Lohman v. Lohman

KARWACKI, Judge. We issued a writ of certiorari to determine whether a circuit court has jurisdiction to adjudicate issues involving marital property and alimony sought by a nonresident spouse more than 90 days after granting the other spouse, a Maryland resident, an absolute divorce based upon service of process by publication. I. Petitioner, Alfred Millman Lohman, Jr., and respondent, Melva Lee Lohman, were married May 7, 1954, in Washing ¹¹⁶ ton, D.C. Three children were born of the marriage, and at the time of the proceedings below, each was a fully emancipated adult. In April 1987, the parties agreed to separate, but continued to reside in the same marital home, albeit in different bedrooms, which was located at 8501 Oldham Drive in Upper Marlboro.

On June 20, 1989, Ms. Lohman filed in the Circuit Court for Prince George’s County a Complaint for Absolute Divorce and for Other Relief along with a Petition for Ex Parte Injunction. The petition stated: “1. That [Ms. Lohman] filed her Complaint for Absolute Divorce and For Other Relief---- Service of process has not been had upon [Mr. Lohman] as of the filing of this Petition. “2. That [Mr. Lohman] has embarked on a course of action of harassment of [Ms. Lohman].

He has advised [Ms. Lohman], as well as the adult children of the parties that it is his intention to remain in the home and continually harass her, and he is going to strip the household of all of her belongings while she is away on vacation, and that she will never see them again. “3. That [Ms. Lohman] will be leaving on vacation ... and ... it would be in the interests of justice for the Court to issue an immediate Ex Parte Injunction, ordering and directing [Mr. Lohman] to stay away from the family home, to cease his course of action of harassing and tormenting [Ms. Lohman], and to not remove or dispose of any household goods, furniture or furnishings, or any other items of personal property from the family home.” An ex parte injunction was granted the same day, and it ordered Mr. Lohman “to cease his course of action of harassing and tormenting [Ms. Lohman], and to not remove or dispose of any household good [sic], furniture and furnishings from the family home, pending a hearing in these proceed ¹¹⁷ ings.” 1 A copy of that injunction was served on Mr. Lohman by Ms. Lohman’s attorney on June 22, 1989. Mr. Lohman was not served at that time with a copy of either the Petition for Ex Parte Injunction or the Complaint for Absolute Divorce. Process was not issued on the Complaint for Absolute Divorce until June 28, 1989, and Mr. Lohman was never personally served with a copy of the complaint.

Upon being served with the ex parte injunction, Mr. Lohman left the marital home and failed to notify his family, friends or Ms. Lohman of his whereabouts. Unable to effect service of the complaint on Mr. Lohman, Ms. Lohman asked the circuit court for leave to proceed by publication. In her affidavit in support of that motion, Ms. Lohman set forth her attempts to locate and serve Mr. Lohman. She stated that she believed Mr. Lohman, who had retired from the U.S. Postal Service in 1988, had gone to live with his sister in Alamosa, Colorado, but that the attempted service by certified mail to his sister’s address with restricted delivery to Mr. Lohman was returned and marked “unclaimed.” She stated that telephone directories and the motor vehicle administrations in Maryland, Virginia and the District of Columbia provided no assistance in locating Mr. Lohman.

The affidavit also related that Ms. Lohman had contacted her husband’s cousin to ascertain his whereabouts but that his cousin was unaware of where Mr. Lohman was residing. She also stated that, despite speaking by telephone with his adult children during the Christmas holidays of 1989, Mr. Lohman refused to disclose his whereabouts to them. 2 On the basis of her affidavit, Ms. Lohman’s Motion to Proceed by Order of Publication was granted by the circuit ¹¹⁸ court on February 2, 1990. 3 In early March, an order of publication, reciting the substance of the complaint and the relief sought by Ms. Lohman, was duly published in a local newspaper published in Prince George’s County in each of three consecutive weeks. A copy of the order of publication was also mailed to Mr. Lohman at the address of the former marital home of the parties. Not surprisingly, no answer to the complaint was ever filed and Ms. Lohman moved for an Order of Default, which was granted on June 27, 1990.

