Kartell v. Kartell

Moore, J., delivered the opinion of the Court. The principal question presented on this appeal is whether the appellant-husband “procured” his own absence within the meaning of Maryland Rule 413 and thus rendered inadmissible his deposition — duly taken in Edmonton, Alberta, Canada — at an evidentiary hearing before the Circuit Court for Baltimore County (Raine, J.) to determine the question of lack of personal jurisdiction, raised as a preliminary objection under Maryland Rule 323. The Chancellor excluded the deposition. He also held that a written communication to appellant’s wife and one to his professional associate were inadmissible.

We find reversible error in these rulings. I Factual and Procedural Background. Appellant, Daniel L. Kartell, D.D.S., and his wife, Eileen, ¹⁸² were married in Baltimore on December 21, 1952 and had two daughters, 18 and 15 years of age. On June 1, 1974, without any prior notice to or communication with his wife, Dr. Bartell left her and the children.

A letter from him to Mrs. Bartell was hand-delivered to her by a stranger after his departure. 1 On July 25, 1974, Mrs. Bartell filed a bill of complaint for alimony, support and custody, based upon alleged adultery, abandonment and desertion. Simultaneously, she sought and obtained an Ex Parte Injunction 2 and an Order for the appointment of a special process server on the ground that the husband was “temporarily residing in Alberta, Canada.” Dr. Bartell was subsequently served on August 8,1974 in the Town of Slave Lake, Province of Alberta, Canada and thereafter challenged, by Motion Raising Preliminary Objection, the court’s jurisdiction over his person. A supporting affidavit recited inter alia his residence in the Town of Slave Lake prior to the institution of his wife’s action, that he intended to remain permanently in Alberta and not to return to Maryland, and that he was a licensed dentist in Canada and had established dental practice in the Town of Slave Lake. After an apparent conference in Chambers with counsel for the respective parties, Judge Raine filed a Memorandum and Order on September 30, 1974 in which he ruled that it was inappropriate, in the face of objection, to decide the jurisdictional issue on the basis of affidavits.

A suggestion by Dr. Bartell’s counsel that he be deposed in Canada was rejected. Judge Raine’s Memorandum stated: “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 ¹⁸³ 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 the Respondent’s domicile at which time the Respondent will have to appear in person to testify if he wishes to introduce his own testimony on the issue of his domicile.

When he does so appear he is not subject to being served with process, Maryland Rule 104g....” (Emphasis added.) An evidentiary hearing on the “sole question of Dr. Bartell’s domiciliary status” was thereafter scheduled for December 2, 1974. In mid-November, however, counsel for Dr. Bartell filed (1) a notice for the taking of his deposition in Edmonton, Canada on November 19, 1974 and (2) a motion for the appointment of a Commissioner to take testimony. Paragraph 5 of the latter motion stated: “It is both necessary and convenient for such commission to be issued by this Court in that this Court does not have personal jurisdiction over Daniel L. Bartell sufficient to require his attendance in Maryland and Daniel L. Bartell cannot and mil not be present at the scheduled hearing.” (Emphasis added.) Counsel for Mrs. Bartell responded with alacrity, filing a Motion for Protective Order under Md. Rule 406 a (10) on the day the deposition notice was received. “Hardship, oppression or undue expense” was claimed because of the cost of transportation and lack of funds to employ counsel. The Chancellor (a) signed an Order that the clerk issue the Commission to take testimony as prayed and (b) denied the wife’s motion for a Protective Order, with the following hand-written disposition, dated November 13,1974: “Motion Denied, Court repeats its ruling that deposition of Dr. Bartell mil not be admitted.

In the event of a change in parties’ circumstances affecting this ruling, the present motion may be resubmitted & reconsidered.” (Emphasis added.) ¹⁸⁴ Dr. Bartell’s deposition was thereafter taken by his local counsel in Edmonton, Mrs. Bartell not being present nor represented by counsel. At the hearing on December 2, 1974 on the husband’s preliminary objection, his Maryland counsel presented a written motion to “Rescind Prior Order And To Admit In Evidence The Deposition of Daniel L. Bartell....” The motion was denied and the testimony of Mrs. Bartell and five other witnesses was taken, with counsel for Dr. Bartell participating. The matter was held sub curia and on December 5, 1974, Judge Raine denied the husband’s motion in a memorandum opinion. With respect to the exclusion of the deposition, the Chancellor wrote: “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, 197b the Respondent left the State of Maryland of his own volition, and there is no known reason why he could wot return to Maryland to testify.” (Emphasis added.) The evidence adduced on behalf of the wife at the hearing was then summarized and the court’s memorandum concluded: “Where facts of this nature are shown the burden shifts to the person who affirmatively asserts that there has been a change in his domiciliary status. With no testimony from the Respondent in this case the burden has not been met. If this conclusion is factually incorrect the reluctant Respondent has only himself to blame.” (Emphasis added.) Appellant did not thereafter file an Answer to the Bill of Complaint and a Decree Pro Confesso was entered on December 31, 1974.

The Examiner-Master, after the taking of testimony ex parte, concluded that abandonment had ¹⁸⁵ been established 8 and recommended an award of alimony of $250 per week and the sum of $100 per week for maintenance and support of the minor daughter, Wendy. On February 20, 1975, Judge Raine signed a Decree awarding alimony and support in the amounts recommended, granting custody of the minor child to the wife and ordering that the property and assets of Dr. Bartell, located within the State of Maryland, would be liable for the payment of alimony and support and enjoining their removal or other disposition. 3 4 On this appeal, we are importuned by both sides to resolve the ultimate issue, viz., whether or not the trial court properly exercised personal jurisdiction over Dr. Bartell. Such jurisdiction did not attach unless appellant was a Maryland domiciliary at the time the suit was filed and at the date of service in Canada. See Code, Cts. & Jud.

