Guen v. Guen

Couch, J., delivered the opinion of the Court. This appeal stems from a decree of divorce a vinculo matrimonii (entitled Decree of Divorce Pro Confesso A Vinculo Matrimonii by the court below) granted to Inge Guen on December 13, 1976 by the Circuit Court for Montgomery County (Mitchell, J.). That decree dissolved the marriage between Inge Guen, appellee, and her husband, Moncef Guen; awarded custody of one minor child (Karim Guen) to appellee; and ordered the appellant to pay $60 per week child support, and $250 per week for the support and maintenance of the appellee. On December 17, 1976, Moncef Guen, who had not appeared in the divorce proceedings, filed a motion raising preliminary objection asking that the divorce decree be set aside on the ground of insufficiency of service of process.

The Chancellor denied the motion, whereupon appellant filed a new motion to set aside, raising both jurisdictional and non-jurisdictional grounds. Appellant then took this appeal before the court below ruled on his new motion to set aside. The issues presented in this appeal revolve around the sufficiency of the service of process under Md. Rule 107 (a)(4)(i). 1 Appellant maintains that service was not properly ⁵⁸⁰ accomplished under this Rule, and as a result the trial court lacked jurisdiction to award the divorce, child custody, and support. Appellee, in essence, contends that service was valid under Rule 107 (a)(4)(i) because that Rule requires only that the appellant have actual notice of the pending suit, and appellant here had actual notice.

Appellee in this context maintains that strict compliance with the foreign law of service was not necessary. Appellee also contends that by virtue of the appellant moving to set aside the decree of the Montgomery County Circuit Court, appellant “generally appeared” so as to waive his preliminary objection. Appellant and appellee both briefly consider whether the court below had in rem jurisdiction. It is unclear whether the Chancellor proceeded on an in rem or in personam basis for jurisdiction.

Rule 105 makes it clear that the acquisition of in rem jurisdiction is to be accomplished in the same manner as in personam jurisdiction. In light of our disposition of this case, we decline to consider whether the court below had in rem jurisdiction in this appeal.* 2 The facts leading to this appeal are relatively simple and undisputed. Moncef Guen, a Tunisian national, and Inge Guen, a German national, were married in London in 1958. According to evidence before the Domestic Relations Master, they resided in Montgomery County from 1968 until February 28,1975.

They owned, as tenants by the entireties, a residence at 6009 Bradley Boulevard, Bethesda, in Montgomery County. On February 28, 1975, appellant left the marital residence, returning in early May to remove one of the minor children, and left permanently to reside in Tunis, Tunisia. ⁵⁸¹ On May 13,1976 appellee filed a bill of complaint for divorce a vinculo matrimonii. The circuit court issued a show cause order directing that the appellant show cause on June 21,1976 why he should not be required to make reasonable child support and alimony pendente lite. On July 6, 1976, counsel for appellee filed a return of private process server, certifying that service of process on appellant was accomplished by sending the Bill of Complaint and Show Cause Order to the appellant at 31 Avenue de Paris, Tunis, Tunisia, by certified mail, restricted delivery, return receipt requested.

On the same day counsel for appellee filed an affidavit “showing notice of proceedings” on the part of appellant. It alleged that counsel for appellee and appellee had received threatening communications from appellant, indicating that he had actual notice of the action. The return receipt was attached to the affidavit. The signature on the receipt did not appear to be that of the appellant.

Apparently appellant pursued his own divorce in Tunisia for he was granted a divorce on July 20, 1976 by a Tunisian court. On December 13, 1976, pursuant to appellee’s motion, the Chancellor ordered the sequestration of the residence at 6009 Bradley Boulevard. On the same day, the Chancellor set aside the Tunisian divorce obtained by appellant. More importantly, the Chancellor signed a decree of divorce pro confess© {a vinculo matrimonii) which, including dissolving the marriage, awarded custody of the minor child, Karim, to appellee, ordered the appellant to pay $60 per week child support, and $250 per week for support and maintenance of appellee.

