Morfessis v. Morfessis

184 F.2d 468, 87 U.S. App. D.C. 292, 1950 U.S. App. LEXIS 3113

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 28, 1950
• Docket: 10249
• Status: Published

Opinion

PER CURIAM:

Mrs. Morfessis appeals from the dismissal of her suit for limited divorce. Since the lower court found that she had failed to establish a prima facie case of cruelty, it dismissed her complaint 1 2without considering the merits of appellee’s defense of desertion.

The findings of the District Court, sitting without a jury, “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” 2 As the trier of the facts, it is in the best position to consider the demean- or of the witnesses and to weigh their testimony. 3 In view of the contradictory nature of appellant’s testimony as to material facts, we do not think the trial court’s finding that appellant had not made out a prima facie case was “clearly erroneous.”

Affirmed.

1 . Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A.

2 . Rule 52 (a), Federal Rules of Civil Procedure.

3 . Frazier v. Frazier, 1932, 61 App.D.C. 279, 280, 61 F.2d 920, 921; Blundon v. Blundon, 1926, 56 App.D.C. 313, 12 F. 2d 848; Allen v. Allen, 1923, 52 App. D.C. 228, 231, 285 F. 962, 965; Cole v. Cole, 1923, 52 App.D.C. 302, 303, 286 F. 764, 765.