Naylor v. Naylor

Horney, J., delivered the opinion of the Court. Lawrence P. Naylor, III (the husband) and Frances-King Warfield Naylor (the wife) were married in Maryland in 1946, had five children, and lived together until shortly before the commencement of the litigation which is the subject of this appeal. The marriage became unharmonious and in the summer of 1956, the parties decided to separate and executed an agreement concerning their property rights, custody of the children,, and support payments. The agreement was expressly conditioned on the wife’s obtaining a divorce.

In a letter from-her attorney to the husband’s attorney on November 9, 1956, it appears that the husband was willing to finance a round-trip ticket for his wife to Reno, Nevada, and that the support payments would begin immediately upon her return. The wife flew to Reno with their infant son on November 11,. 1956, planning to return by Christmas when the Nevada six weeks residence requirement would have been met. She returned on Christmas Day, but without having filed a suit for divorce. She spoke to her husband briefly about the fact that she did not like the custody provisions of the separation agreement, and on the very same day she surreptitiously took the other four children and returned with them by plane to-Nevada.

The husband did not discover the taking of the children until the following day. Back in Nevada, the wife filed suit for divorce and custody of the children, alleging that she “now and has been for more than six weeks preceding the filing of the complaint herein, a bona fide resident of and. domiciled in the County of Washoe, State of Nevada, and has been physically and corporeally present in said State each and every day for said period of time * * She also alleged that the separation agreement with her husband was unfair, unjust, and had been entered into under duress. The husband was personally served with process in Baltimore on January 3, 1957, but he never appeared in the Nevada proceeding. ⁶²¹ In the meantime, the husband, who was upset by the removal of all of the children to Nevada, had spoken to several persons in Howard County where he and his wife had formerly lived together, and became convinced, as a result of those conversations, that his wife had committed adultery. Consequently, on January 2, 1957, the day before he was served with Nevada process, the husband filed suit in the Circuit Court for Howard County for a divorce a vinculo matrimonii and for the custody of the children.

The wife, who was personally served with Maryland process on January 11, 1957, in Nevada, was thereby warned to show cause why the divorce and custody decree should not be granted. On January 24, 1957, the Nevada court awarded the wife an absolute divorce and the custody of the five children, and on February 25, 1957, it passed a final decree. The court, in its “Findings of Facts,” declared (i) that the wife had been a bona fide domiciliary in Nevada for six weeks before the suit was filed and intended to make Nevada her “residence and domicile for an indefinite period of time,” (ii) that the 1956 property and custody agreement was invalid, and (iii) that the husband had had ample opportunity to defend the Nevada action but instead merely appointed investigators. On February 23, 1957, the wife filed a “Motion for Special Appearance” in the husband’s suit “for the purpose of attacking the jurisdiction of the Maryland court * * The motion alleged that the wife and the five children were bona fide domiciled in Nevada.

A hearing on the jurisdictional question was held on March 20, 1957. The wife’s counsel steadfastly maintained that his appearance for her was only “for the purpose of this motion.” The husband testified that his wife’s sole purpose in going to Nevada was to procure a divorce. A copy of the letter of November 9, 1956, with respect to the round-trip ticket to Reno and the commencement of the support payments after the wife’s return, was produced. Venita P. Herman, the wife of a detective, testified that she had stayed for five days in the same tourist ranch in which the wife and children were living.

The wife’s cabin had four rooms, but no kitchen, and since the children were not permitted to eat in the main dining room, they had to eat with ⁶²² the servants away from their mother. There was also testimony that the children were not going to school and that one of them expected to return to Maryland to live. A bodyguard also lived in the same cabin with the wife to prevent service of process. There was also some evidence of a telephone conversation, the gist of which was that the mother and sister of the wife planned to pick up the wife and children and return with them to Maryland.

