Scott v. Scott , 147 A.2d 449 ( 1959 )

147 A.2d 449 (1959)

Leonard A. SCOTT, Appellant,
v.
Mary L. SCOTT, Appellee.

No. 2258.

Municipal Court of Appeals for the District of Columbia.

Submitted September 29, 1958. Decided January 9, 1959.

Wesley S. Williams, Washington, D. C., for appellant.

John Alexander, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The husband filed a complaint for an absolute divorce on the ground of five years' voluntary separation. Code, § 16-403. The wife defended, claiming that the separation was not voluntary on her part and filed a counter-claim for an absolute divorce on the ground of adultery. The court, after a hearing, dismissed both the original complaint and the counter-claim. Only the husband appeals.

After hearing a number of witnesses, including the husband and wife, the court found:

"That the plaintiff [husband] and the defendant [wife] separated voluntarily on November 15, 1952 [more than five years prior to the filing of the complaint], but have not lived continuously and voluntarily separate and apart without cohabitation from that date until the present time,

and

"That the plaintiff * * * has failed to sustain his burden of proof that the separation has been voluntary on the part of the defendant after the original separation."

There was a conflict in the evidence on the question of the continuing voluntary character of the separation on the part of the wife; the trial judge had the opportunity of observing the demeanor of the witnesses and forming an opinion as to their credibility. The record demonstrates that he carefully considered the evidence and we are not in a position to say that his decision was erroneous.

Affirmed.