*1 MILLER, BAZE- K. Before WILBUR EAHY, Judges.
LON and
PER CURIAM. in the record in unable to find Being supports evidence which below appellant, defend- adjudging order contempt, the order reversed there, ant cause remanded. ordered. is so (two cases). v. SCHOLLA
SCHOLLA
Nos. Appeals Court of States
United District of Circuit. May
Argued 21, 1952. Jan.
Decided Rebearing in No. 11267
Petition Denied Jan. *2 following
vealed the
facts. Mrs. Scholia
children,
Barbara,
Paul and
resided
together Virginia,
Scholia,
and Mr.
de-
fendant, resided
Colum-
By
bia.
decree of the
Court
Circuit
County,
Florida, May
Lake
Mrs.
granted
Scholia
absolute divorce
couple’s
children,
three
Barbara,
Sandra,
Paul
plaintiffs,
now living with her
The decree
father.
payable
monthly,
allowed $250
to. Mrs.
Scholia for
of herself and the chil-
dren.
pay-
The defendant has made no
January, 1951,
ments
leaving
since
Mrs.
Scholia and the children Paul and Barbara
dependent upon
inadequate
Mrs. Scholia’s
earnings
employee,
aas Government
al-
though Mr. Scholia’s income exceeds $1000
per month. After the divorce he remarried
and has one child
In
wife.
Barbara,
behalf of the
Paul and
children
though
herself,
not for
prayed
Mrs. Scholia
monthly
allowance for
reasonable
their
maintenance.
her own behalf she
sought
$500,
judgment for
accrued install-
ments under the Florida decree. She also
asked for costs and
A
counsel fees.
true
copy of the Florida decree was exhibited
complaint.
The defendant
dismiss
moved to
The court granted the mo
tion.
It
as non
residents,
precluded
were
from suing for
Columbia,
maintenance in the District of
Ballard,.Washington,
A.
G.,
Frederick
D.
jurisdic
hence that the court was without
Thomas,
Eugene
Jr.,
with whom
B.
Wash-
entertain
action.
C.,
brief,
ington, D. was on the
T.
for Lois
think the court erred. According to- the
Scholia.
complaint the father is a resident of the
Young, Washington,
C.,
R.
Elizabeth
D.
District of
Columbia. The suit
mainte
Paul F. Scholia.
personal,
transitory
nance is a
action.
CLARK,
Before.
PROCTOR and
Vertner, 1934,
Vertner v.
WASHINGTON,
Judges.
Circuit
Melvin, 1942,
See Melvin
(con
PROCTOR,
Judge.
opinion
curring
Judge Stephens).
cross-appeals
These are
from an order of complaint
general
equity
invokes
dismissing
complaint
the District
grant
maintenance to the
attorney
(11268)
allowing
a fee to the
Schneider,
children. Schneider v.
plaintiffs (11¿67).
U.S.App.D.C. 383,
Wed
Scholia,
Wedderburn, 1917, App.D.C.
Lois T.
as next friend for her derburn v.
Barbara,
minor children Paul and
sued Paul 149. In view of the
residence in
Scholia,
Columbia,
F.
divorced husband and
the District
fa-
were
children
complaint
therein,
ther of said
entitled to
him
notwithstanding
children.
re-
sue
Virginia.
James,
The Dis-
A.2d
Dom.Rel.Ct.
their own residence
James
study
A
makes
of these
that clear.
N.Y.S.2d 460.
trict of Columbia Code
disregarding
have cases
Court shall
indicates that without
provides that the District
*3
equity
judicata,
the doctrine
in law and
of res
extended
cognizance “of
cases
all
upon
relief
either of which
the basis of a material
parties,
"between
both
parties,
found
said
sufficient to
within
resident or
shall be
legally
have
added.)
justified
D.C.Code
modification
(Emphasis
district.”
by
terms of the
the court
existing decree
306, 1931.
§
upon
which
which
theory
entered it. The
ruled that in view
The court also
these decisions rest
that alteration of
is
only remedy in
the
of the Florida decree
conditions
of a de-
warranting modification
by suit in debt
was
behalf
the children
alimony
produces
cree for
or maintenance
installments.
accrued
for
amount of
the
factual
adjudication
issues for
which were
the
Flor
Thus in effect the court held
made,
non-existent when
decree was
the
judicata.
agree
We
ida
was res
adjudged.
and which
been
have never
This, however,
is not to
that conclusion.
