Apenyo v. Apenyo

MOYLAN, J. As Judge Lowe philosophized for this Court in Schwartz v. Schwartz, 26 Md.App. 427, 428 , 338 A.2d 386 (1975), “Conflicts among courts of the States cannot be avoided when litigants are jurisdictional nomads.” A perennial problem with jurisdictional nomads is that they inevitably produce jurisdictional collisions. It is to avoid such collisions that we invoke what is at best loosely referred to as “comity.” In Hilton v. Guyot, 159 U.S. 113, 163-64 , 16 S.Ct. 139 , 40 L.Ed. 95 (1895), the Supreme Court discussed its essential meaning: Although the phrase has been often criticized, no satisfactory substitute has been suggested. “Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due ⁴⁰⁴ regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws. Black’s Law Dictionary (6th ed. 1990) 267 defines “comity” as: the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect.

Far from being a precise legal precept, comity is essentially a flexible philosophical approach or psychological attitude that must adapt itself to the varying configurations of at least a dozen significantly different types of jurisdictional collision. This case is one of them. The appellant, Mabel Apenyo (“Wife”), appeals from the ruling of Judge Angela M. Eaves in the Circuit Court for Harford County, dismissing her complaint for divorce. The single contention raised is that Judge Eaves abused her discretion by granting the motion of the appellee, Kofi Apenyo (“Husband”), to dismiss his Wife’s complaint.

An Immigrant Family’s History The Husband and the Wife are both natives of Ghana. They, were married in Ghana on April 30, 1995. Two children were born to the marriage: Tsikata, born on October 5, 1995, in Ghana; and Dede, born on October 2, 1999, also in Ghana. The Husband and Wife, with the children, moved to Harford County, Maryland in 2002.

The daughter, Dede, however, now 12 years of age, was, after only a year in the United States, sent back to Ghana to live with relatives in 2003. Both the Husband and the Wife became naturalized United States citizens. By 2009, the marriage had deteriorated, and on July 1, 2009, the Husband returned to Ghana, taking with him his son, Tsikata, now 16 years of age. Counterpunching Divorce and Custody Petitions The return of the Husband to Ghana while his Wife remained in the United States ultimately produced two separate ⁴⁰⁵ divorce actions, each with an accompanying petition for child custody, five thousand miles and 28 days apart.

On August 31, 2009, the Husband filed in a circuit court in Ghana his petition for a divorce and for the custody of both children. While the Wife was in Ghana shortly thereafter because of the death of her father, she was served with a copy of the Husband’s divorce petition. On September 3, 2009, counsel for the Wife filed a Notice of Appearance in the Ghana court, and, on September 6, 2009, filed on the Wife’s behalf her motion to have the divorce petition dismissed on the ground that the Ghana court had no jurisdiction over the matter. In a seven-page ruling filed on April 15, 2010, the Ghana court found as a matter of fact that the Husband intended to make Ghana his permanent home and that it was, therefore, his official domicile. “In the present case, even though the Petitioner/Respondent and the wife had lived for sometime outside their domicile of origin, the Petitioner by a series of overt acts, has exercised his right of choice of domicile, by relocating to Ghana, with his two children with the intention of making Ghana, and for that matter Kpando which was once his domicile of origin as his domicile by choice.

The conduct [of] leaving his job, hinging down to Ghana his only two children, putting them in school, and also abandoning his living apartment in the U.S. after shipping out of that country his personal belongings, [we] can reasonably conclude that the Petitioner/respondent herein intends to make Ghana his birth place, a, permanent home. In that event, his present action before this Court is in conformity with the requirements of the provisions of Act 367 of 1971.” (Emphasis supplied). The Wife’s Motion to Dismiss the divorce action was, accordingly, denied. Thus, divorce and custody petition # 1.

The Wife, upon her return to Harford County, on September 28, 2009, filed in the Circuit Court for that County her petition seeking a divorce from the Husband and also asking for the custody of both children. The Husband was served in ⁴⁰⁶ Ghana on October 28, 2009 with a copy of that petition. Thus, divorce and custody petition # 2. Dismissing the Later Claim On March 26, 2010, the Husband filed in Harford County his Motion to Dismiss the Wife’s divorce complaint on the ground that his earlier filed divorce complaint was then pending in the courts of Ghana and took precedence over the later filed petition.

