Keen v. Keen

³⁴ Marbury, C. J., delivered the opinon of the Court. On April 17,1946 the appellee filed her Dill of complaint in the Circuit Court for Wicomico County against her husband, the appellant, asking for a divorce a mensa on the ground of desertion, the guardianship of a minor son who was then 20 years of age, permanent alimony and alimony pendente lite and counsel fee. It is alleged in the bill that her husband was formerly a resident of Wicomico County, but was now believed to be outside of the jurisdiction of the court, and an order of publication was asked for. Such an order was signed and published, the docket entries show that an affidavit, in accordance with Rule 10A of this Court, was filed, and the Court, on August 3, 1946, passed a decree pro confesso.

On August 8th a hearing was held in open court, and on September 30th a decree was filed divorcing the appellee from the appellant, and ordering him to pay her the sum of $500 a month as alimony pendente lite from the date of the filing of the bill, and permanent alimony of $500 per month subject to the further order of the court, and $1,000 counsel fee for the services rendered the appellee by her counsel. The appellant was also ordered to pay the costs. During this period no counsel had filed his appearance for appellant, although it appears that he was represented by Mr. Seth P. Taylor, a member of the Wicomico County Bar, in negotiations and discussions about various matters in connection with the case. On November 27, 1946, Mr. Taylor entered what he called a special appearance for the defendant, and on the same day entered an order for an appeal to this Court.

On January 29, 1947, he filed an order dismissing the appeal. On May 9, 1947, a petition was filed by the appellee requesting a citation for contempt, and a copy of this petition, with an order of court thereon, was served the same day on Mr. Taylor. On June 6, 1947, the appellant, through Mr. Taylor and another counsel, filed a petition in the case, reciting some of the allegations of the bill, stating they were untrue, calling attention to the fact ³⁵ that the case had never been heard on its merits, alleging that the petitioner was taken by surprise, that he was a legal and bona fide resident of Nevada, and had there been granted an absolute divorce from appellee on September 17, 1948, that the appellee knew of the proceedings in Nevada according to her testimony, that the proceedings in Wicomico County were a fraud on the court, and asking that the petitioner be allowed to file an answer to the bill of complaint, to have the witnesses who testified for the plaintiff, including the plaintiff herself, recalled, and cross-examined, that petitioner be permitted to produce witnesses on his own behalf and to have such further proceedings as might be proper. This petition was sworn to by the appellant on the 29th day of May, 1947, before a notary public in Worcester County.

On this petition an order to show cause was passed on June 10th, and served on the appellee’s counsel. On June 24th she answered, stating that she did not want to prevent the appellant from offering any defense he deemed appropriate and advisable, but suggested to the court that he should not be permitted to offer any such defense until alimony and costs, including counsel fee, had been paid by him. On August 28th, appellee asked that the matter of the petition of the appellant and her answer be set for hearing, and the date for such hearing was accordingly fixed for September 5, 1947. On August 29, 1947, the appellant filed a motion to strike out the decree because there was no service of process upon him and he did not voluntarily appear, the court had no jurisdiction over him at the time of entering the decree, and he was a non-resident at the time of the decree, beyond the jurisdiction of the court, and because of the reasons contained in his petition previously filed.

This motion was heard in open court on September 5th, and on November 6th an order was passed overruling the motion. On November 19th an order for this appeal, which was from this order, was filed. As the motion of August 29th referred to the petition of June 10th and as this petition had been set for hearing on September 5th, when the motion was ³⁶ heard, it may be reasonably concluded that the order of the court, refusing to strike out the decree, was, in effect, a denial of the petition of the appellant, as well as of his motion, although the order refers only to the motion. The contention of the appellant is that the chancellor had no jurisdiction over him in personam, and, therefore, could not order him to pay alimony and counsel fees.

The chancellor based his ruling on Section 16 of Article 16 of the Code. This section was enacted by Chapter 324 of the Acts of 1908. Although it has been part of the statute law of the State for 40 years, neither its construction nor its validity appear to have been before this Court. It reads as follows: “In any decree for divorce against a non-resident, where alimony is prayed in the bill of complaint, and the same sets forth that the nonresident defendant is possessed of property in the State, the court shall have full authority to award alimony, and any property in the State of any person against whom alimony may be so awarded shall be liable for the same and subject to such decree as the court may pass in the premises.