Hence,
entertained,
may
juris-
a suit
if
argued,
say, as
been
the
parties
established,
diction over the
with-
subject
jurisdiction of the
lacked
out
ju-
transgressing the
of res
doctrine
For,
pointed out that the
matter.
we have
short,
dicata.
create new
new facts
is-
compel a
power
did
fa
have the
Although
sues.
this court has never di-
children.
ther to
his minor
So
rectly passed upon
point,1
ap-
have
power
exercised in the
could have been
plied
principle
cases. Boone
fact,
except
shown
case
for
Boone, 1945,
152,
v.
U.S.App.D.C.
complaint itself, that
maintenance
153;
1943,
Cook,
F.2d
U.S.App.
Cook v.
adjudicated by
children had been
388,
945;
Boone,
D.C.
Boone v.
Yet,
judicata
Florida
res
does
1942,
399,
14,
cer-
jurisdictional
operates
create
a
bar.
denied, 1943,
tiorari
319 U.S.
63 S.Ct.
only by way
estoppel.
Baltimore S. S.
Yet,
2U Inc., Ruby Minar Lee that this has been made suggestion Hammett, 1931, governed by case Schneider should allow where this court affirmed the Schneider, our supra, which decided that suit, equity ance plaintiff of costs to a authority to award District Court had notwithstanding of the bill. dismissal notwithstanding maintenance for a child only objection raised the allowance support. But that Nevada decree for its upon argu costs and counsel fees rests' that the ruling grounded decision juris ment that lack there was total jurisdiction over the lacked Nevada court action, leaving the sup- diction over the cause of obligation of the father to dismiss *4 but to port, father of the fact that neither in view this conten ruling against Our domicile. It seems nor son had a Nevada disposes present question. We of the present in not even also that the son was dispute general take it there is no However, present case the State. equity powers permit an ques- of the court award validity the Florida a wife be, costs and counsel fees behalf of tioned, for there as indeed it could suing settled for maintenance. This was jurisdiction the court to w.as undoubted Tolman, 1893, App. early 1 v. Tolman provision for maintenance of 299; Shaw, 1894, App.D.C. 2 D.C. Shaw v. actually living in who were authority sustained custody of their Florida in the care Columbia, Supreme F.S.A., Court of the District of Fla.Stats.1949, 65.14. mother. See § predecessor Court, present District to the properly cannot override This court to make Bates such allowances. principles disregard the or Bates, 1944, v. full faith and credit clause of the Constitu 723; Melvin, supra; Melvin v. Lesh they in a case tion. The obstacles Lesh, 1903, App.D.C. authorizing legislation call for like this The Court also ruled that the establishment our District Court final $500, claim of in- Mrs. Scholia for overdue jurisdictions other decrees of the courts of decree, under the fell stallments Florida maintenance, alimony and the granting jurisdiction within the exclusive decrees, es when so Municipal Court.2 We with that rul- tablished, by same means and methods ing. provided by our laws for enforcement of for local As the law now stands judgment decrees. The of the District Court eign decrees cannot be so enforced. Wors Affirmed. ley Worsley, App.D.C. denied, 1935, certiorari WASHINGTON, Judge (dissent- Grant, 79 L.Ed. Grant v. ing). 1935, App.D.C. 146, F.2d Davis years For some it has been the rule in Davis, L.R.A., 1907, App.D.C. 258, 9 jurisdiction this N.S., 1071. ones, decrees, unlike domestic be en- cannot equitable process. forced here means of cross-appeal By defend holding against A woman such a decree allowing below attacks order costs ant only can sue her ex-husband him at doing fees. In so we think counsel debt, ordinary for arrearages as on an authority
the court acted
its
within
have accrued under the
discretion,
decree.1
notwithstanding dimissal of the
Worsley Worsley, 1935,
App.D.C.
§
2. 11 D.C.Code
1951:
“(a)
Municipal
certiorari denied 294
Court for
Dis-
* * *
725, 55 S.Ct.
shall have ex-
trict
Grant, 1935,
civil
actions
Grant
clusive
opinions in
these cases
in which
claimed value of
Davis,
rely
part
property
damages
personal
on Davis v.
or the debt or
attorneys’
L.R.A..N.S.,
App.D.C. 258,
claimed,
interest,
But
exclusive of
* * *
costs,
not stand for
does not exceed
the Davis case does
fees
* *
specific
$3,000
proposition
sum of
there can be no
who
must
fathers
Columbia haven
divorced
children in
She
arrearages
enough
seek
evade the
until
survive
somehow
accrue,
today’s ruling
their families.
