Naomi E. Jackson v. Franklin B. Jackson

276 F.2d 501

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 5, 1960
• Docket: 15163_1
• Status: Published

Opinions

FAHY, Circuit Judge.

The appeal is from orders of the District Court of April 6, 1959, (1) correcting the provision of a judgment of February 2, 1954, by which appellee husband was required in certain circumstances to pay to appellant wife $20 a week for the permanent maintenance of their two minor children, whose custody was awarded to the wife; and (2) vacating an order of November 14, 1958, in favor of the wife against the husband for $3,960 alleged arrearages in the maintenance payments.

(1) The basis for the court’s corrective action was that, while not explicitly so stated in the judgment of February 2, 1954, the provision therein for maintenance of the children by the husband was to be “only and when the children are in this jurisdiction; or subject to any such appropriate supplemental order or orders as may be passed by the Court upon application by the plaintiff [appellant], for temporary removal of the children from the jurisdiction.” The judge had stated orally to the parties in open court before signing the judgment of February 2, 1954, that the husband “is in no position to support you [the wife] and the children both. * * * both of you are to blame * * i will order him to pay only and when the children are brought into the jurisdiction, twenty dollars a week for their maintenance. So you had better bring them back in and don’t take them out without permission of the Court.” He had further stated that payments would be suspended until the children were brought back into the jurisdiction, and he had delayed signing the judgment until this occurred.

Though as we have said the judgment as actually signed was not explicit in the respect intended it did provide that the husband should have the right to visit with the children “at reasonable times and places,” which we think contemplated that the children would remain in this jurisdiction. That the parties themselves so understood is indicated by their conduct; payments ceased when plaintiff moved with the children to Massachusetts in September 1954, about seven months after the judgment, without court permission. She made no demand upon her husband until October 1, 1958.¹

The court was within its authority in construing the judgment, consistently with its language, in accordance with the contemporaneous intent of the court .as well as the understanding of the parties. The underlying premise of the ■maintenance provision was that the place .of residence of the mother and children would be the District of Columbia. To :make this clearer the omission of explicitness in that regard could be supplied. Rule 60, Fed.R.Civ.P., 28 U.S. C.A., provides that “errors therein [in judgments] arising from oversight or omission may be corrected by the court at any time * * í:'.”²

It is said, however, that the mother’s failure to abide the court’s order in respect of residence and visitation rights of the father should be enforced only as may be done against her without affecting provision for the children. This may well be, although there is authority to the contrary. Phillips v. Phillips, 1956, 162 Neb. 649, 77 N.W.2d 152; Sanges v. Sanges, 1953, 44 Wash.2d 35, 265 P.2d 278; Eberhart v. Eberhart, 1922, 153 Minn. 66, 189 N.W. 592. Wrongdoing on the part of a mother in such a matter is of course not to be imputed to the children. Maschauer v. Downs, 53 App.D.C. 142, 289 F. 540, 32 A.L.R. 1461. But here the judgment in its correct form simply was not a judgment which required maintenance by the father in the situation which prevailed after the mother moved to Massachusetts, took a new government position there and made a home for the children with their grandmother. We are not now passing upon the question whether the father should have been required to provide maintenance in those circumstances, and, if so, to what extent. We are not justified in requiring recovery from the father of alleged arrearages which never accrued because the circumstances were not within the judgment as validly construed and corrected by the judge who signed it.³ We may add, also, that nothing in the record now before us shows that the needs of the children suffered by the cessation of the payments in the circumstances of their new home in Massachusetts, but we leave open for future proceedings protection of the interests of the children, as hereinafter explained.

(2) As to the order vacating the order of November 14, 1958, awarding the appellant $3,960, Rule 60(b) (5) authorizes the court to relieve a party of a judgment or order based upon a prior judgment which has been vacated, provided the motion for such relief is made within a reasonable time. And see 7 Moore, Federal Practice, Para. 60.26 [3] (2d Ed. 1955). Here the motion was made within a few months of the order of November 14, 1958. No intervening rights of appellant appear to have been prejudiced. The time accordingly was quite reasonable.⁴

In affirming, however, we do so without prejudice to reconsideration by the District Court, upon request, of the question of maintenance for the children by the father, who has a primary obligation in that regard, having in mind the welfare and needs of the children, in the past as well as the present and the future, and regardless of where they are or have been, and having in mind also the situation of the parents and any other relevant factor. In other words, though the court was within its authority in correcting its judgment to conform with the decision it had originally made, the court in appropriate proceedings has the obligation to protect the interests of the children, and of their parents in relation thereto, as these interests may be made to appear.

Affirmed.

1 . Except for a short period in August 3958, the children remained outside the District of Columbia.

2 . Here there is no issue as to the effect of lack of notice to the parties in correction proceedings. See Kennedy v. Reid, 101 U.S.App.D.C. 400, 249 F.2d .492; Hayes v. United States, 102 U.S. App.D.C. 1, 249 F.2d 516, certiorari denied 356 U.S. 914, 78 S.Ct. 672, 2 D.Ed. 2d 586.

3 . The financial situation of the parties is not shown by the evidence, nor the needs of the children either now or during the period of the alleged arrearages.

4 . Should the correction order of April 6, 1959, properly be construed not to constitute a vacation of the judgment of February 2, 1954, because in substance it is only a correction thereof, the principle of Rule 60(b) (5) would still apply and be available under the “any other reason” provision of Rule 60(b) (6), which provides that on motion filed within a reasonable time, and upon such