Rhodes v. Rhodes, 36 App. D.C. 261

Rhodes v. Rhodes

36 App. D.C. 261 | D.C. Cir. | 1911

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first assignment of error raises the question of the power of the equity court to make the decree for permanent alimony, the enforcement of which was sought in this proceeding. The jurisdiction of a court of equity, in this District, to grant alimony as an independent relief was declared in Tolman v. Tolman, 1 App. D. C. 299-311. Since that decision the power has been directly conferred by the Code, see. 980 (31 Stat. at L. 1346, chap. 854). By the terms of this section the court may declare that the husband shall pay the wife “periodically, such sums as would be allowed to her, as permanent alimony in case of divorce.” The decree referred to orders payment to be made periodically, as “permanent alimony.”

The court having the power to order payments made periodically and having expressly exercised that power, its decree is not invalidated by the additional words. The effect of the decree is to.be determined by its substance, and not by its mere form.

The additional words, “as permanent alimony,” may be rejected as superfluous.

2. The answer to the petition and rule to show cause, drawn by the respondent himself, is inartificial, but alleges a fact that, if true, is a complete answer. That fact is the dissolution of the marriage in September, 1909, by a decree of the circuit court of Fairfax county, Virginia. As there was no replication or denial of the facts alleged, and the hearing was on the petition and answer, the facts alleged in the answer must be taken as true. Arnold v. Carter, 19 App. D. C. 259, 264; Alfred Richards Brick Co. v. Trott, 16 App. D. C. 293-299. As was said in the case last cited: “If the plaintiff concludes to set down the cause for hearing upon bill and answer, *267the case is quite different. In that case, it behooves the plaintiff, however, to consider well whether he will rest his case upon the bill and answer, or whether he will reply to the answer; for it must be borne in mind that, in a hearing upon a bill and answer, the answer will be taken to be true in every point and particular, because the defendant has been, by the action of the plaintiff, precluded from substantiating it by proof. The plaintiff should be careful, therefore, to look attentively into the answer, and see that the effect of the defendant’s admissions is not avoided by any new matter. If such should be the case, he should reply to the answer, and proceed to establish his case by evidence. It may sometimes, also, be found to be necessary to reply to the answer in order to put the defendant to the proof of the allegations of his answer; as where he confesses the matter alleged by the plaintiff, but sets forth some further matter in avoidance or in bar of the plaintiff’s equity.” See also Bohrer v. Otterbach, 2 App. D. C. 78-79.

While it is true that an answer to a rule to show cause why a party shall not be committed for refusal to obey a decree is not to be regarded with the strictness applicable to an answer to an ordinary bill for relief (Tolman v. Leonard, 6 App. D. C. 224-234; Moyers v. Cummings, 17 App. D. C. 269-281), yet the facts alleged therein, if a sufficient answer to the rule, cannot be disregarded, and the plaintiff who, without demurring or replying thereto, sets the cause down for hearing on petition and answer alone, must be held to have admitted the truth of the facts alleged in the answer.

3. It is contended on behalf of the appellee that the facts set forth in the pleadings show that the Virginia court, granting the divorce, was without jurisdiction, and its decree is therefore void. The answer, while inartificial and lacking precision, nevertheless alleges that his legal residence is in the State of Virginia, where he formerly lived with petitioner; and that he obtained a decree of divorce from her in September, 1909, in a suit filed for that purpose in the circuit court of Fairfax county, a copy of which decree is attached to the *268answer as an exhibit. As that court had jurisdiction to decree a divorce in a proper case, the presumption ot regularity attaches to its proceedings in the absence of proof. It is insisted, however, that proof of want of jurisdiction is furnished by the recitals of the pleadings in the suit that terminated in the decree for alimony November 2d, 1903. As before stated, those pleadings are embraced in the transcript, but it does not appear that they were introduced or relied upon as evidence to disprove the allegations of the answer. We are not prepared to say that they can be taken notice of as evidence in disproof of the answer without a replication thereto, or being offered in evidence. But assuming that they may be, we are of the opinion that they do not- conclusively show that respondent had not a legal residence in the State of Virginia, or that the petitioner had no residence there with him at the time of separation. It is true that the bill filed September 10th, 1903, alleges that complainant is a resident of the District of Columbia, and that she and respondent had resided therein since about the year 1884. And it is also true that the answer thereto did not expressly put that fact in issue. It was not necessary to the jurisdiction in that proceeding that the defendant should have been domiciled in the District of Columbia. That he was found and served with process therein is all that was necessary. Moreover, the answer of the defendant' shows, and the decree recites, that he appeared and consented’ to the decree for alimony, and nothing else was apparently adjudicated.

It may be, upon a disclosure of all the necessary facts, th"t the courts of this District are not bound to give full faith and vredit to the decree of the Virginia court, for the reasons given in Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 A. & E. Ann. Cas. 1. All that we now hold is that the facts shown in the record are not sufficient to bring the case within the principle of that case. It is a serious thing to refuse to give credit to the judgments or decrees of the courts of a State of the Union whose generál jurisdiction of the subject-matter is undoubted, by reason of special facts *269or circumstances that would deprive them of that jurisdiction in a particular case. The seriousness of the situation is increased by the fact that the appellant, upon the faith of the decree attacked, has contracted another marriage which would be void if that decree was rendered without jurisdiction of the rem, or of the person of the defendant therein.

Considering, then, all of the facts alleged in the several pleadings as evidence, we are of the opinion that they are not sufficient to enable us to declare that the Virginia decree of divorce is entitled to no credit.

The decree will therefore be reversed, without costs to either party, and the cause remanded for further proceedings in conformity with this opinion. Reversed.