It was ordered that the sums to be paid for child support and alimony were to be paid from the equity owned by appellant in the sequestered property. Four days later, appellant filed his motion raising preliminary objection and to set aside the decree. The only ground advanced was insufficiency of service of process. Appellant also filed an affidavit asserting that his signature did not appear on the return receipt.'After a hearing on the motion, the Chancellor denied the motion on March 30,1977. ⁵⁸² On April 11,1977, appellant filed a new motion to set aside the decree of divorce, raising various jurisdictional grounds, including the original ground of insufficiency of service of process that had been raised in his initial motion raising preliminary objection, and non-jurisdictional grounds, including that the appellee had testified falsely in the proceedings leading up to the decree of divorce.

Also on April 11,1977, appellant filed a motion for written opinion pursuant to the Chancellor’s denial of his motion raising preliminary objection. On April 26, 1977, appellant filed an order for appeal to this Court. Though appellee filed a reply to appellant’s second motion to set aside, that motion was never ruled on below. On June 22, 1977, the Chancellor filed his memorandum, explaining his grounds for denying appellant’s motion raising preliminary objection.

In his written opinion the Chancellor held that although the signature on the return receipt did not appear to be appellant’s signature, the appellant had been validly served under Md. Rule 107 (a)(4)(i). In so holding, the Chancellor relied on Art. 9 of the Tunisian Code of Civil and Commercial Procedure. 3 Article 9 is, of course, the wrong provision of Tunisian law. Rule 107 (a)(4)(i) contemplates service as it would be accomplished within the foreign country where the defendant can be found. Article 9 applies to service by a Tunisian on a person without Tunisia.

To this extent, the Chancellor erred. Proper reliance should have been placed by the Chancellor on Articles 6 and 8 of the Tunisian Code, which provide for ⁵⁸³ service on a defendant within Tunisia. 4 The Chancellor made no findings as to the sufficiency of service under these articles. However, we believe it within our province to examine the record to determine if there is sufficient evidence of valid service under Articles 6 and 8, so as to prevent the time and expense of an additional appeal, if possible, as permitted by Md. Rule 1085. Assuming, without deciding, that the return of service of process in this case was proper, and entitled to prima facie validity, the return could only be overcome by clear and convincing evidence of the invalidity of service.

J. Whitson Rogers v. Hanley, 21 Md. App. 383 , 319 A. 2d 833 (1974). That standard has been met beyond question in this case. The appellant in his affidavit asserted that he did not sign the return receipt, nor authorize anyone else to sign it. More importantly, as recognized by the trial court and the appellee, the return receipt does not bear appellant’s signature.

Thus no prima facie validity can be accorded to the return of service. Further, the record is devoid of any evidence that service was properly made in accordance with Articles 6 and 8. There is no evidence of personal service on appellant. There is no evidence that appellant could not be found at his domicile, so as to allow service on a member of his household.

There is no evidence that the notice was left with appellant’s representative, servant, or member of his household who had the capacity of discernment. There is no evidence that no one could be found at the domicile of the appellant, or that ⁵⁸⁴ appellant refused to accept process, so as to allow service on the local sheik or headman. There is, essentially, no evidence as to who was served, and under what circumstances, other than the process was mailed to a certain address in Tunis. Accordingly, there is no sufficient evidence on which a finding that service was properly made under Articles 6 and 8 could be predicated.

We must conclude that the formal requirements of Maryland Rule 107 (a)(4)(i) were not met. Appellee argues that despite the failure to meet the formal requirements of Rule 107 (a)(4)(i), the record shows that appellant had actual notice of the Montgomery County divorce proceeding. Appellee contends that Rule 107 (a)(4) requires only actual notice on the part of a defendant. For this proposition appellee relies on certain language found in Walter E. Heller & Co. v. Kocher, 262 Md. 471 , 278 A. 2d 301 (1971), to the effect: “[T]he obvious purpose of the provisions of these Rules [106 and 107] is to provide for methods which will reasonably insure the ultimate reception by the corporation of actual notice that an action has been filed against it____When... a