A Judgment of Absolute Divorce was entered on September 18, 1990. Although in her complaint Ms. Lohman requested alimony, attorney’s fees, and a monetary award reduced to judgment, the Judgment of Absolute Divorce did not address any of these issues. On June 27,1991, Mr. Lohman filed in the Circuit Court for Prince George’s County a pleading entitled Petition to Adjudicate Marital Property of the Parties. In that pleading, he gave his address as P.O. Box 542, Lake Como, Florida.

The petition alleged that the parties had acquired substantial marital property during their thirty-five years of marriage, including the marital home, several motor vehicles, various retirement benefits and bank accounts. The petition requested the court to adjudicate the marital property and grant to Mr. Lohman both a monetary award and an award of alimony. Ms. Lohman filed a Motion to Dismiss the petition. Following oral argument on November 18, 1991, the circuit court granted Ms. Lohman’s motion with prejudice.

In an oral opinion, the circuit court reasoned that, although in personam jurisdiction was never acquired over Mr. Lohman, the marital relationship was effectively severed by the court with only in rem or quasi in rem jurisdiction. The circuit ¹¹⁹ court ruled that Mr. Lohman’s right to claim alimony was extinguished at the time of the severance of the marital relationship. The circuit court also reasoned that in accordance with Maryland Code (1991 Repl.Vol.), § 8-203(a) of the Family Law Article, Mr. Lohman’s right to a determination of marital property and a monetary award was extinguished upon the granting of the absolute divorce, since the court did not expressly reserve the authority to make that determination within ninety days of the divorce decree. Mr. Lohman filed an appeal from that judgment to the Court of Special Appeals.

II

Using the same rationale as the circuit court, the Court of Special Appeals affirmed the circuit court. Lohman v. Lohman, 93 Md.App. 588 , 613 A.2d 1015 (1992). In discussing service of process and jurisdiction over the defendant, Mr. Lohman, the intermediate appellate court stated: “In the Petition for Ex Parte Injunction there is a representation that the appellee filed a complaint for absolute divorce, which contained prayers for other relief and for a rule to show cause. Although appellant was never personally served with the complaint, he was on notice of some pending action when he received the Ex Parte Injunction.

He failed to take any action to determine the bases for the injunction. Had he reviewed the court records, which included the injunction, it would have been crystal clear to him that a petition for absolute divorce had been filed. Instead of acting in a responsible way, he absconded from the State in an effort to avoid service. Specifically, appellant left the State, ‘went who knows where[,]’ and did not contact appellee after leaving. “In light of appellant’s disappearance, the order of publication was proper service of process according to Maryland Rules 2-121 and 2-122.... “Appellee filed an affidavit indicating that appellant absconded from the State, and that service of process was ¹²⁰ attempted but was returned and marked ‘unclaimed.’ Appellee then effected service by mailing a copy of the Order of Publication to the appellant at his last known address, and posting a copy of the order on the courthouse door.

Thus, appellee complied with Maryland Rules 2-121 and 2-122, and appellant received fair notice of the impending hearing.” 93 Md.App. at 592-93 , 613 A.2d at 1017-18 (citations omitted). Finding service of process to have been properly effected, and consequently finding the circuit court to have acquired jurisdiction over Mr. Lohman, the intermediate appellate court went on to conclude that Mr. Lohman’s right to claim alimony had been extinguished. The intermediate appellate- court stated: “It is a long standing rule in Maryland that once a divorce is granted and becomes final, the right to award alimony terminates. Wilson v. Wilson, 87 Md.App. 547, 552-53 , 590 A.2d 579 (1991) (quoting Altman v. Altman, 282 Md. 483, 490-92 , 386 A.2d 766 (1978); Upham v. Upham, 238 Md. 261, 265 , 208 A.2d 611 (1965)).

This rule is codified in § 11-101(a) of the Maryland Annotated Code Family Law Article, which states: (a) Where available.—The court may award alimony: (1) on a bill of complaint for alimony; or (2) as part of a decree that grants: (i) an annulment; (ii) a limited divorce; or (iii) an absolute divorce.” 93 Md.App. at 591 , 613 A.2d at 1017 . The intermediate appellate court then distinguished two decisions of this Court, Altman v. Altman, 282 Md. 483 , 386 A.2d 766 (1978) and Dackman v. Dackman, 252 Md. 331 , 250 A.2d 60 (1969), overruled on other grounds by Eastgate Assocs. v. Apper, 276 Md. 698 , 350 A.2d 661 (1976), which permitted a claimant to recover alimony following the awarding of a foreign divorce ¹²¹ decree to her former spouse by a forum lacking personal jurisdiction over the claimant. 4 In Altman , a wife instituted a suit in the circuit court for a divorce a mensa et thoro and alimony. Following the initiation of the wife’s suit, the husband went to Nevada and obtained a valid decree for absolute divorce. The Nevada decree made no provision for alimony or support.

