Uline v. Uline, 11677.
Decision Date | 21 May 1953 |
Docket Number | No. 11677.,11677. |
Citation | 92 US App. DC 281,205 F.2d 870 |
Parties | ULINE v. ULINE. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James F. Reilly, Washington, D. C., with whom Messrs. William E. Leahy and William J. Hughes, Jr., Washington, D. C., were on the brief, for appellant.
Mr. Edmund D. Campbell, Washington, D. C., with whom Mr. Grant W. Wiprud, Washington, D. C., was on the brief, for appellee.
Before PROCTOR, BAZELON and WASHINGTON, Circuit Judges.
This is an appeal by Mrs. Uline from a decree of absolute divorce granted to her husband under section 403, Title 16 of the District of Columbia Code. (1951). The grounds were voluntary separation of the parties from bed and board for five consecutive years without cohabitation.
The evidence showed beyond dispute that the parties originally lived in Cleveland; that the husband came to the District in 1930 and has lived here ever since; that the wife has lived in Toledo for most of the intervening period, and still lives there; and that the husband has always been unwilling — and the wife willing — to resume marital relations. The area of disagreement is this: did the separation become voluntary, and remain voluntary, within the meaning of the statute, for the necessary five years? The answer depends on whether the wife in fact acquiesced in the separation. We have held that silent acquiescence could properly be found when the wife neither asked the husband to return nor "made any other attempt to bring about a reconciliation."1 Like holdings were made where neither party "tried to end" the separation,2 and where the wife made no "real effort to get in touch with the plaintiff-husband, much less to attempt to end the separation and reestablish the marriage relationship."3 But we held otherwise where the wife made known to the husband "at periodic intervals" her desire that they resume a common home.4
In the instant case, the pertinent findings of the trial court are these:
The evidence on these matters was conflicting. Among other things, the wife testified that she sent letters to her husband every Christmas during the years 1935 to 1949, asking for reconciliation. It was stipulated that the husband would have testified, had he been physically able to take the stand, that he received no such letter or card after 1933. There was a like conflict as to personal efforts allegedly made by Mrs. Uline with a view to reconciliation.
The findings do not resolve these conflicts. The trial court simply characterized defendant's efforts to effect a reconciliation as "generalized and sporadic rather than specific, sustained and continuous." If Mrs. Uline's testimony be accepted at full value, its conclusion seems erroneous. If her testimony be wholly discounted, the contrary is the case. Still other constructions of the evidence are possible. The findings are thus not sufficiently specific to enable us to perform our task of review, and to apply the tests stated in the precedents. We cannot pass on the legal effect of Mrs. Uline's actions until we have the findings of the trier of facts as to what those actions were. The case must be remanded for that purpose. The trial court, of course, has discretion as to whether it should make new findings on the present record or take additional evidence, and as to whether the case should be expedited.
So ordered.
On Motion to Vacate and Set Aside Judgment.
The opinion rendered by this court on May 21, 1953, was accompanied by entry of judgment on the same date. One week later, our mandate not having issued, the appellant filed a motion asking this court to vacate and set aside its judgment of May 21. The moving papers stated the following as grounds for relief:
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