Edwards v. Edwards
356 A.2d 633
D.C.
1976
Check Treatment

*2 A.2d determined MACK, Associate Before KELLY the elements of constructive desertion were Re- Judges, PAIR, Judge, Associate present because the had left wife never tired. In opinion abode.3 our

court erred. MACK, Judge: Associate had supra, the trial court In Appellant-wife appeals from an order an divorce on absolute Superior dismissing Court her who com- of desertion to husband plaint an absolute divorce once he did not return to residence (D.C. by his of constructive desertion. himself “locked out” wife. found At the close of evi- 16-904(a)). This reversed for insufficient trial, describing all evidence at the court ruled the kinds of conduct dence. legally supported insufficient the evidence was decree would have physical (including cruelty arising constructive deser- from by appellee husband. that: the court noted abuse), 1.Apparently, trial, home that the husband came 2. At husband as- denied he drinking. evening prior He been after saulted the occasion wife, fought pled guilty and the threatened stated that to both counts shotgun. battery children, He loaded his to be then released boyfriend daughter’s jail. to leave an older forced and, hand, house, gun ordered later him. The wife remain others to The court also concluded that wife was in fear for life. she had been stated that not entitled to a divorce on the police, who had summoned since the husband had not volun- desertion boyfriend, arrived while tarily separated from her. immediately shotgun arrested him. contemplates ing McEachnie v. Mc desertion. See

Desertion other, Eachnie, separation of from the D.C.App., Novak, justification, intention not Novak v. return, Stephenson of consent and the absence A.2d v. Ste phenson, D.C.App., party. connivance of *3 (1963). the desertion Under no can For circumstances omitted.] [Citations character, one that of these decisions be read as to be “constructive” by oth- departure the neces spouse must show misconduct from “marital abode” is spouse forcing sary er the former abandon of desertion.4 misconduct abode. If such the marital remaining in mari- spouse the the