must
of suit
the cost
to be worth
proc adds another
restrictive line
service of
to this
obtaining
then succeed
majority
cases. The
that the chil-
remedi
holds
ess,
remain
and must nevertheless
presumably
on dren—and
the ex-wife—have
property
also find
if
cannot
less
independent
auxiliary
or additional
increasingly
levy. Recently this
which to
right to maintenance
law:
problem of
under District
approach2 to the
discredited
right
society
pre-existing District
to mainte-
increasingly mobile
cut
of nance is
off
the doctrines of
decisions
supplemented
other
has been
credit,
judicata and full
we
faith
after
Kinney Kinney
this court.
to maintenance under
here for
cannot even sue
ex-wife
adjudicated.
law is
I
hold-
believe
they have accrued under
arrearages, when
approach
ing is inconsistent with
subject
modification
to retroactive
a decree
Schneider, took in Schneider v.
jurisdiction.3 Such modifica
issuing
*5
juris U.S.App.D.C.
543.
number of
permitted
large
in
tion is
a
There,
think,
realistically I
we
the
majority.4
stated
And in
perhaps a
dictions—
question
father, by
to ibe “whether a
in-
to surrender a
we refused
Fowler Ross
stigating
to the
and abetting a collusive divorce
for extradition
delinquent father
children,
foreign
in a
jurisdiction,
and
decree
can es-
sheltered his
which
from
state
adequate
cape
the
trial,
for
the
because
he fled after his
imposed
on him the
of
son
of
(or
law
non-support was committed
of
crime
a
gave
his domicile.” We
flat answer—No.
said)
absence from the
during his
so
authority, I
On that
reverse
tendency
would
and
of these
cumulative
state.
remand.
the District of
has been make
decisions
point,
Griffin,
foreign
court
the
cites Griffin v.
in this
decree
of a
enforcement
page
jurisdiction.
66 S.Ct.
90 L.
263.
Ed.
which does
seem relevant.
Annotation,
A.L.R.2d 862. “The
See
2.
Compare Kephart
Kephart, 1951,
is
more recent cases
trend of the
decided
U.S.App.D.C. 373,
certio
a
the view
that
line with
in
rari denied 342 U.S.
alimony represents
than
more
decree
387-389,
concurring opinion U.S.App.D.C.
debt,
obliga-
a
its
is
natural
that
basis
the
result,
F.2d69 1-693. As a
the
support his wife
of
husband
the
only
in
a case
ex-wife
the
such
can
return to
public
children,
is matter of
jurisdiction
issuing
judg
and seek a
obligation is first
the
in the state
whether
concern
judicially
gross
ment or
on
decree
the accrued
the for-
declared
of
Collins,
amounts
1948,
Cf. Collins v.
there.
urgency
elsewhere, that
the
um or
160 Fla.
the restriction it now children, says, ability If, the wife wife or opinion evaded. hardly court ex-husband to them.6 It shows a likely, therefore, seems changed pleading since the for circumstances have requirement made, promote economy then will ef eign maintenance award ficiency justice. and full faith in the the bars of .administration simply disposing down. The local choice is between may be let it adjust the award the ex-wife’s on when claim the merits able the'majori decision, postponing But first made and such light facts. new event, perhaps changed serious requires, any to the detriment of her ty Otherwise, the self or her claim is while re pleaded. run, jurisdictions appear local has stated. Nor do other reasoning seems to impose any any requirement such pleading there been reason to believe and, To the extent knowing same circumstances.7 change, award, they regard but cannot renounce existence maintenance it any other decree as limitation on to make its own requirement award maintenance under pleading award. Such law,8 apparently spirit local suffices that the new contrary of the Federal Rules. ability justify facts which their action be de Recognition need veloped hearing in the course likely to are provide maintenance merits. implicit general willing with time is *6 modify to their own courts mainte-.