On July 26, 2010, Judge Eaves, upon the Wife’s request, conducted a hearing on the motion. The Wife’s petition for divorce was dismissed, and this appeal challenges that dismissal. An Editorial Prologue At the outset of this discussion, let us make one thing absolutely clear. This Court is not the attorney for the Wife.

We have no intention, therefore, of engaging in a wide-ranging examination of two partially overlapping but very complicated jurisdictional inquiries—one involving divorce cases and the other involving child custody cases. We are not going to raise on behalf of the Wife every conceivable issue that might plausibly have been raised and then to answer those hypothetical challenges one by one. We will respond to the precise arguments expressly made in the Wife’s brief or at the hearing conducted on July 26, 2010 and go no further. The Appellant’s Brief Six pages of the Wife’s nine-page appelláte brief are directed to her single undifferentiated contention: The Chancellor abused her discretion in granting Defendant’s Motion to Dismiss.

Of these six pages, fully two of them are devoted to an issue that has nothing to do with this case. The Wife treats the Husband’s Motion to Dismiss as if it were a Motion to Dismiss pursuant to Maryland Rule of Procedure 2-322(b)(2), based upon the failure to state a claim. What was before Judge Eaves, by contrast, was not a Motion to Dismiss for the failure to state a claim. It was a Motion to Dismiss for the totally ⁴⁰⁷ different reason that a similar claim had already been filed and was then pending in another jurisdiction.

That part of the Wife’s brief actually pertinent to the issue before us is thereby reduced to four pages. An Immaterial Sensitivity The consistent theme running through the rest of the Wife’s brief is her obsessive sensitivity to her Husband’s service of process upon her during her short trip to Ghana. It was he who first informed her that her father was dying. That information, however, was sadly true, whatever the Husband’s purpose may have been in communicating it.

The father was, indeed, dying. A copy of the Husband’s divorce complaint against her was served on the Wife as she left the mortuary following her father’s death. The Wife now asserts that the “egregious circumstances” of his obtaining service could, ipso facto, invalidate an otherwise valid Ghana judgment: “Even if there were a Ghana judgment, it would seem that it is subject to collateral attack in Maryland under the egregious circumstances in whieh appellee invoked the Ghana Court.” A page deeper into the argument, the Wife returns to this theme: “Maryland law generally frowns upon underhanded means of obtaining service.” She finally disparages the Ghana court system itself as one not entitled to comity because it countenanced the “admitted conduct” of the Husband in somehow getting his case before the Ghana court: “Indeed, the very fact that the Ghana court would allow the Appellee to proceed in the face of the admitted conduct that brought him to that Court implies that it is not in conformity with Md.Code Ann. ‘FL’ § 9.5-208.” There is no legal merit in the contention. The behavior of the Husband in serving process on his Wife as she stood by her father’s bier might be considered, by English cricket standards, to be insensitive, ungallant, and unsporting, but it is not, by American legal standards, fraudulent.

Fisher v. McCrary Crescent City, L.L.C., 186 Md.App. 86, 104-08 , 972 A.2d 954 (2009). The Wife, for good reason of her own, was on the jurisdictional turf of Ghana and she was there vulnera ⁴⁰⁸ ble to the service of process. To be opportunistic is not, ipso facto, to be fraudulent. The proper place in which to litigate the adequacy of personal service in Ghana, moreover, would seem to be in the courts of Ghana.

As a matter of fact, the Wife filed a motion in the Ghana court on September 6, 2009, in which she challenged the jurisdiction of the Ghana court over the case. The Ghana court, however, ruled against her. What this Court held in Schwartz v. Schwartz, 26 Md.App. 427, 431 , 338 A.2d 386 (1975), albeit in a state versus state setting, has at least presumptive persuasive authority here: By participating in the Florida custody hearing, Mrs. Schwartz had a full opportunity to contest the jurisdiction of the Florida court. If she raised that issue and disagreed with the chancellor’s decision, her remedy was to appeal, a remedy which she did not pursue.