At the hearing on the merits, the paramour of the wife, Rigan McKinney, testified that it was the intention of the wife to remain in Nevada, and that it was his intention to remain in Howard County. But shortly thereafter he joined her in Nevada, married her, and is residing there with her. On April 18, 1957, the chancellor overruled the wife’s “Motion and Special Appearance” and ordered her to file an answer to her husband’s bill for divorce within twenty days. The chancellor based his action on the fact that the evidence demonstrated the wife’s lack of á bona fide domicile in Nevada.

The chancellor was also of the opinion that since Maryland Rule 124 c “abolished” special appearances, the wife was before the court generally. At this point the wife employed new counsel, who promptly requested, and were granted, on May 8, 1957, an extension of time in which to file an answer, and then reiterated that they were appearing only specially. On May 14, 1957, counsel filed a special appearance for the purpose of appealing the order of April 18, and on the same day entered an appeal to this Court. By a divided court, we dismissed the appeal as premature and declined to rule on the validity of the chancellor’s construction of Rule 124 c.

See Naylor v. Naylor, Md., 133 A. 2d 74 (1957). 1 On the return of the mandate, the chancellor again passed an order, on July 2, 1957, requiring the wife to answer. -Her counsel, in another effort to prevent the chancellor from exercising in personam jurisdiction- over the wife, again “appearing specially for the sole purpose of contesting the jurisdiction,” filed in this Court a motion for a writ of prohibition ⁶²³ directed to the lower court. This motion was denied on July 24, 1957. The husband obtained a decree pro confesso against the wife on July 24, 1957, and on August 1, a hearing on the merits was held. In order to avoid any action that might be construed as a general appearance, counsel for the wife neither filed pleadings to the merits nor appeared at the hearing.

The husband produced evidence of his wife’s adultery and of his fitness for the custody of the children. The chancellor held the case sub curia until December 2, 1957, when he stated that the testimony “would justify the granting of a divorce a vinculo matrimonii to the husband and an award of the custody and guardianship of the children to him,” but, despite his previous decision on the question of jurisdiction, he found as a fact that the domicile of the wife in Nevada was bona fide and that Maryland was compelled to give full faith and credit to the Nevada decree. “Reluctantly,” he dismissed the bill of complaint, from which action the husband appealed to this Court. The wife’s counsel then filed a “Motion to Correct Opinion of Court”—again “appearing specially for the purpose of this motion only, and not generally”—in order to clarify the circumstances of the chancellor’s order of May 8, 1957, which had extended “without prejudice” the wife’s time to answer. This motion was denied on December 23, 1957, with the accompanying remark that the words “without prejudice” in the order meant what they said.

On the question of a divorce a vinculo matrimonii, it is well settled that the validity of the decree of a sister state may be impeached by proving that the court granting the decree lacked jurisdiction because the spouse who obtained the divorce had never acquired a bona fide domicile in the divorce-granting state. See Brewster v. Brewster, 207 Md. 193, 199 , 114 A. 2d 53 (1955), and cases therein cited. Usually the colorable nature of the claim of domicile is revealed by an immediate return to the state of original domicile as soon as the decree is signed. In the instant case, however, contrary to the customary procedure, the wife has remained in Nevada for over two years.

The argument, therefore, is that her ⁶²⁴ lengthened stay in Nevada is sufficient indication of an intention to make that state her permanent domicile. If, however, her ultimate intention is to return to Maryland, the two-year stay may have been only a temporary sojourn, falling short of a bona fide domicile in Nevada. This is so because the extended stay in Nevada is only one factor to he considered in determining the real intention of the wife in this case. There are other important factors.

An examination of the relatively few cases in recent years which have sustained the bona fide character of the domicile in another state reveals that one or all of several other factors were present, such as: (i) residence in the divorce-granting state for a substantial period before the divorce action was instituted; (ii) the removal of all or substantially all of one’s personal property to the new residence; (iii) the severance of all or most of one’s connections in the state departed from; (iv) the engagement in permanent business activities or gainful employment; and (v) the purchase or renting of a permanent home or other substantial place of abode. 2 None of the factors herein referred to, except a prolonged stay in Nevada, is present in the case now before us. The wife was staying in a tourist ranch; she had not sent the ⁶²⁵ children to school; she had not bothered to wind up her personal affairs in Maryland; one of the children fully expected to return to this State to live; and her mother and sister had planned to pick her and the children up and bring them back to Maryland. In short, the wife did few of the many things she would certainly have done had she really contemplated removing from this State to Nevada and residing there permanently. We think it is clear that what she did was not sufficient to show that her continued stay in Nevada was permanent in nature.

