Altemus v. Altemus

Powers, J., delivered the opinion of the Court. This appeal involves the Uniform Reciprocal Enforcement of Support Act, which is set out in Code, Art. 89C, §§ 1 to 39. The definition of “state”, § 2 (b), includes any state, territory or possession of the United States and the District of Columbia in which this or a substantially similar reciprocal law has been enacted. The record shows that the Territory of Guam has a similar law, Title X, Part III, Guam Code of Civil Procedure.

Julia Dydasco Altemus, a resident of Guam, initiated a proceeding under the Act by a petition filed in the Island Court of Guam in November, 1967. In the supporting papers she alleged under oath that she was married on 5 June 1965, in Guam, to John Kent Altemus, whose address at the time of the petition was 67 Eldrid Drive, Silver Springs, Maryland. She said that they last lived together on 5 October 1965, and that a child, Jennifer Lee Altemus, was born of the marriage on 7 July 1966. She said that the parties were still married.

She said that her husband had made no contribution for support of herself or the child, and that she required $50.00 a month for support. The Island Court of Guam passed an order reciting the filing of the petition, and its substance, expressing the opinion that the respondent should be compelled to answer the petition and be dealt with according to law, and ²⁷⁵ directing that certified copies of the proceedings be sent to the State Department of Public Welfare, in Baltimore, Maryland. The papers were thereafter transmitted to the People’s Court for Juvenile Causes of Montgomery County, where a case was docketed, and a summons issued for John Kent Altemus. After a hearing held on 1 February 1968 that court ordered Altemus to pay $10.00 per week for the support of the child.

The court found that Altemus did not have the duty to support Julia, possibly because he told the court that he had obtained a divorce from a court in Juarez, Mexico, although no reason was stated in the order of the People’s Court. Altemus appealed, and the papers in the case were sent to the Circuit Court for Montgomery County, where they were entered on the law docket as a civil appeal. After two summonses issued for Julia as appellee were returned non est, the case remained dormant until March-1971 when Altemus moved for a jury trial and for a blood test. In August 1971, upon motion by Altemus, the case was transferred to the equity docket.

The circuit court ordered the requested blood test, and it appears from a report by a pathology laboratory in Washington, D. C. that blood samples of the mother and child were tested by the government of Guam in October, 1971, and the results supplied to and correlated by the local laboratory with its test of a blood sample from Altemus. The results were inconclusive. Two hearings were held in the circuit court, one on 3 February 1972 and one on 28 April 1972. As provided in the Act, Art. 89C, § 12, the State’s Attorney’s office in Montgomery County represented the interests of Julia and the child.

Altemus was represented by counsel retained by him. The transcript of the hearing held on 3 February 1972 does not indicate whether the equity court was conducting a de novo hearing on appeal from the People’s Court for Juvenile Causes, or whether it was exercising its original jurisdiction. The Assistant State’s Attorney submitted the petition and supporting papers received from Guam as establishing, at ²⁷⁶ least prima facie, the obligation of Altemus to make payments for support of Julia and the child. Altemus was called as a witness and testified concerning the divorce he obtained from Juarez, Mexico, a certified copy of which was received in evidence.

He stated that he had married Julia in Guam, and then offered as an exhibit a copy of official orders from the Air Force, dated 22 July 1965, directing that he depart the station in Guam on or about 1 October 1965 and re-assigning him to the United States for separation from military service. There was objection to receipt of this document in evidence on the ground that it was being offered for the purpose of showing non-access. The Assistant State’s Attorney contended that the Lord Mansfield Rule prevented the receipt of any evidence from either of the parties on the question of non-access until there had been proof of it from another source. The trial judge considered whether the law required that Altemus cross the threshold of establishing non-access through other witnesses before evidence on the question could be received from him, but reached no conclusion at that time on the question.

The document was received in evidence subject to a later ruling on its admissibility. The court and both counsel then concluded that additional time should be made available for both sides to obtain and be prepared to present additional evidence. The case was continued for further hearing. At the resumption of the hearing on 28 April 1972 Altemus called a longtime friend, Bruce Cramer, as a witness.

Cramer testified that he knew that Altemus was in the service and was overseas and that he next saw him in Montgomery County in civilian clothes in October 1965. Cramer was permitted to testify over objection to his recollection of the contents of a letter received from Altemus from Guam in which he related that he was on a 24 hour alert, on 10 minute ready notice, and related also “that he was becoming separated from his wife”. Altemus also called as a witness Robert P. Taylor, who testified that he had known Altemus for some 14 years, and was himself in the Air Force, and had been stationed in Guam from 30 November 1965 until April 1966. Taylor was ²⁷⁷ permitted to testify over objection that around the last of June or the first of July 1965, while he (Taylor) was in Texas, he received a letter from Altemus in which Altemus stated that he had made a mistake in getting married and had moved back to the base and had been put on alert at that time.

Taylor also testified he later became familiar with an area in Guam called Tamuning, which he said was about five miles from the Air Force Base, and that the travel time by vehicle between the two was probably a half an hour. Altemus himself testified further at the hearing of 28 April and was permitted over objection to relate that after having married Julia on 5 June 1965, he left her early in July and never saw her or talked to her again prior to his leaving Guam in October 1965. After receiving this evidence from Altemus and from the other witnesses, the source of whose information was Altemus himself, the trial judge indicated that counsel should argue the question of whether the threshold had been crossed. It appears from the record that the judge and counsel were referring either to the threshold inherent in the Lord Mansfield Rule or the threshold established for certain paternity cases under Code, Art. 16, § 66F (b).

That subsection provides in substance that when a married woman brings a paternity proceeding against a man who is not her husband, the presumption that the child is the legitimate child of her husband may be rebutted by the testimony of persons other than the mother and her husband that the mother was living separate and apart from her husband at the time the child was conceived. The record shows that on 13 April 1972 the Assistant State’s Attorney filed a series of interrogatories which appear to be propounded to Julia Altemus and to several other individuals living in Guam. The interrogatories appear to have been designed to elicit information regarding the marriage of Altemus and Julia and the length of time they lived together. The record contains no response to those interrogatories nor indeed does it show how, if ever, they were transmitted to the persons to whom they were propounded. ²⁷⁸ At the conclusion of the testimony taken at the hearing on 28 April 1972 the Assistant State’s Attorney asked that the court defer ruling on the case until he received answers to interrogatories, and further indicated the possibility that there may be written depositions.

The trial judge said that he would review the objections, presumably to determine if the testimony of Altemus was admissible, and if additional proceedings appeared necessary, he would advise counsel. No further proceedings were requested by the trial judge prior to his filing on 20 July 1972 of a written opinion and an order dismissing the petition. The opinion referred to the case as a hearing de novo of an appeal from the People’s Court for Juvenile Causes. It discussed the threshold to be crossed by evidence from persons other than the mother and her husband under Code, Art. 16, § 66F (b), but found it unnecessary to decide in this case if that threshold had been crossed.

The opinion then said: “From the proceedings it was obvious that the circumstances of time and distance, and the unavailability of witnesses presented serious obstacles to the introduction of persuasive evidence. The opportunity to produce witnesses having first-hand knowledge of the circumstances of residence on the Island and to effectively cross-examine witnesses attesting to this fact on behalf of the Plaintiff, presented real, substantial and almost insurmountable problems. It is the conclusion of this Court that this issue cannot be fairly met in these proceedings in furtherance of the interests of any of the parties.” The court then concluded that fundamental justice required an avoidance of a determination of the issue of paternity, and that as a result the relief sought could