It matters not whether she actually litigated the jurisdictional issue there, only that she had the opportunity to do so. (Emphasis supplied). A Juridical Amalgam In the final four pages of the Wife’s brief, we are enmeshed in a tangled skein of intertwining and overlapping considerations. Nowhere does the argument turn square corners.

It drifts without warning from one issue into what may be a very distinct issue, sometimes apposite but frequently and treacherously inapposite. Not only in the present case but in the area of jurisdictional collision generally, analysis is exceedingly difficult because the thing to be analyzed is not a single subject, but an amalgam of distinct, albeit more or less closely related, subjects. In the present case, for instance, the claim that was dismissed in Harford County was not simply a petition for divorce. It was also a petition for child custody.

The rules, or guidelines, for avoiding jurisdictional collision in divorce cases are not precisely the same as those for avoiding jurisdictional collision in custody cases. The former are more generic and customary. ⁴⁰⁹ The latter are detailed and statutorily spelled out by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which has been the law of Maryland since October 1, 2004 and is now codified as Maryland Code, Family Law Article, §§ 9.5-101 through 9.5-318. If the respective set of rules or guidelines should tilt in opposite directions, should a resolution of the jurisdictional question in one direction on one of the issues “trump” a resolution in the other direction on the other issue, or should we fragment the divorce trial from the custody trial, to the possibly great inconvenience of parties and witnesses and to the unquestioned detriment of judicial economy. If the former, should divorce trump custody or should custody trump divorce?

In the present case, moreover, the UCCJEA might conceivably point in one direction for the custody trial of one of the children and in another direction for the custody of the other. Does that make sense? This would seem to be an area that calls for a lot of balancing and that, by definition, means it is an area calling for the exercise of judicial discretion. Even if, however, we could totally eliminate either the divorce issue or the custody issue from the mix and deal exclusively with the other, we would still need to sort out different types of issues, one from the other.

In a very loose and fluid employment of the word, the term “comity” is regularly used as the identifying label for this entire package of issues. Comity, however, has two very different applications, one post-trial and the other pre-trial. Comity with a capital “C” refers to the deference that one jurisdiction should afford to the finally litigated judgments and orders of another jurisdiction, by way of recognizing and enforcing those judgments and orders. With respect to the states of the United States, such comity is constitutionally mandated by the Full Faith and Credit Clause of Article IV, Section 1: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” ⁴¹⁰ See Day v. Day, 237 Md. 229 , 205 A.2d 798 (1965); Schwartz v. Schwartz, 26 Md.App. 427 , 338 A.2d 386 (1975). If Comity with a capital “C” refers to the recognition and enforcement by one jurisdiction of the fully and finally litigated judgments of another jurisdiction, there is also a junior varsity level of comity which is, to a large extent, a rule of jurisdictional courtesy or the recognition of an accepted order of precedence. In dealing with the subject of “Courts, VIII Concurrent and Conflicting Jurisdictions, C. Courts of Different States or Countries,” § 308, 21 Corpus Juris Secundum describes this variety of pre-trial comity, which is essentially the courteous deference by one court to another court that has gone first. It is well settled that the mere pendency of a prior parallel suit in one state cannot be pleaded in abatement or in bar to a subsequent suit in another state, even though both suits are between the same parties and involve the same subject matter.

Likewise, the pendency of an action in a foreign country is not a bar to the institution of another action between the same parties and for the same cause of action in a state court in the United State; nor is it the duty of the state court to stay the action pending the determination of the earlier suit in the foreign country, even though the entire controversy might be disposed of there. Rather, where courts of separate sovereigns have concurrent jurisdiction, the two courts may proceed simultaneously until one court reaches judgment. As a matter of comity, however, the court of one state may stay or dismiss a proceeding pending before it on the ground that a case involving the same subject matter and the same parties is pending in a court of another state or foreign country. Under the doctrine of comity, an action may be stayed until a prior parallel action in the courts of a different sovereignty is determined.

Once stayed, the later action remains pending until the judgment in the prior action becomes final. A final judgment favorable to the plaintiffs in the prior action eliminates the need to proceed with the later action where the plaintiffs are the same in ⁴¹¹ both actions; in turn, a final judgment favorable to the defendant may be pleaded in bar to the later action. (Emphasis supplied). In the case now before us, we are dealing with the latter and lesser variety of comity and not with the former.