shown Desertion is defined as “a volun treated, the eyes separation in the of tary tal abode is of party one from the oth sup- law, er, [Emphasis as the justification”. deserter. McEachnie v. plied.] (Id. 658-59.) McEachnie, supra, Hales, at at Hales v. supra hand, at 658. On the other construc Focusing upon the last sentences of two tive desertion a doctrine fashioned language, in the instant the provide the party courts to relief for a departure that the case determined from separates justifiably who her from his or is an element of marital abode essential spouse.5 The essential elements of con constructive read this lan- desertion. We spouse structive desertion are guage contributing nothing as more than bring separation about a from the other attempted degree the of illustration of spouse because of the latter’s misconduct. necessary support misconduct misconduct which a find will desertion under the factual circum- tive ing of constructive desertion consists of in stances Hales. alia, ter “. . [c]ruelty arising . from physical abuse ... acts Although the term “marital abode” impair which affect and health way many has found its into of our cases together make life intolerable .” involving desertion, each Grollman, 332, citing Grollman at supra case, inas factual circumstances Hales, supra Hales at 659. party charging con were such that conjugal had case, structive desertion left engaged In this the husband in mis- Roberson, D.C. domicile. See Roberson v. conduct which forced wife to terminate App., (1972); Haberman v. 297 A.2d 769 relationship. the marital of his Because Haberman, D.C.App., 818 abuse, of cruelty physical acts she Grollman, D.C.App., 220 A.2d practical Grollman v. two alternatives: she could either Similarly, 330 term “marital (1966). leave the home with the children or way has its cases abode” found into involv- enlist the aid courts police Boyce Boyce, U.S.App.D.C. (1899). 80 Cf. Under the doctrine of constructive (1946). Boyce, desertion, F.2d 229 justified 153 conduct which yet separately, held that who lived is labeled as enab thus home, ling same could a divorce on obtain the innocent to sue for divorce. stating separation, Clark, supra. jurisdiction, Bee In this con thing separate is not recognized “[t]he essential structive desertion was as roofs, lives.” Id. 153 at for divorce first the courts Accord, Hawkins, at Hawkins v. September F.2d later statute. Act of U.S.App.D.C. 147, (1951). 89-217, 344 F.2d (codi Pub.L. No. § 79 Stat. 889 fied at 16-904(a)). D.C.Code Clark, H. Bee Domestic Relations Schreiber, Schreiber D.C.Mun.App., (1968). leaving Justification (1958) ; Scott, A.2d 278 Scott v. D.C.Mun. is a traditional defense to Bee also Slone Bee, g., Underwood, sertion. e. Underwood Slone, D.C.Mun.App., App.D.C. (1921) ; 271 F. Hitchcock, App.D.C. Hitchcock It her equivalent from tion. was and the children protecting legally herself mar- separating him she terminated the Had assaults. herself from abode, has [Emphasis supplied.] (Id. at A. leaving the marital riage by 77.) disputed that she would not been of con- entitled to divorce find the reasoning We why reason no see structive desertion. We persuasive. In this denied a divorce she should be brought about at least one flee, but she simply because year by voluntarily filing charges against charges with instead chose to file cruelty, husband. Because of his hus- police intent of justified action was perhaps even nec restrained permanently band arrested essary protection. for her We hold her.6 living *4 is ground she a entitled to divorce on the jurisdic- no in this there are cases While of constructive desertion.7 issue, very precise a involving this Accordingly, the is reversed case Csanyi, in similar situation arose judgment granting a di- that a instructions In that N.J.Eq. (1921). A. ground deser- vorce on the of constructive she police a the after wife went to in appellant. tion be entered favor of her husband by attacked had been pro- Reversed and remanded She a his arrest. warrant for swore out for further ceedings opinion. not home, inconsistent with this where returned to their then He subsequently arrested. was imprisoned convicted (dissent- PAIR, Retired Judge, Associate di- petitition for The wife’s for months. ing) : deser- of constructive vorce on es contrary to well majority The holds part in special master by denied a tion was wife, subjected cru to tablished law that by because “she [leave him] husband, a divorce elty to by her is entitled 77. 13, 115 A. at Id. at act of her own.” desertion on of constructive court, to entitled that she was in though even she remains divorce, stated: it.1 leave required to abode and he peti- of the of the reversing desertion the order Thus [A] complaint at by occurred tioner the defendant dismissed court which upon her abso battery entry of a for directing time his assault and night his arrest. The of constructive before lute on the effect, commended, overrules, blamed, to be court. invoking process against of the law of decisions of unbroken line Haberman, 267 A. D.C.App., out swearing Her Haberman v. brutal husband. Hannon, by her D.C. intended Hannon (1970); for him was 2d 818 warrant protec- for her App., (1966); his incarceration 220 A.2d 94 Groilman to cause wife, fact, By Testimony 16-904(a) pro revealed D.O.Code it is her adult vided fled that: occasions, daughter’s marriage number of home A divorce from the bond of harassed, followed, only may granted be be there her husband. actual or assaulted constructive desertion for one year, voluntary separation from bed and By holding we, course, imply do not board for one without' cohabitation upon involuntarily imposed that a legal separation . A. from bed and husband and wife would may granted cruelty. board also aggrieved party constructive desertion. The lawfully bring must about some act occasioned other’s misconduct. ollman, (1966); division of this court not alter or D.C.App., Gr 657, change the rule. also Hales, D.C.App., 207 A.2d Schreiber Hales v. Schreiber, supra Potts, at it was said: Potts D.C.Mun. where (1965); “A long standing rule of dis- should not be Schreiber 171 A.2d strong showing turbed in the of a Schreiber, D.C.Mun.App., absence Roberson, injustice.” of its unsoundness and Roberson See also cf. majority says: “Under no circum- Collins, D.C.Mun.App., 156 A.2d Collins v. stances can any of these decisions be read as holding departure from 'marital abode’ is necessary for a recognize or either These decisions desertion.”2 The short and an- obvious clare rule be that a divorce swer to this is subject that the of concern may be constructive desertion bar, in the case at as it inwas the cases by rea- upon showing that only above, cited is constructive desertion spouse the other cruelty son of one proof elements of required to establish compelled her own or. it. See Hales v. supra. make safety to leave the home Hales, su- a home Hales v. elsewhere. In Hawkins, U.S.App.D.C Hawkins v. 658-59, pra sought and was a husband *5 Boyce 191 F.2d 344 (1951), ground of con- a divorce on the Boyce, U.S.App.D.C. 229 80 153 F.2d structive This court reversed desertion. strong- (1946), upon majority which the so saying: relies, ly distinguishable their facts. are contemplates voluntary proof Desertion In each case the was that the separation other, party in voluntarily apart of one from the lived justification, without an intention not to home reason of which was return, and the absence of consent or held on the of volun- divorce party. connivance of the other Deser- tary separation In the was warranted. tion as a has been appellant have but did case at bar could jurisdiction broadened this to include not seek a limited divorce on and; “constructive” deser- separation desertion. For the cruelty legal or from bed character, to be “constructive” cruelty. because of such See D.C. board spouse must show misconduct 1973, 16-904(a). spouse aban- forcing the former to majority’s upon Csanyi reliance don the marital If such miscon- abode. N.J.Eq. 11, 115 is Csanyi, (1921), A. 76 remaining in spouse duct is shown odd. that case the facts were While treated, eyes the marital abode is in the similar, the somewhat decision con- law, as the deserter. provided trolled a state statute [Citations omitted.] part re- that a willful “desertion shall be long Whatever be said of this garded . . . to be . continued rule, standing any question beyond it is . . . desert- notwithstanding now that because of the strictures of A. imprisoned M. . ing shall be . . .” P. Ryan, D.C.App., (1971), rule, general course as a Of [Id. 77.] contemplates (1957) ; Blandy and in 2d Blandy, Desertion spouse by App.D.C. tentional abandonment of one In the case at bar other, only justification, cause without or without consented to the husband’s spouse consent of the abandoned absence from the home but also conceded that separation voluntarily Interesting intention to return. leave it. Novak, ly enough, my distinguished colleagues must concur. Novak and intent con ley they must, Oat cede as “that a invol Oatley, D.C.Mun.App., untarily imposed sup . would [not] Marcey D.C.Mun.App., port Marcey, 130 A. of constructive desertion.” independ- was entitled to a competent or divorce on the be no there can voluntary separation.4 of one when ent will authority. compelled by superior it is True that the trial court made oral aff., Dorsey, F.Supp. Dorsey v. findings (lj appel- that consistent with 195 F.2d 567 U.S.App.D.C. testimony, appellee lant’s did not voluntari- concedes, Moreover, as the ly (2) appellant leave the home and au- only persuasive at best case is did not abandon the home but continued to therefore, against cannot, stand thority. It appellee’s plea reside therein after the Dis- is the authority which imperative addition, specific sentence. In there was a above. law cited case trict of Columbia “[Tjhere written no show- this, appears what all of But aside from ing that [appellee] defendant is that discussion almost too clear tively deserted or otherwise has been of this meaningful review voluntarily separated from her failure by the trial court’s frustrated There was also the written .” make, by Super.Ct.Dom.Rel.R. required as complaint. dismissing sepa- findings of fact 52(a),3 written my opinion Super.Ct.Dom.Rel.R. example, the of law. For rate conclusions contemplates 52(a) more from the findings re- made no written trial court appears court than record. Even ' specting : adoption Super.Ct.Dom.Rel. before the effect, any, issue of if 1. The admonished that find- 52(a), R. appellee’s desertion, of ings are a of fact and conclusions of law guilty alleged plea of judicial prerequisite meaningful review. battery upon appellant. O’Lea, D.C.Mun.App., 138 See O’Lea v. where effect, any, issue of if on such 2. The *6 similar factual situ- faced with a somewhat appellee placing the court prompted say ation to as we should year upon the probation for one con- say here: ap- that he avoid contact dition pellant problems. on marital present of we On basis record Whether, conflicting are left to choose in- assuming a constructive between 3. appellee’s upon ferences and to surmise was the

