Hernandez v. Hernandez

KRAUSER, J. Appellant Rene Hernandez, a captain on active duty in the United States Army, filed suit in the Superior Court of Bayamon, Commonwealth of Puerto Rico, seeking a divorce from his wife, appellee Yolanda Hernandez, who was then living in Maryland with the couple’s minor child. When appellee failed to file a response to that suit, the Puerto Rico court granted appellant a divorce, while granting custody of the minor child to appellee. In the meantime, appellee brought a more expansive divorce action in Maryland. Filing a complaint for absolute divorce in the Circuit Court for Anne Arundel County, appellee sought sole custody of their child, as well as child support, alimony, and distribution of the marital assets.

After appellant filed an answer to the Maryland suit, a trial was scheduled to commence in the Anne Arundel County circuit court on a date agreed to by both parties. In the weeks leading up to trial, appellant filed several motions to stay the proceedings pursuant to 50 App. U.S.C. § 522. That section requires a court, if certain conditions are met, to grant a servicemember’s request for a stay of proceedings in a civil case for at least 90 days. All of those motions were denied, including the last, which contained a letter signed by appellant’s commander attesting to his unavailability.

A trial, in appellant’s absence, was held, as scheduled. When that ex parte proceeding concluded, the circuit court found that the parties had been divorced by the Puerto Rico court, granted appellee custody of the parties’ minor child, as well as rehabilitative alimony, child support, and a share of appellee’s military pension on an “if, as and when” basis. ⁶⁸² Appealing from that order, appellant presents six questions for our review, but only two are relevant to this appeal. 1 Stripped of argument, they are: I. Whether the circuit court had jurisdiction over appellant and the subject matter of the action.

II

Whether the circuit court erred in denying appellant’s motions for stay of proceedings pursuant to 50 App. U.S.C. §§ 521 and 522. For the reasons that follow, we hold that the Anne Arundel County circuit court did, in fact, have personal jurisdiction over appellant as well as jurisdiction over the subject matter of this action. But we shall vacate the judgment of that court because it failed to stay the proceedings, pursuant to 50 App. U.S.C. § 522, as appellant requested. Having resolved this appeal on that issue, we need not address appellant’s other concerns.

BACKGROUND The following facts are not in dispute: On June 5, 1992, the parties were married in Panama City, Panama. On July 27, 1994, they had a child. Although the parties disagree as to who left whom, they do agree that, by February of 2001, the marriage was, in essence, over. At that time, appellant, who was and still is an active member of the United States Armed Forces, received orders to relocate to Puerto Rico.

In compliance with those orders, he left for Puerto Rico. When that occurred, appellee and the parties’ child moved to Anne Arundel County, Maryland, to live with appellee’s sister. ⁶⁸³ In May of 2001, appellant filed for a divorce in Florida. Appellant was not certain where appellee and their child were living at the time, and it is unclear from the record whether appellee was actually served with process. In any event, the Florida court granted him a judgment of divorce in 2001.

But that judgment was set aside upon appellee’s motion, which successfully argued that the Florida court lacked personal jurisdiction over her. On August 12, 2003, appellant again filed for a divorce, but, this time, in the Superior Court of Bayamon, Puerto Rico, and that suit was personally served on appellee. When appellee neither appeared nor filed an answer in the Puerto Rico proceedings, the Puerto Rico court issued a decree on November 5, 2003, dissolving the marriage. In so doing, it granted sole custody of the minor child to appellee and ordered appellant to pay child support in the amount of $349 per month.

While the Puerto Rico divorce proceedings were pending, on August 28, 2003, appellee filed a complaint for absolute divorce in the Circuit Court for Anne Arundel County, requesting custody of the minor child, child support, permanent alimony, and a distribution of marital property. After filing an answer, appellant moved to dismiss the action, attaching to his motion the November 5th Puerto Rico divorce decree. In an opposition to that motion, appellee argued that the Puerto Rico court did not have jurisdiction over issues of marital property, alimony, child custody or support. The circuit court agreed and denied appellant’s motion to dismiss.

On January 12, 2004, appellee filed a supplemental complaint, again requesting that the circuit court distribute the marital property, grant her custody of the minor child, as well as alimony and child support. On January 22, 2004, appellee advised the circuit court that he had been transferred from Puerto Rico to San Antonio, Texas. On February 5, 2004, appellant’s attorney entered an appearance. On February 18, 2004, the parties attended a scheduling conference; at which time they agreed, and the court later ordered, that a pre-trial ⁶⁸⁴ hearing be held on July 6, 2004.

