Dackman v. Dackman

Hammond, C. J., delivered the opinion of the Court. When the bonds of matrimony which have endured for years are severed unilaterally by the husband when he becomes infatuated with another female, the indignity his spouse feels has been heaped upon her often may result in her determination to acquire from him financial support, the adequacy of which she measures by that indignity and, if he seeks a divorce to legitimatize his amour, the measure is weighted by her righteous duty to exact the toll that public morality demands. In such cases the price of the right to remarry may become so high that the husband may take counter measures reflecting the philosophy that the best defense is a strong offense. In this context we approach the problems of the appeal before us.

The appellant husband and the appellee wife were married in 1951 and lived together in or near Baltimore until late in 1967, when the husband went to Nevada on November 21 with his new found love, and established residence. He filed suit for divorce on January 15, 1968, some eight weeks after he arrived, and on February 14 next was granted a divorce, and promptly married his paramour. The wife did not submit to the jurisdiction of the Nevada courts and was not summoned in Nevada. On December 21, 1967, while the husband was establishing his Nevada domicile, the wife filed a suit in the Circuit Court No. 2 of Baltimore City seeking permanent alimony on the basis of his adultery, and custody of and support for the four children of the couple.

She also filed a petition for an ex parte injunction against the husband and various other persons and corporations to prevent him from disposing of or removing from the State his considerable assets, which the court issued, and a petition praying that a designated resident of Nevada be authorized to serve upon the husband personally the subpoena of the Circuit Court No. 2, requiring him to answer the bill for alimony and to serve upon him personally also the petition for the ex parte injunction and the order of court thereon, and an ³³⁴ order nisi for alimony pendente'lite which the court had signed. 1 The husband was personally served in Nevada on December 26, 1967, but not by the individual designated in the order. Thereafter, the husband filed a motion to dismiss the proceedings because the court had no jurisdiction over the person of the husband, and the wife filed a petition alleging the adultery of the husband, his intention to establish a false domicile in Nevada, that he is still a resident of Maryland, that all his property and business are here, that he owns property valued at $250,000, including some 80 rental properties in Baltimore and Baltimore County, and prayed that a trustee be appointed to take possession of and manage all of her husband’s property within the jurisdiction of the court and pay her $250 a week for her support and maintenance and that of the children. The record before Judge Wolf on the motion to dismiss, including the wife’s testimony, shows that the husband was living in Maryland when he married in 1951 and continued to live here with his wife until 1967. He is a member of the Maryland Bar and a current contributor to the Clients’ Security Trust Fund; he had two offices in Baltimore and was Chairman of the Board and a very large stockholder of National City Bank, the principal office of which is in Baltimore.

Soon after he went to Nevada, he resigned as an officer of the Bank and has sold most, if not all, of his stock. He is an officer, director and stockholder of other financial and real estate corporations. He had attempted to have his wife agree to his changing marital partners and when she refused immediately left for Reno, from whence he called her twice in the week after his arrival — the first time again to ask for a divorce and the second to say that if she would write him saying she would agree to a divorce he would return to Baltimore. He has continuously remained in Nevada since the divorce.

The record also shows that there was admitted in evidence at the instance of the wife the record ³³⁵ of the findings of fact and conclusions of law of the Second Judicial District Court of the State of Nevada in and for the County of Washoe which granted the husband an absolute divorce in his suit against the wife. The findings of fact were: “That the Plaintiff for a period of more than six (6) weeks immediately before the filing of this suit, with the bona fide intent to make Nevada his home for an indefinite period of time, has resided and been physically present and domiciled in the State of Nevada, and now so resides and is so domiciled therein; that all of the allegations contained in Plaintiff’s Complaint are true.” The conclusions of law were that “the Court has jurisdiction of the Plaintiff and Defendant and of the subject matter herein, and the Plaintiff is entitled to an absolute and final Decree ■of Divorce * * Judge Wolf held that the husband was a domiciliary of Maryland at the time he was served on December 26, 1967, and that therefore was subject to the “long arm” provision of Code (1965 Repl. Vol.), Art. 75, § 95, under the subtitle “Bases of Personal Jurisdiction over Persons outside this State” (“A court may exercise personal jurisdiction over a person domiciled in * * * this State as to any cause of action”). Judge Wolf held further that although the court had personal jurisdiction over the husband it could not grant interlocutory injunctive relief under Maryland Rule BB71 c under the subtitle “Injunction” because that rule provides under the heading “Domestic Relations” that “an injunction in an action for divorce, alimony, support of wife or child, custody of child or annulment of marriage, shall not be governed by this subtitle.” He held, however, that Code (1966 Repl.

