Dean v. Dean

Henderson, J., delivered the opinion of the Court. This appeal is from an order dated January 24, 1955, granting a motion for summary judgment and dismissing a bill of complaint with prejudice. The bill was filed by an alleged wife seeking permanent alimony and support for her minor children. It alleged that she had been married to the respondent by a religious ceremony performed in Kentucky on October 3, 1938.

The answer denied this allegation, and alleged that the invalidity of the purported marriage had been judicially determined in a proceeding in this State in 1953. The respondent also filed a motion for summary judgment in which it was alleged that no marriage between the parties had ever been performed; that the purported marriage certificate evidencing such marriage and signed by a minister and several witnesses, was false and fraudulent; and that the invalidity of the alleged marriage had been judicially determined in Kentucky, in a proceeding instituted by the respondent in 1951. An exemplified copy of these proceedings, with appropriate affidavits, was attached to the motion. It appears from these proceedings that the action was filed in the Circuit Court of Clay County, and that the alleged wife was apprised of the action by letter sent by a specially appointed “warning order attorney”, but did not personally appear.

Proof was offered that both parties were residents of Maryland at that time, although they separated in 1947, he taking custody of the children then born, whom he has since supported. He married another woman in 1952 and has two children by her. Proof was also offered that the purported marriage certificate, dated October 1, 1938, was a forgery, and that it had been returned to the court for record by the alleged wife in 1949; that none of the persons purporting to be present as witnesses, were in fact witnesses; and that no marriage ceremony had ever been performed as certified, or at any other time. On April 18, 1951, the court ordered that the purported marriage certificate be “cancelled, annulled, set aside and forever held for naught”, and expunged from the record.

The motion ³⁹⁴ further alleged that the order was final, had not been appealed, and that the time for appeal had expired. In her answer to the motion the complainant (appellant) denied that the Circuit Court of Clay County had jurisdiction over the parties, and alleged that no notice of the proceedings was ever served upon her, and that the entire proceedings were a fraud upon that court. She filed no exhibits or counter-affidavits. After hearing upon the motion, the Chancellor held that there was no genuine dispute as to any material facts, and that the order of the Kentucky court was entitled to full faith and credit.

Accordingly, he granted the motion and dismissed the bill. She appealed. The appeal was argued in this Court in October, 1955. After the argument, counsel for the appellant represented to us that they proposed to contest the order of the Circuit Court of Clay County in Kentucky, and asked for a continuance, which we granted.

We were subsequently advised that she obtained a judgment setting aside the former judgment, but we granted a further continuance pending appeal. We were then advised that the matter had been finally decided by the Court of Appeals of Kentucky, and a copy of that opinion, not then officially reported, was supplied. The pending case was thereupon submitted for our decision upon the briefs heretofore filed, and without further argument. We continued the case further, upon being advised that a petition for rehearing had been filed.

We are now advised that the motion was denied on December 12, 1958. It appears that the appellant did not succeed in her effort in the spring of 1955 to set aside the judgment of April 18, 1951, expunging the purported marriage certificate from the record. This judgment, setting aside the original judgment, was reversed in the Court of Appeals of Kentucky, where the judgment of 1955 was described as “adjudicating that Isom Dean and Daisy Mae Gregory were lawfully married”. The ground of reversal was that she had failed to contest the original judgment within the time required by the applicable Civil Rules, after having full knowledge of the judgment at least as early as May, 1951, and within three weeks after its rendition. ³⁹⁵ While the