Although the wife received notice of the Nevada suit, she was not subject to the jurisdiction of the Nevada court, as she did not appear generally or specially in the Nevada proceedings, nor was she ever personally served with the complaint in the State of Nevada. Subsequent to the Nevada decree, the circuit court acknowledged the validity of the Nevada divorce decree, but awarded the wife permanent alimony. We upheld the right of the wife to seek alimony following the termination of the marital status by an out-of-state ex parte divorce decree. ¹²² Dackman was factually similar in many respects to Altman except that, unlike the husband in Altman who was subject to the jurisdiction of the circuit court because he had been served with process within the state, the husband in Dackman , a Nevada domiciliary, was not subject to the jurisdiction of the circuit court because he had not been served in Maryland nor had he entered a general appearance in circuit court. 5 In Dackman , although we determined that the circuit court lacked the power to issue an in personam decree ordering the husband to pay alimony, we concluded that the presence in Maryland of property belonging to the husband, coupled with other factors connecting the controversy with this state, warranted the exercise of quasi in rem jurisdiction over the husband. We held that the wife could attach her husband’s property in this state and satisfy any award of alimony only to the extent of his property within the forum. 6 ¹²³ In distinguishing Altman and Dackman , the intermediate appellate court stated: “The rationale behind this exception is that there is no justification in permitting a foreign court’s divorce decree to endanger a claimant’s material well-being by terminating the support rights of the claimant without considering the claimant’s scope of need.

The Altman court stated that such an exception is based upon ‘Maryland’s predominant interest in safeguarding the economic security of its domiciliaries who suffer loss of financial support at the hands of an itinerant spouse’. “In the case sub judice, Maryland’s predominant interest requires this court to abide by the long standing rule as opposed to the [Altman ] exception. The case before us is distinguished from [Altman ] and its progeny, because there is no foreign divorce, but rather a Maryland divorce granted to a resident of Maryland against an absconding spouse who clearly attempted to evade process.” 93 Md.App. at 591-92 , 613 A.2d at 1017 (citations omitted). The Court of Special Appeals concluded that “[t]he record does not indicate that [Mr. Lohman] was a resident of any other state, therefore, jurisdiction was properly obtained and the absolute divorce was not an ex parte judgment, but a default judgment in accordance with Maryland Rule 2-613. Under these facts, the divorce became final upon judgment and [Mr. Lohman] is not entitled to have the alimony issue considered by the court.” 93 Md.App. at 594 , 613 A.2d at 1018 (citations omitted).

The intermediate appellate court used similar reasoning in upholding Md.Code (1991 Repl.Vol.), § 8-203(a) of the Family Law Article as a statutory bar to adjudication of the marital property issues. Section 8-203(a) provides: ¹²⁴ “(a) Time of court action.—In a proceeding for an annulment or an absolute divorce, if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property: (1) when the court grants an annulment or an absolute divorce; (2) within 90 days after the court grants an annulment or divorce, if the court expressly reserves in the annulment or divorce decree the power to make the determination; or (3) after the 90-day period if: (i) the court expressly reserves in the annulment or divorce decree the power to. make the determination; (ii) during the 90-day period, the court extends the time for making the determination; and (in) the parties consent to the extension.” Reasoning that Mr. Lohman failed to comply with the mandatory time-frames of § 8-203(a), the Court of Special Appeals concluded that the circuit court did not have jurisdiction to make a monetary award. Thus, the Court of Special Appeals held that Mr. Lohman’s Petition to Adjudicate Marital Property was properly dismissed by the circuit court. For reasons grounded on lack of subject matter jurisdiction, the circuit court and the Court of Special Appeals determined that Mr. Lohman’s claims for alimony and a monetary award were extinguished.