The Wife in this case argues the virtues of Maryland as the forum primarily with respect to her divorce petition. Her argument with respect to the custody case is very secondary. The caselaw that has been cited to us by both parties presents us with four cases dealing with the issue of divorce rather than that of custody. Three of the four, however, deal with the recognition and enforcement in Maryland of foreign judgments and decrees that have already been finally litigated.

McCabe v. McCabe, 210 Md. 308 , 123 A.2d 447 (1956) (enforcement of Nevada alimony order); Day v. Day, 237 Md. 229 , 205 A.2d 798 (1965) (the recognition of an Alabama divorce decree); Wolff v. Wolff, 40 Md.App. 168 , 389 A.2d 413 (1978); aff'd, 285 Md. 185 , 401 A.2d 479 (1979) (enforcement of English alimony order). Aleem v. Aleem, 175 Md.App. 663 , 931 A.2d 1123 (2007), aff'd 404 Md. 404 , 947 A.2d 489 (2008), deals with the question of whether a divorce action already pending in Montgomery County would have to be dismissed because of an intervening decree of divorce obtained in Pakistan (actually in the Pakistani Embassy in Washington, D.C.). None of these cases offers any significant guidance as to which of two jurisdictions, in each of which a petition of divorce is pending, should take precedence and go forward to trial. The infinite variety of the amalgam is not yet exhausted.

To what relationships between jurisdictions do these rules of comity or judicial courtesy apply? Some of the Maryland caselaw on this general subject is actually limited to the deference which the courts of one Maryland county owe to the courts of another Maryland county which has made a prior assertion of jurisdiction over the case. State v. 91st Street Joint Venture, 330 Md. 620 , 625 A.2d 953 (1993) (neither a divorce case nor a custody case). There is also comity of the “Who shall go first?” variety between American state and American state.

There is finally the somewhat different ques ⁴¹² tion of comity between an American jurisdiction, such as Harford County, Maryland, and a foreign nation, such as Ghana. When comity is asked to cross an international border, moreover, there are also certain limitations that do not generally abide when examining comity between county and county or between state and state. 1 See, e.g., Telnikoff v. Matusevitch, 347 Md. 561 , 702 A.2d 230 (1997) (neither a divorce case nor a custody case); Wolff v. Wolff, supra (divorce); Aleem v. Aleem, supra (divorce); Garg v. Garg, 163 Md.App. 546 , 881 A.2d 1180 (2005), rev’d on other grounds, 393 Md. 225 , 900 A.2d 739 (2006) (custody); Malik v. Malik, 99 Md.App. 521 , 638 A.2d 1184 (1994) (custody); Hosain v. Malik, 108 Md.App. 284 , 671 A.2d 988 (1996) (custody). With three types of jurisdictional relationship multiplied by two levels of comity concern multiplied by two types of case (divorce and child custody), there are self-evidently twelve combinations of “comity” factors that may be brought to bear on a particular case. One should not plunge indiscriminately into this juridical grab bag without a deft hand at careful selectivity.

Our point is that when caselaw is pulled out of one of these twelve pigeonholes and casually cited as authority for a problem lodged in a different pigeonhole, the applicability issue is fraught with obvious danger. In moving from one type of comity issue to another, the controlling considerations may be the same but that is not universally the case. Inappropriate doctrinal leakage is a perennial problem and watertight analysis must be carefully maintained. There is no single entity called “comity.” Issues involving comity appear in a dozen configurations.

Comity is a set of legal rules, but it is also a mood. The analytic imperative is: “Think plural!” ⁴¹³ Characteristics of the Case At Hand The case before us involves the arguably lesser comity issue of “Who shall defer to whom?” when two competing jurisdictions break out of the starting gate at roughly the same time and not with the recognition and enforcement of finally litigated judgments. We are dealing with an international jurisdictional collision between a county of Maryland and the independent Republic of Ghana. We are dealing finally with a jurisdictional contest over the issues of both divorce and custody, not merely in a technical sense but in a case wherein each is vying for appellate center stage.