Vol.), Art. 16, § 4, authorized the court “to seize the property of a nonresident defendant pursuant to a bill of complaint for permanent alimony * * * [and this while the husband] is a domiciliary of this State, he is temporarily a nonresident and as such falls within the provisions of this Section.” 2 (Italics supplied) ³³⁶ The court’s order dated March 11, 1968, was that “the Respondent’s Motion to Dismiss of February 8, 1968, be and hereby is overruled.” The husband entered an appeal “from the Decree dated March 11,1968.” We held in Eisel v. Howell, 220 Md. 584, 586 , that: “The denial of a challenge to the jurisdiction does not settle or conclude the rights of any party or deny him the means of proceeding further. It settles nothing finally. An order which does none of these things is not appealable.” This holding was followed in Milio v. Bar Association, 227 Md. 527, 530 , and see Middleman v. Md. Nat. Comm., 232 Md. 285, 289 , and Lawrence v. Dep't of Health, 247 Md. 367, 371 .

We have concluded, however, that the substantial merits of the matter before us will not be furthered or determined unless the case is remanded under Maryland Rule 871 a without affirmance, reversal or modification, and that the purposes of justice will be advanced by permitting further proceedings in the cause. The Nevada divorce decree is entitled to and must be given presumptive validity and full faith and credit in Maryland unless and until it is judicially impeached by proof that the husband did not acquire a valid domicile in Nevada as the court of that State held that he had. Brewster v. Brewster, 204 Md. 501, 504-505 ; Colby v. Colby, 217 Md. 35 , cert. denied sub nom Appleby v. Colby, 358 U. S. 838 ; Day v. Day, 237 Md. 229 ; Staley v. Staley, 251 Md. 701 . The court below did not expressly find the Nevada divorce invalid and if it be argued' that it necessarily did so inferentially, the answer is that the record does not support a finding of invalidity, and until invalidity is judicially determined the finding of fact of the Nevada court that the husband had been domiciled in Nevada for at least six weeks prior to January 15, 1968 — that is, from at least ³³⁷ December 4, 1967 — stands unimpeached.

The wife’s bill was not filed until December 21, 1967 and service on the husband was not had until five days later. The applicability of § 95 of Art. 75 of the Code turns on the fact of Maryland domicile of the one to be served in another State, and that section cannot be used as a basis of personal jurisdiction if the defendant was not a domiciliary of Maryland when suit was filed against him and when he was served. In Naylor v. Naylor, 217 Md. 615, 624 , in which a Nevada divorce decree was held invalid because there was no actual domicile in Nevada, we pointed out some of the tests the courts have used to determine the genuineness of domicile in a sister State. There the Maryland deserter had remained in Nevada, for most of two years.

We said: “An examination of the relatively few cases in recent years which have sustained the bona fide character of the domicile in another state reveals that one or all of several other factors were present, such as: (i) residence in the divorce-granting state for a substantial period before the divorce action was instituted; (ii) the removal of all or substantially all of one’s personal property to the new residence; (iii) the severance of all or most of one’s connections in the state departed from; (iv) the engagement in permanent business activities or gainful employment; and (v) the purchase or renting of a permanent home or other substantial place of abode.” In the present case the husband not only has remained in-Nevada some fourteen months but has apparently severed his Maryland business and social connections. It was not shown what personal property he has taken to Nevada, whether he is permanently engaged in business there or not, or whether he has purchased or rented a permanent home there. For the wife to invalidate the Nevada divorce she must offer more persuasive evidence of Nevada non-domicile than she has yet produced. We come to the matter of the applicability of § 4 of Art. 16 of the Code, or a variant thereof governed by the same ra ³³⁸ tionale.

