Cannon v. Cannon

LUHRING, Associate Justice.

This is a petition for an absolute divorce on the ground of desertion. The parties were married at Richmond, Virginia, May 31, 1928 and lived there until January 1, 1933, when, it is alleged that the defendant “left, abandoned and deserted” the plaintiff and, “on or about the 1st day of September, 1931” came to Washington, D. C. The, plaintiff alleges that she moved to Washington, D. C. on the 6th day of February, 1933 “in the hope of being with her husband,” but that he refused to “reunite with and resume the marital vows” with the plaintiff. She charges in her petition that she did nothing to cause the defendant to “leave and desert” her, and that “said desertion was wilful and voluntary” on his part.'

The defendant answered, admitting that he left plaintiff “on or about the date assigned”. but alleges that “such action was caused by the inability of plaintiff- and# defendant to' live together . further as man and wife due to the irreconciliable conflicts that had arisen between them.”

The cause came on for hearing on the 14th day of February, T936 and neither of the parties appeared. They were represented by counsel. , .

' The plaintiff wife1 testified by deposition, and offered the testimony -'of one witness to the 'effect that she and the defendant had not lived together for two years prior to the 'month of October, 1935. The p.etii tion was filed October 9, 1935.• »

The serious question arises as to the propriety ■ of permitting a plaintiff iii a divorce action to testify ■‘by deposition. Here the deposition was taken on interrogatories, and no cross-interrogatories were propounded by the defendant.. He expressly waived. his right to file. suclj. cross-interrogatories, although his answer raised a pertinent issue of fact.

-Jurisdiction to hear and: deter-* mine divorce actions is conferred upon the equity side ’of this court, and 'it is. a -general rule in trials in equity ‘ that, the testir mony of witnesses shall be heard orally by the • court as in actions at- -law. Equity Rule 55, Supreme Court, D. C. To the same effect is Equity Rule 46r of. the Supreme Court of the United States. This general rule may ’ be departed from only when permitted by statute, or “for good and exceptional cause,” \vhich must be shown, by affidavit. Equity Rule 47, Supreme Court, U. S. No spch affidavit was filed.' The 'practice of ' referring matters in equity to an examiner of commissioner to take proof applies in suits for divorce of nullity of marriage “only in exceptional cases.” Equity Rule 43, Supreme Court, D. C. These are most salutary rules when applied to the testimony of. witnesses in divorce cases, a fortiori, when such witness is a party plaintiff.

“A proceeding for the dissolution of the marriage relation involves interests other than-those of the husband and wife, who are the parties complainant and defendant. The separation of husband and wife by judicial decree concerns vitally the chil-i dren, if apy, of the discordant couple, and affects in a general way the home life and domestic relations .of the people, .the public morals, the prevailing system of social' order, and, in a greater or .lesser degree,, the welfare of every citizen.” Decker v. Decker., 193 Ill. 285, 287, 288, 61 N.E. 1108, 55 L.R.A. 697, 86 Am.St.Rep. 325.

' The marriage' relation cannot be dissolved by mere act of the parties. ' ft is a'matter of public interest, and the state is an impliéd party to all suits’ for divorcé arid- ife' often called a third party. As was said by Mr. Justice Van Orsdell in Simmons v. Simmons, 57 App.D.C. 216, 217, 19 F.2d 690, 691, 54 A.L.R. 75: “The interest of the. state extends beyond the private'grievances of the parties directly inyplved. It sponsors the welfare of society and .the sanctity of the marriage relation.”

It is the ’dufy of the court in 'all divorce’ cases to stand as a representative of the .stqtq and. protect its interests. Yeager v. Yeager, 43 Ind.App. 313, 87 N.E. 144. But, how can this be done when the complaining party does not appear and orally testify.\.Undeiy such- circumstances,, the court is denied the right of cross-examination, and also the opportunity to-observe the manner and demeanor of the witness while testifying. “The power of cross-examination ha.s been justly said to-be one of the principal, as it certainly is. one of the most efficacious, tests, which the law has devised for the discovery of .truth.-” Greenleaf Evid. (16th Ed.) § 446. Experience has demonstrated that one of the surest ways to determine the credibility of any witness is to observe the manner and demeanor Of thát witness ■ on the stand-Without this opportunity to observe, the court is unable to determine the just weight and value of the testimony.

In order that the trial court may discharge fully and] completely its duty to the state, there must be the personal appearance of the plaintiff at the hearing. It has been the practice in this jurisdiction to require the .presence,of the plaintiff; and there is no reason here to dispense with -that practice, nor to depart from, the general rule requiring oral testimony., in equity causes.

Without intending to deviate from the practice prevailing here, the court has examined the deposition of the plaintiff and finds it unsatisfactory, not only as to her residence in the District of Columbia, but also as to the time and.place of £he alleged desertion. It does not warrant a decree dissolving the marriage.

In view'of the objection made by the court of its own motion to the deposition, a rehearing is granted so that the plaintiff may personally appear and orally testify if she is so advised.

Cause is referred to Assignment Commissioner for reassignment for hearing.