*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

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 99 L.Ed. 647. time, within reasonable children to in “defiance Florida and later: ‘rights “ and “of * court” the [visitation] only concerned amI ” petition, the father.’ On the father’s aspect, concerned I am not one with suspended trial only concern- parties. I am support out of while the child was put upon.” I was whether ed with reversed, Superior the saying: Court state. findings is there nor are no There against re proscription that the evidence duty “[T]he the father to by, consist or even moval was port year a three old is well child the child with, interests the best ent nigh absolute. Here the [trial] however, assume, willing to I am ren.1 duty court relieved the father of his as the well proscription, as that support because some conduct separate money, affecting of the mother not her fit- contempt pro ly and enforceable valid ** Custody ness for *. n ceedings. the two But I submit things. are two different linked, requirements mother, by depriving If this the fa- *5 first, contingent upon the second visitation, ther of the of children’s consideration without guilty contempt (which of court consideration, the welfare. Without hold), we do not subject her, it could wife, bene punish without to effect is penalties; never but the child to and by auto contempt proceedings, fit of it does not relieve the father of the of need matically depriving the children duty support to the child under cir- me, This, con to support. it seems ed cumstances such as these.” 158 Pa. public policy which fundamental travenes Super, page 580, page 45 A.2d at over of children the interests holds that 924. Children ride other considerations. all See also Harding, 1957, levers of enforcement Elkind used as v. 104 cannot they App. any 322, can Ohio 752, 753, punishment more than 143 or N.E.2d legal game pawns where in a as court refused “the be “used best in- conceptions status terests of the child” to to work out a construe divorce chess Boone, rights.” way decree in such duty property Boone v. a and the father’s 154, support 152, F.2d 150 to 1945, U.S.App.D.C. a child 80 would be condi- 1958, Kaiser, 153, Accord, Kaiser tioned keep v. the mother’s 155. to 601, jurisdiction. 861. child 352 90 N.W.2d within the Mich. my many jurisdictions seems to me Accordingly, hold view also fol *** lows proper to de- court’s decision in Maschauer that “it Downs, v. 1923, App.D.C. 142, support which 53 prive to children of the 289 540, 543, F. supposed 32 they A.L.R. 1461. There the are entitled because departed Pendray family mother v. mother.” home with misconduct just cause, taking 284, Tenn.App. out Pendray, 1951, 245 the minor children 35 204, her. We This true even held the father liable to S.W.2d 206. person though places supplied third con- for necessaries misconduct children, saying, tempt ex to the do not think In Commonwealth “We court. 1946, mother, Firestone, improper, 158 Pa. the conduct if rel. Firestone v. charged instance, Super. should be to 45 them chil [the A.2d 2 permanently removed the .” dren] the mother rights: always duty child is “It is visitation “That welfare support primary child, has cases father to minor criterion in part many in this no his times ‘and conduct wife been reaffirmed Bartlett, duty’.”); 94 v. free him from his Bartlett could Gaidos 190, 192, 193, Gaidos, 1956, 293 Wash.2d P. v. citing 5.11, cases. parent’s (“The extent of a 2d support duty to contribute his Aaron, 1957, 228 Ark. 2. Accord: Aaron v. depends upon the child’s need minor child (father denied S.W.2d where, here, father’s And as Appellant, REISSNER, Max has been estab his children duty lished, them is his v. diminished or because terminated ROGERS, Attorney William P. as General properly others. child is cared United States and Successor sup means must “A father of sufficient Ivy Property Custodian, the Alien port child, not a defense it is Priest, Baker Treasurer the United mother-custodian, that either the States, Appellees. itself, independent child has means.” Fire ROGERS, Attorney v. William P. Commonwealthex rel. Firestone General of the United States Pendray Successor stone, supra. Accord, Pend Property Ivy Custodian, the Alien supra; Gaidos, ray, Gaidos v. Priest, Baker Treasurer of the United Keezer, Wash.2d Marriage 293 P.2d States, Appellants, (Morland ed. Divorce & 1946); Madden, Domestic Relations (1931). REISSNER, Appellee. Max Nos.

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 96 L.Ed. 702. parent’s pay; 192; Note, Utah P.2d 33 Texas quid quo pro jurisdictions (1955). the visitation L.Rev. 749 Most privilege.”); Hurt, Hurt hold that a father’s Ill.App. 427, 638; N.E.2d White v. terminated White, Sup.Ct.1954, 205 Misc. mother’s misconduct. 39 Am.Jur. Par- Baker, N.Y.S.2d (1942). Baker v. & ent Child