Proc. Art. Sec. 6-102 (1974); Dackman v. Dackman, 252 Md. 331 , 250 A. 2d 60 (1969). For the reasons next stated, we do not decide that question. II Proof of Domicile and of Change of Domicile.

In his carefully constructed Memorandum, the Chancellor summarized as follows the evidence adduced at the evidentiary hearing on the question of Dr. BartelFs domicile: “The Complainant has established that the Respondent has an ownership interest in real estate and personal property in Maryland. The Respondent resided in the Maryland home in Baltimore County until June 1, 1974, and he gave that as his address and place of residence when he last filed required tax returns. The Respondent is a ¹⁸⁶ registered voter in Baltimore County, having last voted in the General Election in November, 1972. The Respondent has been registered with the State Board of Dental Examiners since 1955, and renewed the registration in 1973 for the year 1974.

The Respondent still holds a valid Maryland license to operate a motor vehicle. On June 1, 1974 the Respondent was the plaintiff in a tort suit that has subsequently been settled. The Respondent is obligated to the Equitable Trust Company, a Maryland bank, under a lease agreement for dental equipment, although presumably this equipment has been transferred to the purchaser of the Respondent’s practice. Personal property such as some clothing, some records and a coin collection remain in the home where the Respondent resided.” These facts were characterized by the Chancellor as “traditional indicia of domicile” which, he concluded, supported the wife’s claim that he was still legally domiciled in Maryland and shifted to the husband the burden of establishing a change in his domiciliary status.

Without necessarily entering the thicket of burden of proof and presumptions, 5 we think it correct to say that, in Maryland, where the issue of personal jurisdiction is contested, the party asserting such jurisdiction bears the burden of proving its elements by a preponderance of the evidence. Vitro Electronics v. Milgray Electronics, Inc., 255 Md. 498, 507 , 258 A. 2d 749 (1969). It is also well settled in Maryland that a person’s domicile remains the same until he acquires a new residence with an intention to remain there indefinitely and that the burden of proof rests on the party who claims that a change of domicile has taken place. Comptroller v. Lenderking, 268 Md. 613, 618 , 303 A. 2d 402 (1973), citing with approval 1 Restatement (Second) of Conflict of Laws, § 19, at 78 (1971); Staley v. Staley, 251 Md. 701, 705 , 248 A. 2d 655 (1968). ¹⁸⁷ In the instant case, therefore, Dr. Bartell must prove that his domicile changed from Maryland to Canada before the filing of suit on July 25, 1974.

Domicile is defined in Maryland as the “place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom. . . .” Shenton v. Abbott, 178 Md. 526 , 15 A. 2d 906 (1940). The most important component of this definition is “intent.” Bainum v. Kalen, 272 Md. 490, 497 , 325 A. 2d 392 (1974). While intent regarding domicile “may be more satisfactorily shown by what is done than by what is said,” Wagner v. Scurlock, 166 Md. 284, 292 , 170 A. 539 (1934), in this instance appellant has been so severely restricted by the court’s evidentiary rulings — particularly with respect to the use of a deposition — that his proof of intent is almost totally absent. We turn now to the question whether as Judge Raine stated, Dr. Bartell “has only himself to blame.” Ill Admissibility of Husband’s Deposition.

Maryland Rule 413 a 3 (2) prescribes the conditions for the use of a deposition made by an unavailable party or witness: “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 represented at the taking of the deposition or who had due notice thereof, if the court finds: (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.” (Emphasis added.) The issue presented here is, therefore, whether the Chancellor properly refused to accept appellant’s deposition on the grounds that he had “procured” his own absence. As already indicated, we conclude that this was error. This language of the Rule has not heretofore been ¹⁸⁸ construed in Maryland; and there is a paucity of other state cases involving interpretations of similar provisions. See Kono v. Auer, 458 P. 2d 661 (Haw., 1969); King v. International Harvester Co., 181 S.E.2d 656 (Va. 1971).

Decisions of federal courts are somewhat more numerous and offer helpful guidelines because of the similarity between Maryland and federal discovery rules. Snowhite v. State, Use of Tennant, 243 Md. 291, 308-309 , 221 A. 2d 342 (1966). The federal deposition rule provides, in pertinent part, that: “[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the Court finds . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing . . . unless it appears that the absence of the witness was procured by the party offering the deposition.” Fed.R.Civ.Pro. 32 (a) (3) (B). (Emphasis added.) In a leading federal case, the term “procured” was defined by Judge Chesnut, writing for the United States District Court for the District of Maryland, Weiss v. Weiner, 10 F.R.D. 387 (1950).

There the defendant in a breach of contract action had been a resident of Maryland for 2 years before the suit was filed but had been residing in Florida for many months prior to trial, and did not appear for trial. The plaintiff moved for a new trial alleging error in the admission into evidence, at the instance of defendant’s counsel, of the defendant’s deposition which had been taken in Baltimore long before the trial took place. Rule 26 d 3, the predecessor of the current rule quoted above, then governed, the language being identical. Rejecting plaintiff’s contention that the defendant had “procured” his own absence, Judge Chesnut stated at p. 389: “The word ‘procured’in this context would seem to imply that a party had