Monroe T. Pratt, Appellant, v. Monette Pratt, Appellee, 240 F.2d 639 (D.C. Cir. 1957)

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US Court of Appeals for the District of Columbia Circuit - 240 F.2d 639 (D.C. Cir. 1957) Argued January 10, 1957
Decided January 31, 1957

Mr. John R. Walker, Washington, D. C., for appellant. Mr. Robert C. Handwerk, Washington, D. C., also entered an appearance for appellant.

Mr. John Alexander, Washington, D. C., with whom Mr. James K. Hughes, Washington, D. C., was on the brief, for appellee.

Before EDGERTON, Chief Judge, and FAHY and DANAHER, Circuit Judges.


This appeal is from a judgment dismissing a husband's complaint for divorce on the alleged ground of voluntary separation for five consecutive years. 49 Stat. 539, D.C.Code (1951) § 16-403.

The complaint was filed January 29, 1954. On November 2, 1953, the wife had obtained a limited divorce on the ground of the husband's desertion. His desertion, the court then found, began June 2, 1948 and "continued for more than two years without interruption or cohabitation and until the present time."

Until it had continued two years, i.e. until June 2, 1950, the desertion was not a cause for divorce. 49 Stat. 539, D.C. Code (1951) § 16-403. June 2, 1950 was less than five years before the present complaint was filed. Since "desertion" and "voluntary separation" cannot exist at the same time, the 1953 decree bars this action. We do not consider whether it would bar a similar action brought more than five years after June 2, 1950 but less than five years after November 2, 1953.

Appellant relies on Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556, and Buford v. Buford, 81 U.S.App.D.C. 169, 156 F.2d 567. Those cases are not in point here, since "The District Court may put a legal end to marriages which no longer exist in fact only in those cases where the separation has been continuously voluntary on the part of both husband and wife for the statutory period." Martin v. Martin, 82 U.S.App.D.C. 40, 42, 160 F.2d 20, 22.