147 F.2d 154 | D.C. Cir. | 1945
In March, 1940, Mary Osborne Gill filed, in tlie District Court, her complaint for di
Thereafter, in March, 1942, Lee Andrew Gill filed his complaint against Mary Osborne Gill for absolute divorce on the ground of desertion. On December 17, 1943, tlie trial judge granted the divorce in favor of Lee Andrew Gill and against Mary Osborne Gill, but ordered that he pay to her the sum of $65 per month as permanent alimony. In its judgment, filed on December 17, 1943, the Court made the following findings among others: “* * * that defendant deserted plaintiff more than two years preceding the date of the instituting of this action; that the Findings of the Court and the Judgment had in Civil Action No. 6104 have rendered as res adjudícala the fact of the failure of the plaintiff herein to have, properly maintained his wife at the time of the institution of the former suit, Civil Action No. 6104; that the Findings of the Court and the Judgment in Civil Action No. 6104 have rendered as res adjudícala a failure of proof on behalf of the defendant herein to show any acts of cruelty on the part of the plaintiff herein as the occasion for the desertion herein found; and that the plaintiff herein has otherwise established the material allegations of his complaint; and concludes, as a matter of law, that plaintiff, Lee Andrew Gill, is entitled to a divorce from the bonds of marriage. * * *” [Italics supplied] Both parties appealed from this judgment. The two appeals were consolidated in this Court.
As there was no transcript of the evidence in Civil Action No. 6104, and no separate findings,
The judgment for separate maintenance required some basis for its support.
Where a judgment for maintenance has been entered, without findings and in the absence of a transcript of the evidence, as in the present case, the trial judge may not, in a subsequent action between the same parties, reject as unproved any facts pleaded or grounds alleged which if proved, had any reasonable tendency to establish the conclusion of the trial judge in the earlier case, or to support the judgment entered. On the contrary, under the familiar rule that the earlier judgment is res judicata, on the points and matters in issue and adjudicated in the first suit,
The judgment in the present case must be set aside, also, because it is based upon a finding of desertion continuing for more than two years preceding the date of instituting the action. As the present action was instituted on March 19, 1942; as the Judgment in Civil Action No. 6104 was filed on October 24, 1941; as that Judgment established as res judicata that Mrs. Gill had been and was justified in living apart from Mr. Gill and was entitled to separate maintenance because of circumstances of cruelty, abuse and neglect set forth in her complaint and duly established at the earlier trial, it is obvious that the finding and judgment of the trial court in the present case, upon the ground of desertion, cannot stand.
The case will be remanded to the District Court with instructions to grant the motion for judgment dismissing the complaint in Civil Action No. 15033.
Reversed.
The record shows this to be true and the fact was conceded on oral argument, contrary to the apparently inadvertent statement in the present judgment.
Oklahoma v. Texas, 256 U.S. 70, 86, 88, 41 S.Ct. 420, 65 L.Ed. 831.
Shellman v, Shellman, 68 App.D.C. 197, 95 F.2d 108.
Brown v. Brown, 74 App.D.C. 309, 311, 122 F.2d 219, 221.
Melvin v. Melvin, 76 U.S.App. 56, 57, 58, 129 F.2d 39, 40, 41.
2 Freeman, Judgments (5th ed. 1925) § 627, p. 1322.
Brown v. Brown, 74 App.D.C. 309, 310, 122 F.2d 219, 220; Geracy, Inc. v. Hoover, 77 U.S.App. 55, 58, 133 F.2d 25, 28; see Spruill v. Serven, 68 App. D.C. 60, 93 F.2d 219, certiorari denied, 302 U.S. 764, 58 S.Ct. 477, 82 L.Ed. 594; Daniels v. Coe, 73 App.D.C. 54, 56, 116 F.2d 941, 943.
Southern Pacific Railroad Company v. United States, 168 U.S. 1, 48, 49, 18 S. Ct. 18, 42 L.Ed. 355.
Warner v. Warner, 54 Mich. 492, 494, 20 N.W. 557, 558: “If the husband’s conduct is so cruel towards his wife that she cannot live and cohabit with him with safety to her health or without peril to her life, or if she has good reason to believe she cannot, and for such reason she leaves him and abandons his home, she does not thereby commit the crime of desertion. In such case she does not leave her husband or her home in consequence of any willfulness on her part, but is compelled by the cruelty of her husband, and against her will, so to do. The desertion in such case is upon his part, and not upon hers. He as completely commits the crime of desertion when, by his cruel conversation and conduct, he compels her for safety to leave him and his home, as when he willfully and without cause leaves and abandons her. In all such cases the husband is guilty of the crime or misconduct he charges against the wife, and of course cannot have a decree.” Hitchcock v. Hitchcock, 15 App.D.C. 81, 88, 89; see Underwood v. Underwood, 50 App.D.C. 323, 271 F. 553; Melvin v. Melvin, 76 U.S.App. 56, 58, 129 F.2d 39, 41; Miller v. Miller. 72 App.D.C. 348, 114 F.2d 596; Israel v. Israel, 185 Ala. 39, 64 So. 67.