Any order of the court awarding alimony pendente lite shall have the same force and effect as in decree for divorce.” It is, of course, the settled law of this State that a court is without authority to enter a decree in personam against a defendant, where personal service is not had upon him, and where he does not voluntarily appear. Garner v. Garner, 56 Md. 127 ; McSherry v. MeSherry, 113 Md. 395 , 77 A. 653 , 140 Am. St. Rep. 428 ; Ortman v. Coane, 181 Md. 596 at page 600, 31 A. 2d 320, 145 , A. L. R. 1388. Appellant contends that Section 16 of Article 16 must be interpreted in harmony with the requirements of Article 23 of the Declaration of Rights, and the 14th Amendment of the Federal Constitution, or otherwise it is invalid.

The construction which, he claims, is necessary to give validity to the statute is that in order to give the court authority to subject any property of a non-resident in the State to the payment of alimony, such property must, in some manner by levy, attachment, injunction, sequestration or otherwise, be ³⁷ made the basis of a jurisdiction in rem over it at the inception of the action. In support of this position he cites as authority Pennoyer v. Neff, 95 U. S. 714 , 24 L. Ed. 565 ; Pennington v. Fourth National Bank, 243 U. S. 269 , 37 S. Ct. 282 , 61 L. Ed. 713 , L. R. A. 1917F, 1159; Restatement, Conflict of Laws, Section 106, page 163, comment (e) ; Matthews v. Matthews, 247 N. Y. 32 , 159 N. E. 713 ; Geary v. Geary, 272 N. Y. 390 , 6 N. E. 2d 67 , 108 A. L. R. 1293; Hicks v. Hicks, 193 Ga. 446 , 18 S. E. 2d 754 ; Bray v. Landergren, 161 Va. 699 , 172 S. E. 252 ; Rhoades v. Rhoades, 78 Neb. 495 , 111 N. W. 122 ; Parker v. Parker, Ohio App., 56 N. E. 2d 527 ; Schneider v. Schneider, 312 Ill. App. 59 , 37 N. E. 2d 911 ; Reed v. Reed, 121 Ohio St. 188, 167 N. E. 684 , 64 A. L. R. 1384; Forrester v. Forrester, 155 Ga. 722 , 118 S. E. 373 , 29 A. L. R. 1363; and Holmes v. Holmes, D. C., 283 F. 453 . The bill of complaint states that the appellant and the appellee are the owners as tenants by the entireties of real estate in Salisbury, Wicomico County, most of which is encumbered by mortgage, and are the joint owners of War Savings Bonds, that the appellee owns no property in her individual name, but the appellant does have such property rights in various securities and that the appellant was employed as a salesman, receiving in salaries and commissions $22,000 yearly.

The allegation as to-the personal property is not an allegation of property in teh State. These is po allegation, that appellant’s employer had any funds in this State belonging to him at the time of the filing of the bill of complaint. Therefore, the only property in the State the bill alleges the appellant has is the real estate he owns with appellee as tenant by the entirety. Such property cannot be levied upon or attached for the debts of either the husband or the wife, and neither of them can dispose of it without the joinder of the other.

Where a decree of absolute divorce is granted, then such property is held by husband and wife as tenants in common. In this case, however, the bill of complaint asks for a divorce a mensa which, if granted, would not affect the title to the prop ³⁸ erty held by the parties as tenants by the entireties. It would have been possible, however, for the court to grant a receivership over such property during the pendency of proceedings for the purpose of collecting the rents and income and eventually applying such proceeds to the support of the wife. (Rhoades v. Rhoades, supra).

Therefore we have before us for determination the question whether Section 16 of Article 16 authorizes the entry of such a decree in personam as was filed against the defendant for alimony and counsel fees, not specifically restricted to collection from property within the State already under the jurisdiction of the court. In the case of Pennoyer v. Neff, supra, decided 70 years ago in 1878, the Supreme Court had before it an Oregon statute where a money judgment was rendered against a non-resident who was not personally served with process within the State and who did not appear, service being had upon him by publication. Execution was issued on the judgment, and certain property was sold. This property was not attached or in any way brought within the jurisdiction of the court, and its first connection