Smith v. Smith

137 A.2d 221 (1957)

Robert J. SMITH, Appellant, v. Dorothy Marie SMITH, Appellee.

No. 2047.

Municipal Court of Appeals for the District of Columbia.

Argued September 16, 1957.

Decided December 30, 1957.

Eugene J. Schubert, Washington, D. C., for appellant.

Rex K. Nelson, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The wife sued her husband for maintenance (Code 1951, § 16-415). He defended on the ground that she had been guilty of *222 adultery and accordingly had forfeited her right to support. During the trial both parties introduced evidence in an attempt to prove adultery on the part of the other. At the conclusion of all the evidence the court made the following findings:

"The defendant admits that since May 18, 1956, he has not supported the plaintiff. The Court finds that under all the facts and circumstances of the case the defendant has failed and neglected to maintain and support the plaintiff, although able to do so. * * * * * * "* * * [T]he court finds that there is not sufficient evidence or proof in this case to establish the fact that adultery was committed by either the plaintiff [appellee] or the defendant [appellant]."

An order was entered granting permanent maintenance for the wife and a counsel fee for her attorney; the husband appeals. A careful examination of the transcript of testimony convinces us that the decision was sufficiently supported by the evidence.

Counsel for appellee has filed in this court a motion for allowance of a counsel fee on appeal. This motion is denied without prejudice to the filing of such a motion in the trial court after our mandate has issued. Hobbs v. Hobbs, 91 U.S.App.D.C. 68, 197 F.2d 412.

Affirmed.