278 F. 1005 | D.C. Cir. | 1922
Appeal from a decree in the Supreme Court of the District dismissing the petition of plaintiff, appellant here, for a divorce with alimony.
In her petition, filed January 2, 1920, plaintiff alleged desertion as of April 1, 1917, and that her husband thereafter had contributed nothing toward her support. In his answer defendant denied “that he deserted plaintiff on the 1st day of April, 1917,” and alleged that the parties cohabited in July and during the month of August, 1917; that “the parties did not separate until about the time the defendant left New York for France, as he was in duty bound to do as an officer in the United States Army.”
Plaintiff’s testimony was substantially as follows: She was married to defendant in 1912, and from 1916 to April of 1917 they lived in this city, defendant then being employed in the Geological Survey. On the latter date defendant, had requested plaintiff to meet him at a placed named, and, after waiting for him-several hours, she went home- and found a note informing her he had left for the field, and would send her some money when he got his check at the end of the month. She was compelled to 'make inquiries at the Geological Survey to learn his whereabouts, and it was not until some time in May that she heard from him, and she “remembers the letter as being a very ugly one.” She next heard from her husband in June following, when he telephoned her from Union Station in this city, requesting her to meet him, which she did-, and they were together until 12 o’clock at night. He then ipformed her that he had received a commission in the army. When pressed for his reasons for the manner of his leaving
“You wilt probably be surprised to receive tbis letter, since it is only tlie second that I have felt th,at I had occasion to write you in the year and a half that we have been separated, and this one I have given due consideration before 'finally deciding to write. I do not know what your wish is on the subject, but you certainly have realized from the first day of our separation that any future for us together was impossible. The fact that you came to Newport, II. I., and against my wishes, while I was stationed at Ft. Adams, and that wo parted apparently friendly, does not and has not altered this in the least. * * * If it had to be a choice between my having to return home and resume my life with you and having,, to be killed here in France, I don’t think I would hesitate to choose the latter, for there are certainly some things worse than death. My object in writing you this letter is not to make any request of you, nor to make any threats, but rather in the hope that I may induce you to see as I do the desirableness of a divorce being secured by friendly agreement rather than by suit. Of course, you must be aware of the fact, since a long while past, that I placed the matter in Mr. C. Vernon Ford’s hands when I left America, to the end that he would sooner or later and perhaps even through your wish be able to work on a divorce in my behalf on a basis of friendly agreement. Take my word for it, as I once before gave it, that I would separate from you if you committed the third time a certain act towards me, which needless to say was committed, that I will get a divorce from you when I return to America by suit, if it has not been obtained in the meantime by your agreeing to a friendly divorce. I hope you will not waste your time in speculating that I cannot do this, for as to that there is no question of doubt, but it is certainly my hope that this method will not have to be resorted to for the following reasons: * * * I will never again live with you.”
In addition to the quoted matter, defendant made accusations of a most indecent and reprehensible character against his wife, and informed her that, in the event of a divorce contest, these charges would become public.
The next communication plaintiff received was dated November 15, 1918, in which Moncure informed her that he had written Mr. Ford to cable him — •
“whether you have agreed to the divorce on a friendly basis,” etc. “If this is not accomplished before my return, I am at least going to get it under way by that time.”
The defendant, testifying in his own behalf, confined himself almost exclusively to a statement of his financial condition. He did not deny that he had deserted his wife, and expressed no regret for his conduct toward her, nor a willingness to effect a reconciliation. He testified that early in January of 1920, shortly after his return from France, he
At the close of the evidence the learned trial justice expressed the view that, inasmuch as the desertion was alleged as of April, 1917, when the evidence showed cohabitation subsequent to that date, and the plaintiff must have known the averment in her petition was untrue, the petition must be dismissed. Thereupon plaintiff asked leave to amend, so as to make her petition conform to the proof; but this motion the court declined to grant.
We are not at all convinced that Mrs. Moncure did not act in good faith in verifying her petition. She then was advised of the duplicity of her husband, and was quite justified in her conclusion that in fact, if not in law, the separation dated back to April of 1917. Indeed, the defendant, in the letter written early in October of 1918, had fixed that date, for he therein referred to “the year and a half that we have been separated,” and then stated:
“I do not know what your wish is on the subject, but you certainly have realized from the first day of our separation that any future for us together was impossible. The fact'that you came to Newport, R. I., and against my wishes, while I was stationed at Ft. Adams, and that we parted apparently friendly, does not and has not altered this in the least.”
Knowing that her husband had consulted an attorney, and that their relations after April of 1917 were the result of his duplicity,' it
We are of the view that, in the circumstances, the court should have permitted the amendment sought, and that plaintiff was entitled to a decree.
The decree appealed from, therefore, is reversed, with costs, and the cause remanded for further proceedings, not inconsistent with this opinion.