Bartell v. Bartell

Smith, J., delivered the opinion of the Court. In this quarrel between a husband and a wife the issues presented to us for determination are out of the ordinary. Appellee, Daniel L. Bartell (Dr. Bartell), and appellant, Eileen Bartell (Mrs. Bartell), were married in Baltimore in 1952. He left his wife and their two teenage daughters on June 1, 1974.

The parties at that time were residing in Baltimore County, where they had resided for a number of years. On July 25, 1974, Mrs. Bartell filed a bill of complaint charging desertion and adultery. She sought permanent alimony, alimony pendente lite, custody of the children, support of the children, and counsel fees. She also asked for an ex parte injunction aimed at restricting the removal of ¹⁴ Dr. Kartell’s assets from the State.

That petition alleged that he had fled the jurisdiction and was then located in the Province of Alberta, Canada. On August 8, at Slave Lake, Alberta, Dr. Bartell was served, by a private process server, with the bill of complaint, the show cause order passed relative to alimony pendente lite, the petition for injunction, and the order on that petition. He promptly filed a motion raising preliminary objection on the ground that he was “a resident and domiciliary of Alberta, Canada at the time this suit was instituted,” that he had “not been served in Maryland, nor ha[d] he consented to the jurisdiction of [the Circuit Court for Baltimore County].” The motion raising preliminary objection came on for hearing before Judge Raine. He said: “[Mrs. Bartell] answered the motion contending that [Dr. Bartell] was in fact and law domiciled in Maryland.

Very frequently a matter of this nature is decided on the basis of affidavits, but the affidavit is not acceptable over the objection, for the opposing party cannot be denied the right of cross-examination on the facts set forth in the affidavit. Counsel then proposed that the testimony of [Dr. Bartell] on this issue could be offered by way of a deposition of [Dr. Bartell] to be taken, in Canada. The deposition rules do cover the deposition of parties as well as mere witnesses, but the use of any deposition is not permitted where the witness or party is out of state and where the absence is procured by the party offering the deposition. Maryland Rule 413.

Consequently there will have to be an evidentiary hearing on the question of [Dr. Bartell’s] domicile at which time [Dr. Bartell] will have to appear in person to testify if he wishes to introduce his own testimony on the issue of his domicile.” Notwithstanding the chancellor’s ruling on the matter of a deposition, counsel for Dr. Bartell filed a motion on November 14 under Maryland Rule 403 c for a commission ¹⁵ to take Dr. Bartell’s testimony at Slave Lake. Mrs. Bartell countered with a motion under Rule 406 for a protective order that the deposition not be taken or, in the alternative, that Dr. Bartell pay in advance the cost and expense of having her attorney present at the deposition. To this the chancellor said: “Motion Denied. Court repeats its ruling that deposition of Dr. Bartell will not be admitted.

In the event of a change in parties’ circumstances affecting this ruling, the present motion may be resubmitted and reconsidered.” The deposition was taken. An evidentiary hearing on the motion raising preliminary objection was held before Judge Raine on December 2. On December 10 Dr. Bartell “move[d] the Court to rescind its prior Order of September 30, 1974, as reordered on November 13, 1974, and to permit the introduction into evidence at the hearing on [his] Motion Raising Preliminary Objections [of his] deposition.” On December 10 Judge Raine filed a memorandum denying the motion raising preliminary objection. He referred to the fact that he “ha[d] excluded certain items of evidence proffered by [Dr. Bartell] in his effort to sustain his objection to the jurisdiction.” The memorandum said relative to the two matters here in issue: “No. 2.

The deposition of [Dr. Bartell]. The Maryland Rules govern the use of depositions of parties as well as other witnesses. A party can use the deposition of an adverse party for any reason, but the Rules do not permit a party who has procured his own absence from the state to remain without the state and litigate his cause by means of a foreign deposition. In this case it is clear that on or shortly after June 1, 1974 [Dr. Bartell] left the State of Maryland of his own volition, and there is no known reason, why he could not return to Maryland to testify. [Mrs. Bartell] was given notice of the taking of the deposition in Alberta, Canada, ¹⁶ but did not attend the same. [Mrs. Bartell] alleged that she had no funds of her own to send her counsel to Canada or employ Canadian counsel.

There are funds of [Dr. Bartell] here in this state and subject to the Court’s jurisdiction, but this Court declined to invade those funds, which might be at the ultimate expense of the wife and children, to send counsel to Canada. “No. 3. When [Dr. Bartell] left Maryland he left certain notes which were proffered by his attorney to show his intention to remain outside the state permanently. These notes were not shown to be within any res gestae exceptions, and were excluded as being of a clearly self-serving nature.” Ultimately a decree was passed awarding Mrs. Bartell permanent alimony, custody of the minor children, support for those children, and counsel fees. The decree provided that certain assets in Maryland should be liable for the alimony and support payments and enjoined their removal from the jurisdiction.