sertion commenced what battery upon ap- Any finding. actual basis of the deci- alleged statutory sion of the this court under the circum- pellant, running interrupted by justice stances would neither do to period was appellee restrained for involved nor to the trial court. order which suggested judges It is that the trial make January commencing in all cas- having any contact with clear unmistakably 1972 from es problems.” the exact basis of their decision. appellant “on marital Butler, any prayer compare for also and Butler v. D. 4. under Whether appellant proper C.App., Hamilton . other relief deemed provides: findings it will be 3. The rule sufficient if the of fact upon appear and conclusions of In all actions tried law the facts therein. findings fact, shall make written conclusions law appellant sought 4. At the trial to amend her Bequests findings necessary are not complaint to conform to what she insisted Findings purposes of review. of fact shall voluntary separation. was evidence of D.C. erroneous, clearly not be set aside unless § 16-904. See Henderson v. Hen- regard given op- and due shall be to the derson, portunity judge trial court to appear It does not whether or credibility the witnesses. ... If an permitted complaint. was not to amend her opinion or memorandum filed of decision is not permitted court is to make own Hamilton, D.C.Mun.App., its findings or to judgment substitute its that Of trial court. Patterson Pat- impossible Consequently, n to me seems terson, D.C.App., make, responsibly, judgment whether (1963).6 basis in evidence there was not, therefore, appellant was- conclusion that I disturb at this trial court’s would ground of but to a time the the trial court not entitled desertion, directions would remand the record with certify in a sep supple- this court make aration.5 appropriate findings mental record written majority says The of fact and conclusions of For law. all appellee’s misconduct I re- foregoing vigorously reasons spectfully dissent. [appellant] forced the wife to terminate relationship. charges ... to file [And] with the intent of [appellee] perma- arrested and

nently living restrained from with her. JOHNSON, Appellant, E. Linwood appel- allegations There were no such complaint testimony nor was there lant’s certainly

trial to that effect and STATES, Appellee. UNITED finding. court made no such No. 8683. previously says appellee “(who also that [appellee] abused the wife Appeals. Court of District of Columbia occasions) on several was arrested after Argued Nov. having threatened shotgun.” record shows with loaded April 29, Decided that these statements were controverted Rehearing en Banc Granted appellee judge and that the trial refused to July finding. make such points up What all of is the clear *7 showing relation- that the marital

ship interrupted any act direct the court order which ap-

required appellee to avoid contact

pellant problems” for on “marital

commencing February 1972. As the observed, judge evidence was

sharp conflict as the circumstances provoked the order.

It is not the of this function “to reweigh

reconsider evidence” escape physi It does not discharge attention of its review function always cal abuse is not jury, deemed a sufficient case tried without a this court marriage, particularly reason to terminate review both as to the facts and the law but when judgment may are involved. except Roberson not be set aside Roberson, supra Chap appears See also errors of law unless pie Chappie, plainly wrong A.2d 815 or without evi dence to it. D.C.Code 16- Achorn, D.C.Mun.App., 904. See Achorn v. 168 A.2d 399