Bernsdorff v. Bernsdorff

D.C. Circuit

Bernsdorff v. Bernsdorff

26 App. D.C. 520, 1906 U.S. App. LEXIS 5117

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 4, 1906

DocketNo. 1578

StatusPublished

Cited by3 cases

This text of 26 App. D.C. 520 (Bernsdorff v. Bernsdorff) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bernsdorff v. Bernsdorff, 26 App. D.C. 520, 1906 U.S. App. LEXIS 5117 (D.C. Cir. 1906).

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Opinion

Mr. Chief Justice Shepard

delivered the opinion of the 'Court:

Considering the disabilities of the appellant, the case is a [523]*523hard one; but we cannot say that the appellee was not entitled to a decree for the maintenance of herself and child.

Had the husband actually secured the rooms in the city, of which he spoke, and invited his wife to remove thereto with the •child, and without her mother, he would have been within his undoubted right as head and support of the family; and his removal thereto would not have constituted desertion, or refusal •of maintenance. This, as we have seen, he failed to do. We •cannot regard the offer of the Virginia house as sufficient. Aside from the fact that she would have the like right to object to his mother becoming a member of the family, it was not a home in fhe proper sense of the word.

The occupation of the house by the appellant’s mother was at the will of the owner, and the joint occupation to which she had invited her son and his family was at her will and pleasure.

No objection has been raised to the amount of the maintenance •decreed, or to the allowance for the appellee’s attorneys’ fees and •other costs. The amount and the continuation of the allowance will remain subject to the control of the equity court. Should the parties reconcile their differences and resume their relations, the order for maintenance will necessarily be discharged. And if the husband shall, hereafter, in good faith procure a suitable home, and invite his wife to take up her residence therein, her declination will afford ample ground for discharging him from further charge of maintenance.

As the costs of this appeal will have to be paid by the appellant, and the same have been increased by the taking of a considerable amount of irrelevant and unnecessary testimony before the examiner, we decline to grant the appellee’s motion for an allowance for attorneys’ fees in addition to that made in the •decree below.

The decree will be affirmed with costs. It is so ordered.

Affirmed.

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Mr. Chief Justice Shepard

delivered the opinion of the 'Court:

Considering the disabilities of the appellant, the case is a [523]*523hard one; but we cannot say that the appellee was not entitled to a decree for the maintenance of herself and child.

Had the husband actually secured the rooms in the city, of which he spoke, and invited his wife to remove thereto with the •child, and without her mother, he would have been within his undoubted right as head and support of the family; and his removal thereto would not have constituted desertion, or refusal •of maintenance. This, as we have seen, he failed to do. We •cannot regard the offer of the Virginia house as sufficient. Aside from the fact that she would have the like right to object to his mother becoming a member of the family, it was not a home in fhe proper sense of the word.

The occupation of the house by the appellant’s mother was at the will of the owner, and the joint occupation to which she had invited her son and his family was at her will and pleasure.

No objection has been raised to the amount of the maintenance •decreed, or to the allowance for the appellee’s attorneys’ fees and •other costs. The amount and the continuation of the allowance will remain subject to the control of the equity court. Should the parties reconcile their differences and resume their relations, the order for maintenance will necessarily be discharged. And if the husband shall, hereafter, in good faith procure a suitable home, and invite his wife to take up her residence therein, her declination will afford ample ground for discharging him from further charge of maintenance.

As the costs of this appeal will have to be paid by the appellant, and the same have been increased by the taking of a considerable amount of irrelevant and unnecessary testimony before the examiner, we decline to grant the appellee’s motion for an allowance for attorneys’ fees in addition to that made in the •decree below.

The decree will be affirmed with costs. It is so ordered.

Affirmed.

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Bluebook (online)

26 App. D.C. 520, 1906 U.S. App. LEXIS 5117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernsdorff-v-bernsdorff-cadc-1906.

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