202 F.2d 812 - Berman v. Berman — 202 F.2d 812

How this case has been cited

Cited by 5 later decisions — most recently November 1971

1 federal appellate · 4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Orin deMotte Walker, Washington, D. C., for appellant.

¶2David Rein, Washington, D. C., for appellee.

¶3Before EDGERTON, PRETTYMAN, and BAZELON, Circuit Judges.

¶4PER. CURIAM.

¶5On May 2, 1952, the District Court entered final judgment in a wife’s suit for separate support. Besides ordering appellant to pay his wife, the ’ appellee, $100 a week as maintenance, it ordered him to pay her attorney $500 for counsel fees.

¶6The order here on appeal was entered November 10, 1952. It adjudged appellant in contempt for failing to obey the order of May 2, and ordered him committed to jail for 30 days “or until such earlier time as he shall purge himself of his contempt by paying to the plaintiff or her attorney of record the sum of $2975 or until further order of the Court hereon.” $2975 was less than the amount then due for maintenance and counsel fees under the order of May 2, 'but more than the amount then due for maintenance alone.

¶7Appellant had flagrantly disregarded the entire order of May 2. But § 11-326 of the District of Columbia Code (1951), 31 *813Stat. 1208, provides that where a “decree only directs the payment of money no defendant shall be imprisoned except in those cases especially provided for.” To find the bearing of this statute upon this case we must collate three other sections of the Code. “During the pendency of a suit for divorce” § 16-410, 31 Stat. 1346, 32 Stat. 537, permits imprisonment for non-payment of “alimony”, i. e. “maintenance”, or of “counsel fees”. “When a divorce is granted”, § 16-411, 31 Stat. 1346, permits payment of “permanent alimony sufficient for … support” to be enforced “in the manner before mentioned”. This section says nothing about counsel fees. In a wife’s suit for separate support, § 16-415, 63 Stat. 213, permits payment of “maintenance” money, both “pendente lite and permanently,” to be enforced “in the same manner as directed in regard to the payment of permanent alimony.” But this section also says nothing about counsel fees. Since imprisonment for failure to pay a wife’s counsel fees incurred in a suit for separate support is not “especially provided for” by statute, the appealed order is erroneous insofar as it orders appellant committed for such failure. Cf. Bates v. Bates, 79 U.S.App.D.C. 14, 141 F.2d 723, which was decided under an earlier statute. In all other respects the order is affirmed.

¶8We need not now reconsider Boardman v. Carey, 62 App.D.C. 152, 65 F.2d 600, which held that a husband might be adjudged in contempt for failing to pay counsel fees which had been awarded, along with maintenance, in a final decree denying a divorce. The case is not in point here both because it involved a divorce suit and because it did not directly involve or discuss imprisonment.

¶9Affirmed in part, reversed in part, and remanded.