Dr. Bartell appealed to the Court of Special Appeals, contending that the chancellor had erred in excluding the deposition and certain of Dr. Bartell’s writings. That court reversed in Bartell v. Bartell, 28 Md. App. 180 , 344 A. 2d 139 (1975). We granted the writ of certiorari for the purpose of considering these two matters. We shall reverse the ruling relative to the deposition and vacate the ruling relative to Dr. Bartell’s writings.

I The Deposition We are here concerned with Maryland Rule 413 a 3 (2). It provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was present or ¹⁷ represented at the taking of the deposition or who had due notice thereof, if the court finds: “(1) ... “(2) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition . . . The only difference between this rule and Deposition Rule 11, adopted by our predecessors in 1941, is that the word “State” now appears where “jurisdiction” formerly appeared. The finding required of the court by the federal counterpart, Fed. R. Civ.

P. 32 (a) (3) (B) is “that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States. . . This provision for use formerly was found in Fed. R. Civ. P. 26 (d) (3). We said in Gillespie v. R & J Constr.

Co., 275 Md. 454 , 341 A. 2d 417 (1975): “[A] hornbook rule of statutory construction is that in ascertaining the intention of the General Assembly all parts of a statute are to be read together to find the intention as to any one part, that all parts are to be reconciled and harmonized if possible, and that a corollary rule of construction is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless, or nugatory. [(Citing cases.)] [W]e [have] also cited a number of cases for the proposition that the cardinal rale of statutory construction is to ascertain and carry out the real legislative intent and that in ascertaining that intent the Court considers the language of an enactment in its natural and ordinary signification. [(Citing cases.)]”Id at 457. This would be equally applicable to interpretation of a rule. ¹⁸ This Court has not previously interpreted this portion of this rule. Snowhite v. State, Use of Tennant, 243 Md. 291, 308-09 , 221 A. 2d 342 (1966), concerned another part of Rule 413 (a). Judge Barnes there said for the Court that we “will look to federal decisions construing the corresponding federal rule for guidance in construing the similar Maryland rule.

Hallman v. Gross, 190 Md. 563 , 59 A. 2d 304 (1948); Eastern States Corp. v. Eisler, 181 Md. 526 , 30 A. 2d 867 (1943).” Some of the discussion of the federal rule has involved the question as to whether “absence” refers to absence from the geographical territory or absence from the trial, a point with which we do not need to concern ourselves. See, e.g., J. Moore, Federal Practice ¶ 32.05 [1] at 32-28 to 32-30 (1976); and 8 Wright & Miller, Federal Practice and Procedure: Civil § 2147 (1970). One of the earliest cases to apply the federal rule was Weiss v. Weiner, 10 F.R.D. 387 (D. Md. 1950), an action for an alleged breach of contract in which the defendant had agreed to sell the plaintiff a certain quantity of sheet steel. The plaintiff, disappointed in the size of the verdict returned by the jury, moved for a new trial.

One of the grounds asserted was error in the admission of the defendant’s deposition at trial. He was a former resident of Maryland then residing in Florida where he had resided for a number of months prior to the institution of the suit. Judge Chesnut held that the requirements of Fed. R. Civ. P. 26 (d) (3) were “therefore literally gratified unless the circumstances satisfied] the court that the deponent’s absence could have been said to have been procured by himself.” (Emphasis by Judge Chesnut.) He pointed out that it “[presumably . . . was a disadvantage to the defendant himself not to have his own evidence heard by the jury,” that as he had been “fully examined and .. . cross-examined in the taking of his deposition , .. it could not be said that the [plaintiff] was deprived of the opportunity to cross-examine him,” that nothing was shown to indicate to the court when the deposition was offered “that the appearance, demeanor or ¹⁹ behavior of the defendant in the taking of the deposition was such that it would have been an advantage to the plaintiff to have had him present for the observance of the jury at the trial,” and that the deposition seemed to him as a trial judge to be “of very minor importance ... in relation to the jury verdict which [he] th[ought] was based substantially on the oral evidence that the jury heard from the plaintiffs own witnesses.” He then said: “I do not think it can justly be said that under the circumstances of this case, in so far as the court could gather them at the trial, the party had procured his own absence.

The word ‘procured’ in this context would seem to imply that a party had collusively instigated or induced a witness to remove himself from being subjected to a subpoena to testify at the trial, or at least had unfairly and for an improper purpose deliberately absented himself shortly before the trial from the jurisdiction so he could not be examined. So far as I know no effort was made by the plaintiffs attorney in this case to summon the defendant to appear as a witness at the trial.” Id. at 389 . (Emphasis in original.) Obviously, the subpoena powers of the State of Maryland stop at the state line. Thus, Mrs. Bartell was powerless to compel the attendance