Buford v. Buford

D.C. Circuit

Buford v. Buford

156 F.2d 567, 81 U.S. App. D.C. 169, 1946 U.S. App. LEXIS 2609

CourtCourt of Appeals for the D.C. Circuit

DecidedJune 28, 1946

Docket9178

StatusPublished

Cited by13 cases

This text of 156 F.2d 567 (Buford v. Buford) 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

Buford v. Buford, 156 F.2d 567, 81 U.S. App. D.C. 169, 1946 U.S. App. LEXIS 2609 (D.C. Cir. 1946).

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Opinions

EDGERTON, Associate Justice.

The plaintiff appeals from a judgment for the defendant in a suit for absolute divorce on the ground of five years voluntary separation without cohabitation.¹ Ap[568]*568pellant, the husband, filed the suit in August 1944. Appellee’s answer admitted that the' parties had separated in February 1939 and had not lived together afterward. The answer asserted that appellant’s cruelty forced appellee to leave him, and argued that, for this reason, the separation was not “voluntary”.

The District Court found the following facts. The parties were married in 1935. On March 23, 1939, appellee sued for limited divorce on the ground of cruelty. Divorce was denied but maintenance was granted. On May 12, 1941, appellant sued for absolute divorce on the ground of desertion. Divqrce was denied and maintenance was also denied. Appellant went through a marriage ceremony with a third person in Maryland in 1943, and there is no showing that he is not living with her. Additional facts, concerning which the court made no findings, were proved by undisputed testimony. Appellant testified that his wife left him in February 1939 because they “did not get along” and “she maintained that [he] was unkind to her”; they did not live together afterward; and he never asked her to return. A man who lived in appellant’s house testified that appellee left about 1939.

The court dismissed the complaint on the ground that it did not appear that the separation was voluntary. By his Maryland marriage, the court said, appellant “put it beyond the power of the parties to say whether the separation was voluntary or not”. We think this erroneous. We think there was ample evidence that the separation was voluntary and no evidence that it was not.

According to the undisputed testimony, appellee chose to leave appellant. In other words she left voluntarily. If her choice was influenced by unkindness, or even cruelty (of which there is no evidence), on his part, that is immaterial under our statute. To say that there is provocation or justification for an act is not to say that the act is involuntary. The purpose of the five-year law is not to punish vice or reward virtue, but “to permit termination in law of certain marriages which have ceased to exist in fact.”² Since there is no evidence or contention that appellee afterward changed her mind and wished to return to appellant, it is obviously probable that she did not and the law presumes that she did not.³ It is true that appellee’s husband, the appellant, may not have consented to the separation when it began. But, paraphrasing what we said in the Parks case, his silent acquiscence made the separation voluntary in the statutory sense less than six months after it began and therefore more than five years before this suit was brought. When a separation has continued more than five years and neither party has tried to end it a divorce should be granted.

Appellant’s invalid remarriage did not preclude appellant and appellee, who continued to be lawfully married, from ending their separation and resuming life together. There is no evidence that the remarriage caused either appellant or appellee to try, or even- to wish, to resume life together. The remarriage is therefore immaterial in this suit. If it be assumed that appellant’s bigamy led to adultery, that is likewise immaterial here, since recrimination is no longer a defense to a divorce suit.⁴

The proposition of the Bergheimer case, 17 App.D.C. 381, that parties to a divorce suit are not competent witnesses, ceased to be law long ago. Though testimony is necessary and admissions in pleadings are not enough,⁵ the testimony of a party need not be corroborated when it is undisputed, the suit is contested, and no-collusion appears.⁶

Reversed.

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EDGERTON, Associate Justice.

The plaintiff appeals from a judgment for the defendant in a suit for absolute divorce on the ground of five years voluntary separation without cohabitation.¹ Ap[568]*568pellant, the husband, filed the suit in August 1944. Appellee’s answer admitted that the' parties had separated in February 1939 and had not lived together afterward. The answer asserted that appellant’s cruelty forced appellee to leave him, and argued that, for this reason, the separation was not “voluntary”.

The District Court found the following facts. The parties were married in 1935. On March 23, 1939, appellee sued for limited divorce on the ground of cruelty. Divorce was denied but maintenance was granted. On May 12, 1941, appellant sued for absolute divorce on the ground of desertion. Divqrce was denied and maintenance was also denied. Appellant went through a marriage ceremony with a third person in Maryland in 1943, and there is no showing that he is not living with her. Additional facts, concerning which the court made no findings, were proved by undisputed testimony. Appellant testified that his wife left him in February 1939 because they “did not get along” and “she maintained that [he] was unkind to her”; they did not live together afterward; and he never asked her to return. A man who lived in appellant’s house testified that appellee left about 1939.

The court dismissed the complaint on the ground that it did not appear that the separation was voluntary. By his Maryland marriage, the court said, appellant “put it beyond the power of the parties to say whether the separation was voluntary or not”. We think this erroneous. We think there was ample evidence that the separation was voluntary and no evidence that it was not.

According to the undisputed testimony, appellee chose to leave appellant. In other words she left voluntarily. If her choice was influenced by unkindness, or even cruelty (of which there is no evidence), on his part, that is immaterial under our statute. To say that there is provocation or justification for an act is not to say that the act is involuntary. The purpose of the five-year law is not to punish vice or reward virtue, but “to permit termination in law of certain marriages which have ceased to exist in fact.”² Since there is no evidence or contention that appellee afterward changed her mind and wished to return to appellant, it is obviously probable that she did not and the law presumes that she did not.³ It is true that appellee’s husband, the appellant, may not have consented to the separation when it began. But, paraphrasing what we said in the Parks case, his silent acquiscence made the separation voluntary in the statutory sense less than six months after it began and therefore more than five years before this suit was brought. When a separation has continued more than five years and neither party has tried to end it a divorce should be granted.

Appellant’s invalid remarriage did not preclude appellant and appellee, who continued to be lawfully married, from ending their separation and resuming life together. There is no evidence that the remarriage caused either appellant or appellee to try, or even- to wish, to resume life together. The remarriage is therefore immaterial in this suit. If it be assumed that appellant’s bigamy led to adultery, that is likewise immaterial here, since recrimination is no longer a defense to a divorce suit.⁴

The proposition of the Bergheimer case, 17 App.D.C. 381, that parties to a divorce suit are not competent witnesses, ceased to be law long ago. Though testimony is necessary and admissions in pleadings are not enough,⁵ the testimony of a party need not be corroborated when it is undisputed, the suit is contested, and no-collusion appears.⁶

Reversed.

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Bluebook (online)

156 F.2d 567, 81 U.S. App. D.C. 169, 1946 U.S. App. LEXIS 2609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buford-v-buford-cadc-1946.

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