Gomez v. Gomez

341 A.2d 423, 1975 D.C. App. LEXIS 408
CourtDistrict of Columbia Court of Appeals
DecidedJune 23, 1975
Docket8012
StatusPublished
Cited by3 cases

This text of 341 A.2d 423 (Gomez v. Gomez) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gomez v. Gomez, 341 A.2d 423, 1975 D.C. App. LEXIS 408 (D.C. 1975).

Opinions

HARRIS, Associate Judge:

Appellant contends that the trial court abused its discretion in its disposition of her request to achieve service by publication in a divorce proceeding by publishing in only one newspaper. Concluding that the record is inadequate, we remand the case to the trial court without prejudice to appellant’s seeking further relief there.1

Appellant seeks to divorce her husband, whose whereabouts apparently are unknown. Although she is employed, she was authorized by the trial court to proceed without prepayment of fees or costs. A motion was filed on her behalf which stated in part:

4. That Plaintiff has been unable to serve the Defendant personally, despite diligent efforts, thus making it necessary to serve by publication.
5. That Plaintiff is financially unable to pay for publication in two newspapers.
6. That Plaintiff would be able to raise the amount necessary to publish in the Washington AFRO-American which is the least expensive newspaper for publication.
7. That the Plaintiff will be unable to continue with the . . . action if this motion is denied.
8. That this would in no way prejudice the rights of the Defendant in this action.
WHEREFORE, plaintiff asks that her motion be granted and that she be permitted to publish in only the Washington AFRO-American.

A divorce proceeding is among the types of actions in which publication is an acceptable method of obtaining service “upon a defendant who can not be found and who is shown by affidavit to be a nonresident, or to have been absent from the District for at least six months . . . .” D.C. [425]*425Code 1973, § 13-336(a); see also § 13-336(b).2 Section 13-340(a) of the Code states:

An order of publication shall be published at least once a week for three successive weeks, or oftener, or for such further time as the court orders.

The Superior Court duly adopted a rule dealing with publication. Its Domestic Relations Rule 4(j) provides:

Service by Publication. Notices relating to proceedings in this Division of which publication is required shall be published in the Washington Law Reporter for the prescribed time in addition to any other newspaper or periodical specifically designated by the Court. If it is shown to the satisfaction of the Court that an undue hardship would be incurred by the requirements of this section it may order notices to be published in any other manner deemed appropriate within D.C.Code . . . § 13-340. Publication shall be proved by affidavit of an officer or agent of the publisher stating the dates of publication with an attached copy of the order as published.3

Thus, the basic requirement of publication was prescribed by Congress, and the related Superior Court rule provides flexibility for parties of limited means. However, when appellant sought approval for publication solely in the AFRO-American, no facts as to publication costs were presented to the trial court. The motion contained merely naked assertions (1) that the appellant could not afford to publish in two newspapers, and (2) that the AFRO-American was the least expensive newspaper. The trial court’s Judge in Chambers [proceeding ex parte as authorized by Super. Ct.Dom.Rel.R. 12 — 1 (b) J concluded that appellant was entitled to some relief, and authorized publication iq only one newspaper, thereby avoiding publication in the Washington Law Reporter. However, the order as signed directed publication in the Washington Star-News, rather than in the AFRO-American.

Appellant contends that the trial court abused its discretion, to the extent of committing reversible error, by selecting a newspaper other than the one preferred by her counsel. In support of that argument, appellant recites comparative cost figures to us, alleging in part that the charge for publishing in the Star-News was greater than the combined cost of publishing in both the Washington Law Reporter and the AFRO-American would have been.4

That may or may not be true. However, no cost figures were presented to the trial court, either before or after the order in question was signed. Thus, the trial court exercised its discretion without having the information now argued to us. Nonetheless, we are asked to hold that the trial court abused its discretion.

The record could not support any such holding. The integrity of appellant’s counsel is not questioned, but “it is axiomatic that an appellate court may not consider material not part of the record from the court below.” Hohensee v. Vanech, D.C.Mun.App., 161 A.2d 703, 704 (1960). See also Smith v. Brooks, D.C.App., 337 [426]*426A.2d 493 at 494, n. 3. This principle was expressed forcefully in Pinkston v. Carter, D.C.Mun.App., 150 A.2d 629, 632 (1959):

It also needs to be said, as has been done time and again, that appellate review must be limited to matters in the official transcript of record and cannot be based on statements of counsel which speak against the record either by way of contradiction or by unauthorized additions thereto.5

We recognize, as noted by our dissenting colleague, that another division of this court was willing to overlook comparable deficiencies in the record in Johnson v. Johnson, D.C.App., 329 A.2d 451 (1974). In that case, a wife who was on welfare sought approval for publication only in the AFRO — American in a divorce proceeding. No comparative cost figures were presented to the trial court, and the plaintiff’s request for relief was denied outright. On appeal, as is true here, only one side was represented; only one viewpoint was presented to the court. In an opinion written by our present dissenter, the trial court’s ruling was reversed. However, the fact that an inadequate record was passed over sub silentio in that case does not require us to act in disregard of an inadequate record in any other case.6 Cf. Brown Shoe Co. v. United States, 370 U.S. 294, 307, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).

We are not faced here with the question of denial of access to the courts which prompted the Supreme Court’s opinion in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).7 Appellant has been permitted to proceed in forma pauperis. She may be dissatisfied with the statutory requirement of publication, or with the Superior Court’s Domestic Relations Rule 4(j). See Harris v. Harris, 137 U.S.App.D.C. 318, 325, 424 F. 2d 806, 813, cert. denied, 400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55 (1970).

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Bluebook (online)
341 A.2d 423, 1975 D.C. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-gomez-dc-1975.