ness of course, Practically speaking, permit- of decrees, prospectively and some nance upon ting issuance of a domestic decree retroactively. light In the of times even changed circumstances is basis of attitude, judicial prevailing entirely this it seems with rule consistent of that, incongruous Worsley insist unless (supra, 1)— rather to note Grant cases and change alleged, change pleaded. in circumstances or not must be whether my entirely un proper must assume that remain court view it is that these days thus, changed. Seldom, especially substance, these cases be should disre- inflation, impossible will it be to show that the existence of a for- garded. I of regard jurisdic Indeed, (same). seem to some courts In these Y.S.2d 460 implicit simply tions, appears in the of circumstances ex-wife authorizing pleads of time and loca facts difference mere the local statute Durfee, 1936, grant 293 tion. See Durfee court maintenance. to 209 N.E. Mallina Mass. Jersey courts have that a for 8. New held Mallina,1938, 4 Misc. N.Y.S.2d 167 eign prospectively Kane, 1949, App.Div. Karchmer Cf. is not so final full modified it merits N.Y.S.2d as to installments. faith and credit future Jersey: Levy Levy, 1939, Conwell, A.2d 7. New N.J. Conwell v. (award Goodman, 17 N.J.Misc. based on A.2d Cf. Goodman v. present toas circumstances de evidence A. N.J.Misc. 716. See “proofs”; Sackler, Fla., 1950, no indication from rived Sackler v. 292,18 pleaded); present were A.L.R.2d Massachusetts Durfee, supra supra, Durfee, did not Massachusetts: Durfee in Durfee N.E, (new 399] Mass. full faith and [293 consider only passing making made reference credit all award. award at the new * * * “divergent Compare supra Kane, conditions and Karchmer v. [275 to time”; changed (the App.Div. 715, 82] circumstances not “full earlier 87 N.Y.S.2d ; pleaded) York: Ambrose v. Am clause New faith credit does brose, 1951, prevent 200 Misc. 102 N.Y.S.2d consideration the needs of changed (no par indication that circum child and the circumstances of both pleaded); Farah, Farah v. award stances Dom. ents and an accordance there Rel.Ct.1950, (same); N.Y.S.2d with.” James, Dom.Rel.Ct.1946, James v. 59 N. obligation held under should be enforceable eign maintenance award against a defendant the issuance domiciled Dis impose bar to to trict, decree, provide for to enforceable one’s children.11 domestic maintenance obligation process, cir- under District law is equitable when means of separate when, any distinct changed from similar obli even cumstances have —or gation under the Florida or change, is of- law of without new evidence state, separately other quite should en go fered.9 I further. But would view, Cf. and, my forceable. Industrial v. Mc unrealistic, unnecessary, Comm. Cartin, 1947, attempt apply unwise, doctrines way L.Ed. 1140. Such in no judicata and full faith upon validity, trenches the collecti adequate sup- right in bar a child’s here, bility of maintenance awards de port domi- creed under Nor does it in law. migratory cile.10 divorce case relitigation previously volve itself; settled speak can the is nor child cannot The issues sues. are different. The for ultimately which will shelter community eign decree can be sued on and will receive represent the child the interests either of full faith and credit. Or domestic community or the child. When a obligation can be Double provide support, enforced. re father fails to covery period the same time parties before should his domicile which has permitted; of course not—and need not—be it should be entitled make a decree otherwise, those entitled needs, should present which will reflect child’s totality be allowed to enforce parents, situation of its rights.12 parents regard agreed what the without upon some earlier time and caused Substantially reasoning approach in the decree of a embodied adopted were this court in Schneider v. Schneider, supra, where we prospectively
I think the to a en- under District of Columbia law depend forceable domestic need not spite “still circumstances, exists in *7 proving changed decree”,13 [foreign] though validity pleading more than them. Issues unchallenged. the decree was full faith and credit need ground decision plague disposition fact such cases as foreign An had no over this. enforceable decree for obligation support side-by-side maintenance can exist child. an Halvey Halvey, pay, 330 U.S. an a decree does not make it ordi- 9. obligation.” nary continuing S.Ct. 1133. but a debt Yarborough Yarborough Yarborough, 1933, 10. Cf. 12. The decision v. Yarbor 202, 213, ough, U.S. S.Ct. L. S.Ct. Sackler, ap Ed. see Sackler v. L.Ed. barrier to an 78 proach. There, supra; Goodman, supra. specifically Goodman the court loft question open power obligations, persist such, 11. “These jurisdiction of the father’s domicile * * *_ They merge do not into such provide fully adequately him make order or as to decree so iden lose their of his notwith tity primary obligations, in the sense standing the terms of a decree. merged judg that a debt becomes into a page 213, page at 290 U.S. at S.Ct. continuing ment. Because nature Subsequent decisions leave little obligations, orders and decrees Supreme doubt will find liquidation for their and enforcement are power Halvey exists. that such vey, v. Hal application. temporary They but do 330 U.S. S.Ct. modify obligations, not create or even L.Ed. Industrial Comm. v. merely but t.o do with their have enforce McCartin, 1947, supra, Goodman, ment.” Goodman v. L.Ed. 3140. page A. at also Sackler v. Sack : ler, supra, page page 385, at 294 “The at obligation page mere transformation of an specific form, into more such as adequate judicial remedies provide measure fixing the an award It could make carry out their obli- men who fail against But it under its law. obligation of this gation their wives and families. un- thereby cancel could if, power. But as in use that We should or render der District case, judicial fail here. unenforceable relief, community has no alternative court, adopting enlightened Congress apply necessary This for the but to case, legislation. approach of the Schneider