After that hearing, the circuit court scheduled trial for September 8, 2004, a date agreed upon by the parties. Although appellant knew, at that time, that he might be deployed to Colombia, South America, in the near future, he did not know the precise date on which that was to occur. On July 21, 2004, concluding that he could no longer afford his attorney’s services, appellant sent him a letter terminating his representation. On July 23, 2004, after receiving the letter, appellant’s counsel filed a motion to withdraw his appearance.

On August 3, 2004, appellee filed a response to that motion, stating that she opposed the motion on the grounds that it would postpone the trial. On August 11, 2004, the circuit court issued an order “defer[ring] action on the motion [to withdraw appearance] until either: (1) The pending 9/8/04 trial [was] completed, (2) Defendant obtained] another attorney as a substitute or (3) Defendant fil[ed] a written statement, indicating that he intends to represent himself at trial and, therefore that he will not ask for any postponements in order to obtain an attorney.” (Emphasis in original.) On August 10, 2004, appellant filed a written statement informing the circuit court of his intent to proceed pro se. A month before trial, on August 11, 2004, appellant filed his first motion to stay the proceedings pursuant to 50 App. U.S.C. § 521, now § 522. In that pro se motion, appellant stated that he had received orders from the United States Army to move to Colombia, South America, for twelve months starting September 26, 2004.

He further stated that a mandatory training course required him to report to Fort Bragg, North Carolina, by September 19, 2004, and that, to comply with all the requirements for his permanent change of station, he had to begin “out-processing procedures” on September 2, 2004. The “out-processing procedures” included, among other things, obtaining passports, visas, and other paperwork, as well as attending medical and dental appointments. Appellant further stated that his ability to defend the divorce action would be “materially affected” by his active ⁶⁸⁵ duty service and his permanent change of station to Colombia and that the nature of his duties before and during deployment would prevent him from attending the trial as scheduled and from communicating effectively with the circuit court. In support of his motion, appellant attached his orders for permanent change of station, which contained a list of administrative requirements, and a letter from his commanding officer stating that appellant’s current military duty prevented him from appearing at the September 8th trial.

He did, however, indicate that he would be available for trial after October 1, 2005. On August 25, 2004, two weeks before trial, appellant filed a second motion for stay of proceedings. The second motion reiterated the assertions contained in the first motion, but, unlike the first motion, it was prepared by counsel. On August 31, 2004, a week before trial, the circuit court denied appellant’s motion for stay of proceedings on the grounds that appellant’s motion “ha[d] not provided evidence that a request for leave would not be granted for the” September 8th trial.

That same day, the circuit court permitted appellant’s attorney to withdraw his appearance. On September 7, 2004, one day before the scheduled trial, in response to the circuit court’s order of August 31st, appellant submitted a third motion for stay of proceedings. The motion was pursuant to 50 App. U.S.C. § 522(b), and, in the alternative, pursuant to 50 App. U.S.C. § 521. 2 To that motion, ⁶⁸⁶ appellant attached a letter from his commanding officer stating that his military duty prevented him from appearing in court on September 8, 2004, and that his request for leave was denied. Appellant also stated that he would be available to appear in court after October 1, 2005.

Because the motion was submitted over Labor Day weekend, the circuit court received the motion in “open court” on the morning of September 8, 2004. After the court denied that motion, an ex parte trial ensued. When the trial ended, the circuit court issued an order finding that the parties were divorced by the Puerto Rico court, awarding custody of the parties’ minor child to appellee, directing appellant to pay child support in the amount of $662 per month, and awarding rehabilitative alimony to appellee. It further granted appellee a share of appellant’s military pension on an “if, as and when” basis, ordered an equal division of the parties’ jointly owned tangible property, and instructed appellant to pay $2,000 of appellee’s attorney’s fees.

MOTION TO SUPPLEMENT On October 18, 2005, appellant filed a Motion to Supplement Initial Brief and Record on Appeal. Because this motion is unopposed and would provide helpful information to this Court, we shall grant it. DISCUSSION I. Appellant contends that the circuit court lacked personal jurisdiction over him and subject-matter jurisdiction over this action. This argument is without merit. ⁶⁸⁷ Appellant has waived the defense of lack of personal jurisdiction by failing to comply with Maryland Rule 2-322(a).

That rule states, in part: “The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required,” and then specifies lack of jurisdiction over the person, among others. It then warns, “If not so made and the answer is filed, these defenses are waived.” Because appellant failed to file a separate motion to dismiss before he filed an answer containing such a request, appellant waived this defense and thereby consented to personal jurisdiction. The circuit court also had jurisdiction over the subject matter of this action. Maryland Code