See Colby v. Colby, 217 Md. 35 , 141 A. 2d 506 (1958). Furthermore, there is no evidence that the paramour, to whom the wife is now married, had any previous connection with Nevada or has any present intention of remaining there permanently. As stated, the chancellor first decided that the wife lacked a bona fide domicile in Nevada, but after hearing the case on its merits, and holding it sub curia for a substantial period of time, he changed his mind, and concluded that the domicile of the wife in Nevada was bona fide. In so doing, he cited Vanderbilt v. Vanderbilt, 354 U. S. 416 , decided June 24, 1957.

However, the Supreme Court in that case merely decided that the valid Nevada decree of the husband did not extinguish the right of the wife to obtain a support decree in New York. It had no relevance to the issue in the instant case. On the question of the custody of the children, the courts and law writers are by no means in accord. The Nevada court granted custody of the five children to the mother.

Presumably, the children also still reside in Nevada with the mother, as they did at the time of the passage of the order appealed from in this case. Since both parents are domiciled in Maryland, and since there is no evidence that any of the children have a domicile other than that of their parents, the ■children are still domiciled in this State. This situation poses several controversial questions: (i) Did Nevada have jurisdiction to grant custody to the mother? (ii) If so, does Maryland have to give full faith and credit to the Nevada custody decree?

(iii) If not, does Maryland have jurisdiction to determine the custody of the children? and (iv) If ⁶²⁶ Maryland does have jurisdiction, would it be appropriate to exercise that jurisdiction? The traditional rule is that domicile is sufficient to give jurisdiction to the awarding court in a custody case. In 2 Beale, Conflict of Laws, § 144.3 (1935), Professor Beale states: “* * * [Jurisdiction to give a child to one parent or the other depends in principle on the domicil of the child; and a state which is the temporary residence of the child, not the domicil, cannot confer the right to custody.” See also Beale, “The Status of the Child and the Conflict of Laws,” 1 Chi. L. Rev. 13 (1933).

In “Custody of Children in Divorce Suits,” 7 Corn. L. Q. 1 (1921), Professor, now Judge, Goodrich, had this to say: “It would seem, though it is not an open and shút proposition, that the award of the custody of children in a divorce suit is an adjudication affecting status and so properly made only where the child is domiciled. * * * That the basis of an effective custody decree is domicile seems fairly well established by authorities. Thus, it has been held that the decree should not be made when the domicile is elsewhere. Decrees for custody of children made when the children’s domicile was not in the state when the decree was rendered have been denied recognition.

Where the child is domiciled in the state where the cause is pending, the jurisdiction of the court is not defeated because the children are not in court, whether their removal was to frustrate the effect of a decree or any other purpose.” Subsequently Professor Goodrich stated flatly that: “Jurisdiction to award custody of children in a divorce action is in the courts at the domicile of the children.” Conflict of Laws, Sec. 136 (3d ed.). Another leading law writer contends that in the United States “jurisdiction to determine the custody of children is primarily located at the domicil of the child.” ⁶²⁷ 1 Rabel, Conflict of Laws 532 (1945). The Restatement, Conflict of Laws, Sec. 117 (1934), also states: “[A] state can exercise through its courts jurisdiction to determine the custody of children * * * only if the domicil of the person placed under custody * * * is within the state.” The conventional approach to the jurisdictional problem has been to classify the custodial relationship between parent and child as one of status, and to apply standard status rules. For instance, in a divorce proceeding, a jurisdiction in which but one spouse is domiciled has power to terminate the marital status because such power is needed for the protection of the legitimate interest of that state in the welfare of its citizens.

Similarly, it is reasoned that a state should be able to control the custody of