The custody case, moreover, is actually two custody cases involving respective sets of circumstances that are very different. Abuse of Discretion Standard As an international “Who shall defer?” case, the propriety of the decision will be judged, as are almost questions of which of two competing jurisdictions should be permitted to proceed with the trial of case, by the abuse of discretion standard. Corpus Juris Secundum, op. cit. at § 309, p. 301, explains: The decision to grant a stay or• to dismiss a case due to the pendency of a prior parallel proceedings in a, different state or foreign country is generally within the sound discretion of the trial court. In exercising this discretion, a variety of factors may be considered, including avoiding increased costs; preventing harassment by repeated suits involving the same subject matter; avoiding conflicting or inconsistent judgments; whether the foreign litigation is at an advanced or preliminary stage; the likelihood of obtaining complete relief in the foreign jurisdiction; and the possibility that a judgment entered in the foreign jurisdiction will give rise to collateral estoppel or will render the matter before the court res judicata.

International comity. In deciding to dismiss a case on the ground of international comity, a court should normally consider whether an adequate forum exists in the objecting nation; whether the ⁴¹⁴ foreign court abides by fundamental standards of procedural fairness; and whether the defendant sought to be sued in the United States forum is subject to or has consented to the assertion of jurisdiction against it in the foreign forum. (Emphasis supplied). Albeit dealing with a jurisdictional contest between two Maryland counties, Judge Eldridge in State v. 91st Street Joint Venture, 330 Md. at 627-28 , 625 A.2d 953 , made it crystal clear that the standard of review is that of the abuse of discretion: The first question presented by the State and Ocean City on appeal is whether “the Circuit Court for Baltimore City improperly exercise[d] jurisdiction over a subsequently-filed action involving the same parties and the same issues” as involved in the action already filed in the Circuit Court for Worcester County.

We conclude that the Circuit Court for Baltimore City abused its discretion when it entertained the Joint Venture’s action. (Emphasis supplied). See also Aleem v. Aleem, 175 Md.App. at 683 , 931 A.2d 1123 (Maryland law “permitted a discretionary refusal to recognize a foreign country divorce on the ground that it would manifestly be contrary to public policy”) (emphasis supplied); Gestl v. Frederick, 133 Md.App. 216, 229 , 754 A.2d 1087 (2000) (“We will not disturb a trial court’s decision whether or not to exercise jurisdiction unless the trial court abuses its discretion.”); Solomon v. Solomon, 118 Md.App. 96, 108 , 701 A.2d 1199 (1997) (“[W]e perceive no abuse of discretion.”). When the comity issue before a court is the specific question of which of two jurisdictions should be permitted to go forward with the trial of a case—the jurisdiction in which the complaint was first filed and is pending or the jurisdiction in which a similar complaint was subsequently filed—there are invariably some factors pointing in each direction (at the very least, the convenience and self-evident preference of one of the parties).

There are multiple considerations, some of only negligible weight but some of very heavy weight. The weigh ⁴¹⁵ ing of factors and the balancing of competing considerations is quintessential a type of decision calling for the exercise of judicial discretion. It a decision to which appellate review traditionally extends great deference. “Aprés Vous, Mon Cher Alphonse” From the four pages of the Wife’s brief that purport to argue the merits of the appeal, we have extricated the few and intermittent references to the divorce case from the minimally fuller argument with respect to the custody case. There is absolutely nothing to persuade us that Judge Eaves abused her discretion in dismissing the Harford County divorce complaint because a similar complaint was already pending before the court in Ghana.

The several unilluminating citations to several Family Law Article sections and to two Maryland cases (both dealing with the recognition or non-recognition of finally litigated foreign judgments pursuant to the Full Faith and Credit Clause) are to statutory provisions and to holdings that are not remotely material to the issue before us. The Wife cites to Garg v. Garg, 163 Md.App. 546, 576 , 881 A.2d 1180 (2005), rev’d on other grounds, 393 Md. 225 , 900 A.2d 739 (2006), as tentative authority for the proposition that Judge Eaves could have separated the disposition of the divorce case from that of the custody case, allowing the divorce action to stay in Harford County even if the custody case should properly go to Ghana. The Garg opinion, however, is by no means authority for such a proposition. In Garg, to be sure, the divorce case was remanded to the circuit court because the reason the circuit court had given for dismissing it was not a valid one.

Although a custody action was already pending in India when the Baltimore County petition for