As the Maryland law has stood heretofore, the unimpeached Nevada decree granting an absolute and final divorce to the husband would deprive the courts of this State of power to award the wife monetary support for herself. In Johnson v. Johnson, 199 Md. 329 , the wife appeared in a Florida court which was entertaining her husband’s suit for divorce. The Court said: “the question usually raised in tourist divorce cases, as to the domicile of the plaintiff, apparently was not raised in this Florida case. It would be futile to raise it now, plaintiff having appeared in the Florida case. “we now face the question whether, under Maryland law, the Maryland court is authorized to exercise jurisdiction * * *. “The answer is, no.

The authorities are in conflict in different jurisdictions. Staub v. Staub, 170 Md. 202, 204-212, 183 A. 605 . In Maryland the court has no authority to make, change or enforce provision for payment by a former husband to his former wife of alimony (except power reserved, expressly or by implication, to modify provision for alimony in a decree for divorce a vinculo) or ‘suit money.’ Tabeling v. Tabeling, 157 Md. 429 , 146 A. 389 ; Staub v. Staub, supra; Tome v. Tome, 180 Md. 31 , 22 A. 2d 549 . It is immaterial whether the marriage relation was terminated by death, McCurley v. McCurley, 60 Md. 185 , by a Maryland divorce, Tabeling v. Tabeling, Tome v. Tome, or by a divorce in another state, Staub v. Staub.

It is likewise immaterial to distinguish on the facts the instant case from the cases just cited or from any cases which have arisen under the full faith and credit clause. The question is not a constitutional question, but a question of Maryland law. If Maryland is to enter into competition with other states to occupy as much ‘divisible divorce’ jurisdiction as possible under E stin v. Estin, 334 U. S. 541 , 68 S. Ct. 1213 , 92 L. Ed. 1561 , the Maryland legislature must first change the Maryland law, so that power to make and change ³³⁹ maintenance and expense allowances shall survive divorce. * * * “As we have said, the authorities in different jurisdictions are in conflict as to whether power to award alimony or suit money may survive the dissolution of the marriage relation.” [ 199 Md. at 336-339 ] Tab cling held that a wife divorced absolutely by a Maryland Court could not be allowed alimony or counsel fees because “When the petition * * * was filed, the appellee was not the wife of the appellant, and as alimony pendente lite and counsel fees are allowable only to a wife, because of the relatipnship of husband and wife, one who is not a wife is not entitled to such allowance.” [ 157 Md. at 429, 437 ] In Staub the Court equated alimony allowed by the statute in cases of absolute divorce — then § 15, now § 3 of Art. 16 of the Code — with ecclesiastical alimony allowable only in cases of partial divorce under which the marital status stood and which is statutorily provided for in Maryland by then § 14, now § 2 of Art. 16 of the Code, and said : “Moreover, under the reasoning of this court in the cases of Emerson v. Emerson, Tabeling v. Tabeling, and Marshall v. Marshall, supra, and authorities cited therein, we are unable to conclude that the right to maintain a proceeding for alimony may survive the dissolution of the marriage relation, since alimony is founded upon the common law obligation of a husband to support his wife, which, in the absence of some saving statute, must necessarily end by the passage of a decree effectively dissolving the marriage tie, and it seems to us that the cases in other jurisdictions adopting this view are fortified by justice and reason.” [ 170 Md. 202, 212 ] Not long after the decision of Johnson in 1952 came indications that the rule of that case and of Tabeling and Staub in their holdings that statutory alimony was the same in cases ³⁴⁰ of absolute divorce as in cases of partial divorce was not sacrosanct. The Johnsons engaged in further litigation when he filed a petition to obtain release of certain of his stock which was held by the clerk of the court to secure payment of alimony ordered by the Maryland Court prior to the Florida divorce decree.

On the strength of the first Johnson case, this Court reversed the chancellor and ordered the stock released. Johnson v. Johnson, 202 Md. 547 . Chief Judge Sobeloff and Judge Hammond concurred in the result, in an opinion by the latter, not because they thought it “right or desirable but rather because it was indicated by a decent respect for the rule of stare decisis and compelled by obedience to the principle of res judicata.” The concurring opinion pointed out the unrealistic concept of alimony in the earlier cases, saying: “In some States the Courts have refused to penalize their