*1 who had for defense testified concerning any causation, statements not relied texts which witnesses had upon or erred. read. We think the court Reilly Pinkus, S.Ct. U.S. Corp. v. Fed- L.Ed. Dolcin Commission, U.S.App.D.C. eral Trade certiorari denied 348 99 L.Ed. using object “The cross- the books on expert’s examination was to test the tes- timony by having him refer to com- ment their contents.” 338 U.S. at page page S.Ct. at books, court’s bar was all how- reputable, expert ever which the witness had not relied read. In view ruling necessary it was not for the appellant particular to show these books say cannot authoritative. We prejudicial. court’s error was not Reversed. Bernstein, Washington, E.
Mr. Sheldon C., Brody, A. with whom Mr. David D.
Washington, C., brief, on the for D. was
appellant. Harvey Cohen, Washington, B.
Mr. D. appel- , appearance an also entered
C.
lant. JACKSON, Appellant Naomi E. Washington, Edgerton,
Mr. Justin L. C., with -whom Charles E. Messrs. D. Pledger, Jr., Richardson, Randolph C. JACKSON, Appellee. Franklin B. Mahoney, Washington, Jr., F. and John No. 15163. C., brief, appellee. D. were Appeals United States Court of retired,* District of Columbia Circuit. Before Justice Mr. Reed, Judge, Chief Prettyman, Edgerton, Argued Nov. Judge. March Decided Rehearing Denied Petition PER CURIAM. April I960. plaintiff’s wife died some months surgeon operation an the defendant after plaintiff
performed. The attributed operation and sued for mal-
death to jury
practice. The returned a verdict for plaintiff appeals. defendant and the negligence
Both and causation were in prevented plaintiff The court
issue. cross-examining expert witnesses,
* Sitting designation pursuant 294(a). 28 U.S.C. *2 Nelson, Washington, C., Mr. Rex K. D. Eugene Murphy, with whom Mr. X. Bazelon, Judge, Circuit dissented. Washington, C., brief, D. was on for appellant. George Windsor, Washington, Mr. H. C., George D. with whom Mr. E. C. Hayes, Washington, C.,D. was on the
brief, appellee. Edgerton, Fahy, Before Bazelon and Judges. Judge. FAHY, Circuit appeal from orders of the Dis- April 6, 1959, (1) trict Court of correct- provision of a of Feb- ruary 2, 1954, appellee husband was pay in certain circumstances to appellant wife a week for the $20 permanent maintenance of their two mi- nor whose was award- wife; (2) vacating ed to the an or- der of November in favor of $3,960 the wife alleged arrearages the husband for in the maintenance payments.
(1) The
basis
the court’s cor-
that,
rective action was
while
ex-
plicitly
so stated in the
February 2, 1954,
therein
for maintenance of the children
“only
husband was to be
and when the
jurisdiction;
children are
or sub-
ject
appropriate supplemen-
may
passed by
tal
or orders as
be
upon application by
plain-
the Court
[appellant],
temporary
tiff
removal
jurisdiction.”
of the children from oversight
judgments] arising
par-
orally
judge had stated
signing
the omission
corrected
open
before
ties
*3
February 2, 1954,
the
time
that
í:'.”2
judgment of
position to
“is in no
husband
you
however,
said,
the
is
that
both.
children
the
wife]
[the
or
mother’s failure
the
to abide
court’s
***
you
to blame
are
both
respect
der in
and visitation
residence
**
only
pay
him to
order
i will
rights of the
be enforced
father should
brought into
are
children
the
when
only may
as
her without
be done
twenty
a week
jurisdiction,
dollars
the
affecting provision
This
children.
the
you had bet-
So
maintenance.
for their
authority
although
be,
well
there
take
don’t
bring
in and
back
them
ter
contrary.
Phillips,
Phillips
the
v.
to
the
permission of
without
them out
152;
1956,
649,
77 N.W.2d
Neb.
pay-
stated
further
He had
Court.”
Sanges
Sanges, 1953,
44 Wash.2d
chil-
suspended
the
until
would be
ments
Eberhart,
265 P.2d
Eberhart v.
juris-
brought
the
into
back
dren were
153 Minn.
592.
N.W.
signing
delayed
the
diction,
he had
Wrongdoing
part
in
of a mother
judgment
this occurred.
until
such a
im
matter is of
not to be
course
judgment
Though
the
have said
as we
puted to the
Maschauer v.
children.
signed
explicit in
actually
was
Downs,
as
App.D.C. 142,
289 F.
provide that
respect
did
it
intended
the
judgment
A.L.R. 1461. But
the
in
here
to
have the
should
husband
the
judg
simply
its correct form
was not a
“at reasonable
children
the
with
visit
required
by
ment which
the
maintenance
con
places,” which we think
times
prevailed
father in the
situation
re
would
templated that
the children
Massachusetts,
after the mother
moved
par
jurisdiction. That
in this
main
government position
took a new
there
indicated
understood is
so
ties themselves
and made a home for the children with
conduct; payments
when
by
ceased
their
grandmother.
their
not now
We are
to Mas
the children
with
moved
plaintiff
passing upon
question
whether
September
sev
about
sachusetts
pro
father should
have been
judgment, without
after
en months
circumstances,
vide maintenance in those
demand
permission.
made no
She
and,
so,
if
to what extent. We are not
1, 1958.1
until October
husband
recovery
justified
requiring
from the
authority in
within its
arrearages
was
alleged
The court
father
which never
consistently
construing
judgment,
accrued because the circumstances were
language,
with
in accordance
its
validly
not within the
as
con
contemporaneous
intent of the
judge
and corrected
who
strued
understanding
par-
aswell
.as
signed
may add, also, that noth
We
it.3
underlying premise of the
The
ties.
before
in the record now
us shows
n maintenance
place
provision was that the
needs of the children suffered
the mother and
.of residence
payments
in the
the cessation
To
of Columbia.
