Dunnington v. Dunnington

45 App. D.C. 277, 1916 U.S. App. LEXIS 2682

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 22, 1916
• Docket: No. 2913
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Plaintiff assigns for error, first, that the court erred in retaining the answer and cross petition of the defendant; second, the court erred in considering the answer and cross petition of the defendant as an affidavit; third, the court erred in considering the answer and cross petition of the defendant in support of her application for alimony pendente lite; fourth, the court erred in refusing to hear evidence offered by the plaintiff on the hearing of the defendant’s motion for alimony; fifth, the court erred in refusing to permit the plaintiff to offer affidavits in evidence, upon the hearing of the defendant’s motion for alimony pendente lite, after the court had announced that it would regard the answer and cross petition of the defendant as an affidavit; sixth, the court erred in refusing to consider the affidavits offered by the plaintiff at the hearing of the defendant’s application for alimony pendente lite as shown by the bill of exceptions; seventh, the court erred in refusing to consider each several affidavit offered by the plaintiff upon the hearing of the motion of the defendant for alimony; eighth, the court erred in granting the application of the defendant for alimony pendente lite, and erred in allowing and awarding alimony pendente lile to the defendant.

We do not think the assignment of errors well taken. It appears from the stipulation that the defendant objected to the hearing of the motion for alimony if the plaintiff should submit affidavits at the time, and asked for a continuance to the next motion day in order that defendant might have an opportunity to examine those affidavits and reply to them.

Plaintiff, in order to obtain an immediate hearing, agreed not to present the affidavits, and to submit the case upon bill and answer.

The order of the court did not strike out the entire answer of the defendant, but only such parts of it as were in the nature of allegations in support of her cross bill for divorce.

1 This left the remainder of the answer standing, and the court considered it as under oath in support of the motion for alimony.

The award of alimony is a matter within the discretion of the court, and in this case the allegations of the defendant were sufficient to support the motion.

The court did not err in refusing to permit the plaintiff to offer his affidavits in evidence after the decree had been entered. The plaintiff had expressly waived the hearing of those affidavits, and the case was tried upon the bill and answer.

Never having been submitted to the court or offered in evidence, they did not constitute a part of the evidence on the hearing.

It was too late to offer the affidavits after the decree was rendered by the court upon the stipulation aforesaid.

We find no error in the proceedings, and the decree is affirmed with costs. Affirmed.

A motion for a rehearing was overruled July 19, 1916.