Morfessis v. Morfessis , 184 F.2d 468 ( 1950 )

184 F.2d 468

87 U.S.App.D.C. 292

MORFESSIS,
v.
MORFESSIS.

No. 10249.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1950.
Decided Aug. 28, 1950.

Mr. Eugene X. Murphy, Washington, D.C., with whom Mr. Rex K. Nelson, Washington, D.C., was on the brief, for appellant.

Messrs. Ben Lindas and Joseph H. Schneider, Washington, D.C., entered appearances for appellee.

Before CLARK, BAZELON and WASHINGTON, Circuit Judges.

PER CURIAM:

1

Mrs. Morfessis appeals from the dismissal of her suit for limited divorce. Since the lower court found that she had failed to establish a prima facie case of cruelty, it dismissed her complaint1 without considering the merits of appellee's defense of desertion.

2

The findings of the District Court, sitting without a jury, 'shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'2 As the trier of the facts, it is in the best position to consider the demeanor of the witnesses and to weigh their testimony.3 In view of the contradictory nature of appellant's testimony as to material facts, we do not think the trial court's finding that appellant had not made out a prima facie case was 'clearly erroneous.'

3

Affirmed.

1

Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A

2

Rule 52(a), Federal Rules of Civil Procedure

3

Frazier v. Frazier, 1932, 61 App.D.C. 279, 280, 61 F.2d 920, 921; Blundon v. Blundon, 1926, 56 App.D.C. 313, 12 F.2d 848; Allen v. Allen, 1923, 52 App.D.C. 228, 231, 285 F. 962, 965; Cole v. Cole, 1923, 52 App.D.C. 302, 303, 286 F. 764, 765