Benjamin H. Saunders, Executor, Estate of Sophus Dee Hanson, Deceased, et al., Appellants, v. Anne Baker Bein Hanson, Appellee, 327 F.2d 889 (D.C. Cir. 1964)

This appeal involves the right of appellee to receive a statutory share of the estate of her former husband, who died within six months after the entry of a decree of divorce but before that decree became final under D.C.Code, § 16421 (1951). The statute says "no such final decree [for absolute divorce] shall become absolute and take effect until the expiration of six months after its date." This court in Oliver v. Oliver, 87 U.S.App. D.C. 334, 336, 185 F.2d 429, 431 (1950), pointed out:

"This contemplates a provisional decree of divorce only, which cannot mature and become effective until lapse of the intervening time."

We held in Wesley v. Brown¹  that death of one of the parties during the six-month period following a divorce decree abated the action. Again, in Dillard v. Dillard,²  discussing the underlying policy of our law, we said the District of Columbia statute

"adopts and clearly expresses the broad policy of postponing for six months, and for all purposes, the effective date of any decree of absolute divorce granted in the District of Columbia." (Emphasis added.)

It is our view that the District Court, Tamm, J., clearly discerned and applied the law as interpreted by repeated decisions of this court.

Other contentions advanced on brief and in argument have been sufficiently treated in the opinion³  of the District Judge. The judgment is

Affirmed.

BURGER, Circuit Judge (concurring specially).

I agree that our holding in Wesley v. Brown, 90 U.S.App.D.C. 351, 196 F.2d 859 (1952), was binding on the district court and requires an affirmance with respect to the construction of D.C.Code Ann. § 16-421 (1961).¹  However, the holding in Wesley v. Brown seems ill-considered since its construction of the statute went far beyond the congressional purpose and here would allow a spouse, who should certainly be considered divorced for these purposes, to take as the lawful surviving spouse as though no divorce had occurred, simply because the six month waiting period had a few more days to run. That paradoxical result was neither sound nor necessary under a statute meant only to deter hasty divorces and hasty remarriage.

Sophus D. Hanson died domiciled in Washington, D. C., on January 10, 1960, leaving $5 to his divorced wife, Anne Baker Bein Hanson, the appellee, and the entire residue to a daughter of his prior marriage. Six months lacking 12 days before his death, Hanson had been granted a decree of absolute divorce from appellee but pursuant to Section 16-421 that decree provided that it could not become effective until six months from the date of its entry. Appellee had sought the divorce but it was denied her and granted to Hanson on grounds of desertion. The court denied appellee any alimony or a share of Hanson's estate.

Arbitrary results are often a necessary concomitant of statutes which provide for the determination of legal rights with respect to a fixed period of time, but invariably the seemingly arbitrary result serves the statutory end. See, e. g., United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960). Here the purpose of the statute is fully effectuated when it prevents remarriage within six months after the decree; it should have no other consequence. Some jurisdictions accomplish this same objective by a statute which simply and directly prohibits remarriage within a certain period, without more. See, e. g., Va.Code Ann. § 20-118 (1960); W.Va.Code Ann. § 4722 (1961). I would treat Section 16-421 as if it so provided and confine its operation to its intended purpose by precluding either spouse from sharing in the estate of the other who dies after the final decree has actually been entered but during the six month period.²  To grant to the spouse in these circumstances the same rights as an undivorced spouse, to me tends not to enhance or strengthen but rather to debase the marital relationship.

In reaching its holding in Wesley v. Brown, supra, I suggest with all deference, that this court did not give full and adequate consideration to the basic problem involved. The very brief opinion tells us little except that Oliver v. Oliver, 87 U.S.App.D.C. 334, 185 F.2d 429 (1950), "is * * * dispositive." The Oliver case held void a foreign remarriage contracted within six months after the entry of the local decree. In reaching that result in the Oliver case this court considered the legislative history of Section 16-421 and noted that "other statements by members of the [House] Committee clearly indicate that the provision was intended as a barrier to hasty and fraudulent divorces." 87 U.S.App. D.C. at 337, 185 F.2d at 432.³ 

Our examination of a statute should be a search for meaning. Clearly, the meaning and purpose of Congress was, as its records show, to prevent "easy divorce and hasty remarriage of divorced persons." 87 U.S.App.D.C. at 338, 185 F.2d at 433. (Emphasis added.) That purpose is not served in the slightest by permitting a "divorced" spouse the same inheritance rights as a surviving spouse simply because the six month period, which was intended only to prohibit remarriage, has twelve days to run. As I see it, the congressional purpose and the underlying public policy is fully satisfied without the illogical and incongruous result we now feel compelled to reach here. Except for the restraint on remarriage during the six month waiting period, the parties should be regarded for all other purposes as divorced persons.⁴  The limited purpose of the statute was recognized in Steele v. Steele, 65 F. Supp. 329, 332 (D.D.C. 1946), in which the divorce decree was viewed as severing the marital bond immediately upon its entry so as to allow the divorced wife to sue the divorced husband in tort for acts which occurred within the six month period before the decree was final. Had the court considered the parties married after the entry of the divorce decree, the one spouse could not have sued the other in tort. In Tillinghast v. Tillinghast, 58 App.D.C. 107, 110, 25 F.2d 531, 534 (1928), this court, construing Section 983a of the D.C.Code in effect in 1928, with essentially the same language as is found in Section 16-421, held that facts — the death of one party — arising after a decree (in that case for annulment) but before the expiration of the interlocutory period for taking an appeal operated to make the decree final in order to avoid illegitimacy of offspring of the remarriage of one party.⁵ 

It is not without significance that we have long treated the date of the entry of a divorce decree as fixing the time for appeal as from a final order. See, e. g., Roberts v. Roberts, 95 U.S.App.D.C. 382, 222 F.2d 408 (1955) (decree entered April 26, 1954; notice of appeal filed May 11, 1954); Lort v. Lort, 91 U.S.App.D.C. 118, 198 F.2d 598, 34 A.L.R.2d 951 (1952) (decree entered May 9, 1951; notice of appeal filed June 8, 1951). See also H.R. Rep. No. 1532, 74th Cong., 1st Sess. 4 (1934).

In the Oliver, Tillinghast and Steele cases dealing with this statutory language prior to the Wesley holding, the courts have carefully confined the impact of the statute to its objective of deterring hasty divorce and hasty remarriage. Only in the Wesley case was the statute given effect beyond its intended purpose. My view that the Wesley holding was not as carefully considered as the earlier cases and perhaps not as carefully as the subject merited is buttressed by the fact that neither the Steele nor the Tillinghast cases, supra, were cited. Indeed, an examination of our records discloses that the briefs in the Wesley case failed to bring these cases to this court's notice. Nor was any reference made to the fact that we had long considered divorce decrees final for appeal purposes when entered, rather than six months later.

We ought not strain, as I think was done in the Wesley case, to construe a statute to produce an anomalous and unreasonable result. The Tillinghast opinion, in drawing away from the literal language of the D.C.Code provision reminded that "it is well-settled law that, where a strict construction of a statute leads to injustice, absurdity, and incongruity, the court will look to the purpose and the spirit of the statute in declaring its effect." 58 App.D.C. at 109, 25 F.2d at 533.

I suggest we should re-examine our Wesley⁶  holding in light of this principle of statutory construction.