David Posnick v. Ethel Posnick

241 F.2d 442, 100 U.S. App. D.C. 37, 1957 U.S. App. LEXIS 3477

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 7, 1957
• Docket: 13237_1
• Status: Published

Opinions

PER CURIAM.

After our decision in Posnick v. Posnick, 1955, 96 U.S.App.D.C. 198, 225 F.2d 37, the judgment of the District Court was revised to conform thereto. Mr. Posnick promptly paid| to Mrs. Posnick the moneys due her under the revised judgment, and then moved to terminate or reduce the maintenance payments to her ordered by that judgment. This motion was denied by tlje District Court, not on its merits but oh the ground that our opinion (cited above) precluded any change in the rate of¡ maintenance unless some factor was shown other than the payment of the money judgment.

We think the court misread our opinion, which was not intended so to limit the District Court’s power to pass on questions of maintenance. The appellee wife urges, however, that in any event the action of the District Court in denying appellant husband's motion should not be disturbed because the old rate of maintenance — thus allowed to continue — is in fact a fair and just one, especially in view of her own changed circumstances and her tax situation. But we cannot say that the motion and the response established as a matter of law that the husband was not entitled to any modification in the amount of maintenance. We therefore remand the case for a considered determination on the merits by the District Court, exercising its discretion in the light of all the facts and circumstances. Cf. Hunter v. Scruggs Drug Store, 4 Cir., 1940, 113 F.2d 971, 974; United States v. Nez Perce County, Idaho, 9 Cir., 1938, 95 F.2d 232, 235.

We do not reach the other questions argued and intimate no view concerning them.

So ordered.