As we shall explain, the Circuit Court for Prince George’s County never acquired in personam jurisdiction over Mr. Lohman. Consequently, the judgment of Absolute Divorce entered on September 18, 1990, could not terminate Mr. Lohman’s rights to any alimony or a monetary award to which he is possibly entitled. Accordingly, we shall reverse. 7 ¹²⁵ III. A. It is fundamental that before a court may impose upon a defendant a personal liability or obligation in favor of the plaintiff or may extinguish a personal right of the defendant it must have first obtained jurisdiction over the person of the defendant.

Altman, 282 Md. at 486 , 386 A.2d at 768 ; Glading v. Furman, 282 Md. 200, 202 , 383 A.2d 398, 400 (1978); McSherry v. McSherry, 113 Md. 395, 400 , 77 A. 653, 655 (1910). Moreover, it is well settled that in order to extinguish a spouse’s right to alimony or support a court must have obtained jurisdiction over that spouse. Vanderbilt v. Vanderbilt, 354 U.S. 416, 418-19 , 77 S.Ct. 1360, 1362-63 , 1 ¹²⁶ L.Ed.2d 1456, 1459 (1957); Estin v. Estin, 834 U.S. 541 , 548-49, 68 S.Ct. 1213, 1218 , 92 L.Ed. 1561, 1568-69 (1948); Robert C. Casad, Jurisdiction in Civil Actions § 9.02[4] (1991); Homer H. Clark, The Law of Domestic Relations in the United States § 12.4 (1988). In Vanderbilt, although deciding the case based on its interpretation of the Full Faith and Credit Clause, the Supreme Court was presented with a factual scenario similar to that which was presented to this Court in Altman and commented on the ability of a divorce decree to extinguish the support rights of a spouse not subject to the jurisdiction of the divorce court.

The Supreme Court stated that “the Nevada divorce court was as powerless to cut off the wife’s support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court’s jurisdiction.” 354 U.S. at 418-19 , 77 S.Ct. at 1362-63 , 1 L.Ed.2d. at 1459. We stated in Altman that “[i]t is virtually axiomatic that a decree for alimony operates as an in personam judgment and thus is not binding on the person against whom it is passed unless the court has acquired jurisdiction over him. McSherry v. McSherry, 113 Md. [395, 400 (1910) ]; see Keen v. Keen, 191 Md. 31, 36 , 60 A.2d 200 (1948); Woodcock v. Woodcock, 169 Md. 40, 46-47 , 179 A. 826 (1935).” 282 Md. at 487-88, 386 A.2d at 769 . We also recognized in Altman that a judgment extinguishing a spouse’s right to claim alimony is an in personam judgment and is similarly not binding against the spouse seeking alimony unless the court had acquired jurisdiction over the person of the claimant spouse.

In addition, in Wallace v. Wallace, 290 Md. 265 , 429 A.2d 232 (1981), we held that in a case “where a bona fide resident of another state was awarded a divorce on a ‘no fault’ ground by a court of that forum lacking personal jurisdiction over the other spouse, the latter spouse may utilize his or her entitlement to the same foreign decree as a basis for an award of alimony by courts in this State.” Id. at 285 , 429 A.2d at ¹²⁷ 243. 8 Consequently, it is irrefutable that in order to extinguish Mr. Lohman’s right to claim alimony the circuit court must have acquired in personam jurisdiction over him. Likewise, because of the nature of a monetary award, in order to extinguish a spouse’s right to claim a monetary award a court must acquire in personam, jurisdiction over the spouse. Discussing the nature of the monetary award in Herget v. Herget, 319 Md. 466 , 573 A.2d 798 (1990), Judge McAuliffe speaking for this Court stated: “The monetary award that the wife seeks is authorized by Maryland Code (1984, 1989 Cum.Supp.) Family Law Article § 8-201 et seq. The concept of a monetary award is relatively new in Maryland, having been first adopted in 1978.

Chapter 794, Laws of Maryland 1978. Its function is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title. With one exception, a divorce court in Maryland is not empowered to alter title to real or personal property held by the parties, or to directly divide or distribute that property in a way that is inconsistent with title. The court may, however, after giving con ¹²⁸ sideration to factors enumerated by the legislature, enter a monetary award against one party and in favor of the other when that action is appropriate to adjust an inequity that would otherwise result from distribution, strictly in accordance with title, of property qualifying as ‘martial property.’ To the extent a monetary award is immediately due and owing, the court may enter a judgment reflecting it, thereby subjecting the property of the indebted party to lien and execution.” 319 Md. at 470-71 , 573 A.2d at 800 (footnote omitted).

