 1 Metc.(Mass.) 279; Phillips v. Phillips, 22 Wis. 256; Cole v. Cole, 27 Wis. 531; Long v. Long, 135 Minn. 259, 160 N.W. 687, L.R.A.1917C, 159; Hurry v. Hurry, 141 La. 954, 76 So. 160; Hurry v. Hurry, 144 La. 877, 81 So 378; Dowie v. Becker, 149 La. 160, 88 So. 777; Stallings v. Stallings, 177 La. 488, 148 So. 687; State v. First Judicial District Court, 53 Nev. 386, 2 P.(2d) 129, 1048; Schuster v. Schuster, 42 Ariz. 190, 23 P.(2d) 559.

We think that in the instant case a construction which would restrict the application of the act to conditions arising after its enactment would lead to incongruous and unintended results. The first act was repealed by the present one, consequently in such case no relief could be awarded because of acts or conditions preceding the repeal of the former act. Therefore in case of adultery committed prior to the present act, even though suit for divorce was commenced and was pending at the date when the former act was repealed, it would in effect be condoned by the statute and cease to be a ground upon which a divorce could be granted, and this notwithstanding the fact that such a ground is provided under the act of 1935. And in case of a marriage existing prior to the adoption of the present act, if one party be convicted of a felony and sentenced to the penitentiary for a term of two years or more and had entered upon the service of the sentence, it is not reasonable to believe that Congress should intend that in view of that condition if such imprisonment continued after the enactment of the new law, no remedy should be granted to the innocent spouse after the date of its enactment. In such case the act should be construed as retrospective in character. It is reasonable also to believe that if parties to a marriage separated by agreement and continued such separation without cohabitation as in the present case for a period of more than eight consecutive years under the old law and one month under the new law, the actual status of the parties should be recognized and the separation be regarded as a ground for divorce rather than require that the separation should continue for four years and eleven months more before a divorce could be granted.

Moreover, it is apparent that Congress intended by the enactment of 1935 to liberalize and enlarge the divorce laws of the District of Columbia, both as to existing and prospective conditions. It is a matter of public history that for years residents of the District were removing temporarily to other jurisdictions where the divorce laws were more liberal and there securing divorces and then returning to their homes in the District. This gave rise to much litigation within the District and to situations productive of injustice and injury to innocent parties, often...