District
be the
would
new
in Mas
home
their
circumstances
ex-
the omission of
clearer
:make
open
sachusetts,
leave
future
but we
regard
in that
could
plicitness
protection of the
interests
proceedings
60, Fed.R.Civ.P., 28 U.S.
plied. Rule
explained.
children,
hereinafter
C.A., provides that “errors therein [in
App.D.C.
certiorari
de
249 F.2d
period
August
Except
short
D.Ed.
356 U.S.
nied
outside the
remained
the children
2d
of Columbia.
District
parties
situation
financial
effect
there
no issue as
Here
evidence,
nor the needs
shown
parties
in cor
of notice
lack
during
now or
either
Kennedy
proceedings.
the children
rection
arrearages.
alleged
period
Reid,
States,
.492; Hayes
102 U.S.
v. United
(2)
vacating
pay
per
As
the order
the husband was ordered to
$20
awarding
order
of November
week for the
(5)
appellant $3,960,
60(b)
years
age.
au
Rule
then two and three
party of
requir-
thorizes the court to relieve a
did
order
ing
not include a
prior
a
judgment
keep
based
the wife to
the children
pro
vacated,
which has been
District of Columbia. But
is clear
Judge
vided the motion for such relief is
the record that the District
7 intended,
parties fully
within a
see
reasonable time. And
under-
Moore,
Practice,
stood,
*4
requirement
Federal
60.26[3]
Para.
a
that this
was
con-
(2d
1955).
support
motion
payment
Ed.
Here the
was dition for the
of the
money.
made
a few
within
months of the
The wife
removed
nevertheless
intervening
of November
No
the
children from the District.
rights
appellant appear
of
to have been
undisputed
provision
that the
di-
prejudiced.
accordingly
The time
was
recting
pay support
the husband to
mon-
quite reasonable.4
ey
upon
was
a
based
of
determination
the
ability
pay.
needs
children’s
and his
however,
affirming,
In
dowe
finding
There is no
in
evidence
the
prejudice
so without
to reconsideration
upon
record
the divorce decree that either
Court,
request,
the
of
District
contingent
their needs or his
were
question
of
maintenance for
chil
they lived,
pro-
on where
or that
father,
primary
dren
obligation
who has a
scription
removing them from
having
regard,
in that
in mind
required
the District of Columbia was
children,
the welfare
and needs of the
any considerations related to their wel-
past
present
as well as the
and the
fare.
future,
regardless
they
and
of where
are
having
hearing
been,
or have
and
in mind also
on
At
the husband’s mo-
parents
any
judgment
the situation
tion to
and
vacate the
for arrear-
ages,
words,
etc.,
other relevant factor.
other
In
court
clear
that
though
authority
originally proscribed
the court
had
was within its
removal
correcting
judgment
ground
its
to conform
that
the hus-
“
originally made,
with the decision it had
band’s
‘To
with
said
visit
proceedings
appropriate
places'
the court in
has
children at reasonable times and
* * *
obligation
protect
means in the District of Colum-
interests
parents
bia,
going up
and of their
re
not
to Massachusetts.”
thereto,
may
lation
But
these interests
when the wife’s counsel
be
reminded
appear.
only
rights
made to
the court that
visitation
were
stake,
responded:
the Affirmed.
“No, there is more than
that
it.
BAZELON,
Judge (dissent-
you
dealing only
If
aspect
with that
ing).
case,
then that would
February 2,
simple.
something
In the divorce
filed
decree
be
But there
granted custody
again.
District
question
Court
else
It is a
as to
of the two
per-
minor children to the wife
whether or not
was
there
fraud
rights
with
petrated upon
visitation
the husband.
That is
court.
provision
alimony
There was no
point.”
but
April 6,
just,
may
Should the correction order of
terms as are
the court
relieve
properly
party
“any
be construed
to con-
a
a final
justifying
a
Klap
stitute
vacation of
other reason
relief.” February
prott
States,
because in substance
v. United
335 U.S.
only
thereof,
prin-
614-615,
it is
correction
69 S.Ct.
93 L.Ed.
ciple
60(b)
(5)
ap-
Rule
would still
Erick Rios Bridoux v. Eastern Air Lines
,
ply
“any
Inc.,
and be
available under the
other
provision
(6),
60(b)
reason”
of Rule
denied 348
certiorari
75 S.Ct.
provides
that
motion filed
Finally, instant it is true that presented case the mother showing no evidence Appeals United States Court of they needs while children’s District of Columbia Circuit. were Massachusetts. But once a Argued Nov. seeking port entered, party *6 modify it must new circum- show Decided March justifying change. stances Common- Orlowitz, wealth ex rel. Orlowitz v. 366; Keezer, Pa.Super. 481, 172 94 A.2d Marriage (Morland ed. & Divorce 730 § 1946). Moreover, protection of the chil- depend upon dren’s interest does not govern principles ordinarily ad-
versary proceedings. The court stands parentis
in loco to the children. Accord-
ingly, where, here, parties have present
failed to evidence determin- interests, the children’s the court by requiring take must the initiative
such evidence.
I appealed would therefore set the or- aside
ders and remand the case
District Court for reconsideration supplemental findings record and re-
specting the interests of the children.
I would also defer decision the issues relating arrearages to the Kephart effect of Kephart, 1951, U.S.App.D.C. 89
certiorari denied