Madaio v. Madaio

McWilliams, J., delivered the opinion of the Court. The marriage of the parties in August 1942 resulted in the birth of two children. On 14 October 1963 Anthony filed in the Circuit Court for Montgomery County a “Bill of Complaint for Divorce A Vinculo Matrimonii” in which he charged that Josephine was guilty of “abandonment and desertion.” A hearing on the bill was held in June 1966. On 20 December 1966 Judge Shearin, acting pursuant to the recommendations of the Master-Examiner, signed a “decree” denying the divorce on the ground that Anthony “failed to corroborate his testimony.” In addition Judge Shearin “ordered” Anthony to support Josephine and the children with payments of $400 per month “commencing on December 1, 1966, pending further Order of Court.” Two years later, on 27 December 1968, Anthony obtained a divorce a vinculo in the Circuit Court of Arlington County, Virginia.

Josephine was not served personally in Virginia and she did not appear to contest the action. No provision was made in the decree for her support. On 28 January 1969 Anthony filed in the Circuit Court for Montgomery County a motion entitled “Motion to Vacate Decree Pendente Lite and Have Case Dismissed.” Actually the motion was “to declare the decree filed * * * [21 December 1966 but dated 20 December] ordering that the said plaintiff pay for the support and maintenance of the defendant and their minor child be vacated and dismissed.” A copy of this motion, according to Josephine, was not received by her attorney until 30 Jan ⁸² uary, the same day on which he filed the last of a series of motions (four in all) to have Anthony cited for contempt for being in arrears in the amount of $1,100. On the same day (30 January) Judge Shook, without a hearing, ordered “that the plaintiff’s motion be granted and the Decree Pendente Lite * * * vacated and the case dismissed.” (Emphasis added.) Josephine claims that she was not notified of Judge Shook’s order until 6 February.

On 13 February Josephine filed a motion “to strike” Judge Shook’s order of 30 January on the ground that she had not been afforded an opportunity to be heard. Anthony, in reply, filed on 19 February a “motion to strike * * * [Josephine’s] motion to strike court order.” He argued that “the Decree dated December 20, 1966, is in fact not a final decree and has no greater effect than that provided by its own terms.” On 25 February Judge Shook, without an opinion, denied Josephine’s motion and allowed the order of 30 January to stand. Josephine argues on this appeal that “[t]he granting of the Order dismissing the case without a show cause hearing or otherwise permitting opposition of response effectively denied the appellant the opportunity to present any argument regarding the validity of the Virginia Decree or its effect, if any,” on the award of support and maintenance in Maryland. 1 We agree. We are not impressed by Anthony’s argument that the order before us is “an order for dismissal * * * from which an appeal to this Court will [not] lie.” We think it is clear that Judge Shook’s order is one “to vacate” or set aside the decree of 20 December 1966.

The difference between the order in issue and one “to dismiss” the case ⁸³ is so obvious that further comment should not be necessary. We think also it is clear that the order of SO January is “in the nature of a final decree” from which an appeal may be taken to this Court. Code, Art. 5, § 6 (1968 Sepl. Vol.).

It is well settled that the courts of this state must give full faith and credit to a divorce decree rendered by a sister state if that state had in personam jurisdiction over the parties to the proceedings. E.g., Staley v. Staley, 251 Md. 701, 704-05 (1968). It is also settled that we may refuse full faith and credit to a foreign decree rendered in an ex parte proceeding, if the appearing spouse had not acquired a bona fide domicile in the state granting the divorce. Id.

Although we take no position in the case at bar as to whether the ex parte Virginia decree should be given full faith and credit, it is dear that the rules noted above provided a basis for Josephine, had she been given an