Judge McAuliffe commented thereafter that “[cjertainly, under a Fourteenth Amendment due process analysis, the right to a monetary award properly would be characterized as a ‘property interest.’ See generally, L. Tribe, American Constitutional Law, § 10-9 (2d. ed. 1988).” 319 Md. at 475 , 573 A.2d at 802 . For more detailed discussions of the Maryland marital property and monetary award scheme, see Pope v. Pope, 322 Md. 277 , 587 A.2d 481 (1991); Zandford v. Wiens, 314 Md. 102 , 549 A.2d 13 (1988); Niroo v. Niroo, 313 Md. 226 , 545 A.2d 35 (1988); Grant v. Zich, 300 Md. 256 , 477 A.2d 1163 (1984); Harper v. Harper, 294 Md. 54 , 448 A.2d 916 (1982); Deering v. Deering, 292 Md. 115 , 437 A.2d 883 (1981); John F. Fader, II & Richard J. Gilbert, Maryland Family Law Chapter 17 (1990, 1991 Supp.). In McAlear v. McAlear, 298 Md. 320 , 469 A.2d 1256 (1984), we refused to equate a monetary award to an award for alimony, which is exempt from the constitutional prohibition against imprisonment for debts, and held that a monetary award, unlike an award of alimony, could not be enforced by contempt. Nonetheless, we recognized the many common characteristics between an award of alimony and a monetary award. “We recognize, as contended by the wife, that there is an interrelationship between a monetary award ... and an award of alimony....

A monetary award, particularly one required to be paid in installments, resembles an award of alimony that requires periodic payments for a definite period of time. Moreover, in determining the amount of either a monetary award or alimony, equity courts are required to ¹²⁹ consider similar factors, such as the value of all property interests of the spouses, the contributions—monetary and nonmonetary—of the spouses, the economic circumstances of the spouses at the time of the award, the facts and circumstances that contributed to the estrangement of the spouses, and the duration of the marriage. Additionally, in determining the amount of a monetary award, equity courts must consider any award of alimony, while in determining the amount of alimony, equity courts must consider any monetary award. Moreover, a monetary award may be reduced to a judgment only to the extent that any part of the award is due and owing.

Finally, a monetary award may be granted when alimony is not granted.” 298 Md. at 347-48 , 469 A.2d at 1270 . As our prior characterizations of a monetary award suggest, the right to claim a monetary award is a personal right of a spouse, equivalent in nearly all respects, as the right of a spouse to claim an award of alimony. Therefore, as the General Assembly has recognized in § 8-212 with regard to foreign divorce decrees, see supra footnote 8, a circuit court cannot extinguish a spouse’s right to claim a monetary award unless it first obtains in personam jurisdiction over that spouse. This view is shared by courts in other jurisdictions having equitable distribution schemes, Cottone v. Cottone, 547 A.2d 625 (Del.Fam.Ct.1988); In re Marriage of Passiales, 144 Ill.App.3d 629 , 98 Ill.Dec. 419 , 494 N.E.2d 541 (1986); In re Marriage of Hudson, 434 N.E.2d 107 (Ind.Ct.App.1982), cert. denied, 459 U.S. 1202 , 103 S.Ct. 1187 , 75 L.Ed.2d 433 (1983); In re Marriage of Kimura, 471 N.W.2d 869 (Iowa 1991); Rutledge v. Rutledge, 26 Mass.

App.Ct. 537, 529 N.E.2d 1361 (1988); Edwards v. Edwards, 709 S.W.2d 165 (Mo.Ct.App.1986); In re Marriage of Breen, 560 S.W.2d 358 (Mo.Ct.App.1977); Smith v. Smith, 459 N.W.2d 785 (N.D.1990), including those jurisdictions that permit monetary awards, Squitieri v. Squitieri, 196 N.J.Super. 76 , 481 A.2d 585 (Ch.Div.1984); Carroll v. Carroll, 88 N.C.App. 453, 363 S.E.2d 872 (1988); Mock v. Mock, 11 Va.App. 616 , 400 S.E.2d 543 (1991). ¹³⁰ B. There