McIntyre v. McIntyre

176 A.2d 238, 1961 D.C. App. LEXIS 299

• Court: District of Columbia Court of Appeals
• Decided: December 21, 1961
• Docket: 2867
• Status: Published

Opinions

CAYTON, Acting Judge.

This was an action brought by a wife for an absolute divorce on the ground of desertion. After a trial on the merits the judge ordered a dismissal with prejudice on the ground that plaintiff “has not offered satisfactory proof of mailing of publication to the last known place of residence of the defendant.” Plaintiff wife has appealed.

The evidence for plaintiff may fairly be summarized as follows. Her husband left her without cause and over her protest in 1939, saying he “just wanted a place to himself” and she has not seen or heard from him since, except for one brief occasion in 1941. She learned from friends that he had gone to live with his only relative, a sister, at a given address in Chicago. Soon after-wards she wrote to him in care of his sister at that address; that letter was not returned, and was presumably received by him. Several later letters were returned “unclaimed.” She also tried to reach him and his sister by telephone and was told that neither of them was listed. A friend of plaintiff testified she went to the Chicago address about ten years before the trial and no one answered the door. Plaintiff’s attorney testified that' in 1959 he was in Chicago and called the telephone company in an attempt to locate defendant and his sister and was advised that there was no listing for either of them. Also he found neither of them listed in the Chicago city directory. He also testified that he was in Chicago three times the following year, “and each time I followed through.” Also he sent letters to defendant in care of his sister and they were returned “unclaimed.”

We are at a loss to understand why the foregoing evidence was rejected as unsatisfactory. The trial judge commented that plaintiff and her attorney both knew that defendant did not live at the Chicago address and that such was not his last known place of residence. The first of these statements may be correct, in view of the numerous and fruitless efforts to reach the husband at the named address. But it by no means follows that plaintiff or her attorney knew of a later or better address. The evidence established otherwise. The Chicago address was, to plaintiff’s knowledge, the last place defendant lived and the last place at which she had been able to reach him. It would be sheer speculation, and unfair as well, to conclude that plaintiff and her attorney knew where defendant was, or had later or better information which they were concealing from the court.

The trial judge based his ruling on Trask v. Karrick, 56 App.D.C. 130, 10 F.2d 995. There it was held that a house long abandoned by defendant and which had come into actual ownership and possession of plaintiff through lien foreclosure cannot be considered the “last and usual place of abode” of defendant, under a Massachusetts statute. That decision does not govern here. Aside from the fact that the statute there was different from ours,' that plaintiff’s position was patently untenable because it rested on an obvious fiction. In the case before us the evidence was not inherently incredible, and the efforts to locate the long-deserting spouse were persistent and diligent.

We agree with appellant that there is another reason for holding the decision below erroneous. The Code section which the trial court cited (Code 1951, § 13-111) provides that plaintiff shall file an affidavit showing mailing of copy of advertisement (of publication) to defendant at his last known place of residence, “or that he has been unable to ascertain the last place of residence of said party after diligent effort to ascertain the same.” Even if it could be said that plaintiff did not succeed in accurately establishing defendant’s most recent place of residence, the evidence clearly established that she had diligently tried to ascertain it. Thus she had complied with the statute.

Reversed, with instructions to grant plaintiff the relief prayed for in her complaint.