Brandt v. Brandt (276 F.2d 488, 1960)

FAI-IY, Circuit Judge.

On December 14, 1943, the District Court granted Ruth S. Brandt, appellee, a judgment of absolute divorce from William F. Brandt, appellant, and awarded her custody of their minor child with the privilege reserved to appellant father to visit the child at all reasonable and proper times. These provisions of the judgment are not involved in this appeal. The judgment also, however, ordered appellant to pay to appellee the sum of $10.-00 per week, until the further order of the court, for support of plaintiff and said minor child.

Some fourteen years later, on January 30, 1958, appellee filed a motion in the District Court for an order adjudicating appellant in contempt of court for failure to pay alimony and maintenance for the minor child, or in the alternative for judgment in the amount claimed as arrearages, alleged to be $6,870.00. The motion stated that appellee “for the past nine years has been overseas as a civilian employee of the U. S. Government, and has only recently returned to the States.” Prior thereto, the motion alleged, she had been unable to locate appellant, who had “managed to conceal himself and was unable to be served or notified with or about Court Processes.”

Appellant through his attorneys filed a memorandum in opposition to the motion, claiming that the judgment of December 14, 1943, was void as to “the award of alimony” in that service of summons on him had been attempted under Rule 4, Fed.R.Civ.P., 28 U.S.C.A., by leaving a copy thereof at a specified address in Washington, D. C., on September 8, 1943, whereas he did not then reside there, having previously moved to Cedar Point, Maryland, whence he had moved to the State of Washington, as known to appellee. The opposition also stated that the minor child of the parties had never resided in the District of Columbia, was born in New York and had been kept there by appellee until she took the child to Germany, during which time appellant had no knowledge of the child’s whereabouts. The opposition further stated that appellee, “although obtaining the decree December 14, 1943, has made no prior attempt or request for payment” from appellant, “or made any prior attempt to enforce that order,” has not complied with it in respect of appellant’s right of visitation and “assumed full control and responsibility for the child and did not notify the father of the child’s whereabouts.”

On March 2, 1959, the District Court entered the order on appeal, giving judgment for appellee against appellant in the amount of $6,870.00, representing the sum of all payments required by the judgment of December 14, 1943, none of which had been made.

We are unable to affirm this judgment on the present record for two reasons: (1) there is an absence of evidence and findings resolving the issue as to such service on appellant as would support the money award of December 14, 1943, upon which the present judgment rests; (2) there is an absence of evidence and findings resolving the issue of laches on the part of appellee in seeking enforcement of the judgment of December 14, 1943. We shall accordingly remand the case for further proceedings.

1. Should the District Court on the remand conclude on the basis of evidence, with appropriate findings, that the service upon appellant does not support the award of alimony and maintenance made in the judgment of December 14, 1943, then the order of March 2, 1959, based on the judgment of December 14, 1943, should be vacated.

2. If, however, service adequate to support the money award in the judgment of December 14,1943, was had upon appellant then the District Court should resolve the issue of laches on the part of the wife in seeking compliance with or enforcement of the money award made .by that judgment. If the District Court finds that the wife is barred by laches from enforcing the money award made by the judgment of December 14, 1943, it should vacate its order of March 2, 1959; otherwise it should reaffirm its order of March 2,1959, and the husband, if he be so advised, may appeal from the order of reaffirmance.

This contingent requirement