Pryor v. Pryor

Barnes, J., delivered the opinion of the Court. The appellant, Louvain Pryor (Wife No. 1) was married to Warwick N. Pryor (husband) on December 25, 1939. The husband filed a bill of complaint against Wife No. 1 in the Circuit Court of Baltimore City on April 15, 1946 in which he ²²⁶ alleged the marriage of the parties; that he had been a resident of Baltimore City for more than one year next preceding the filing of the bill of complaint; that Wife No. 1 was a nonresident of Maryland and the usual allegations of abandonment by Wife No. 1. He prayed for a divorce a vinculo matrimonii, other relief and for an order of publication to be served personally on Wife No. 1 at 545 West 141st Street, New York, N. Y. On June 25, 1946, a certificate, duly verified, of Hamilcar B. Hannibal, as the server of process, was filed in the divorce suit indicating that Mr. Hannibal had received the order of publication in the suit and on April 20, 1946, took the order of publication to 545 West 141st Street, New York City, N. Y. where the defendant (Wife No. 1) resided and after informing her of the nature and object of the action, left the order of publication with the defendant and that “he did then and there make personal service on the defendant.” Wife No. 1 not having answered, a decree pro confesso was entered on June 3, 1946 and the suit was referred to one of the Examiners to take testimony to support the allegations of the bill of complaint.

Testimony was taken before an Examiner on June 25, 1946 and filed on July 3, 1946. The husband testified that he resided at 1104 Russell Street, Baltimore and was employed as a freight checker. He also testified that he was “a resident of Baltimore City and State of Maryland” and had been “for more than one year prior to the filing of this Bill.” The husband’s testimony was corroborated by Atlas E. Bar-bee, Jr. (Barbee) who testified that he resided at 1104 Russell Street, Baltimore and that he was employed in the Baggage Department of the Pennsylvania Railroad Company. He further testified that the husband was a resident of Baltimore City and of the State of Maryland and that the husband had “been for more than one year prior to the filing of this suit.” A final decree was passed by the Circuit Court on July 16, 1946 as recommended by the report of the Master, divorcing the husband from Wife No. 1 a vinculo matrimonii and requiring the husband to pay the costs.

The husband one week after the signing and filing of the final decree married Sylvia Pryor (Wife No. 2) on July 23, 1946 in Baltimore, Maryland. ²²⁷ In February 1959, the husband was killed while employed by the New York Central Railroad Company allegedly as a result of the negligence of his employer and the United States of America. As the husband had been employed in interstate commerce, his widow is entitled to bring an action under the Federal Employees Liability Act against his employer and, as a result of his allegedly wrongful death, also is entitled to bring an action under the Federal Tort Claims Act and the New York wrongful death statute. Almost 13 years after the divorce decree was signed and filed, Wife No. 1 filed a petition on July 9, 1959 in the Circuit Court to strike out the divorce decree. She alleged inter alia that she was not served with the process as certified in the proceedings, that neither the husband nor Wife No. 1 had ever been residents of Maryland, the husband during the year prior to filing the bill of complaint was a resident of New York City, employed by the Pennsylvania Railroad Company in the freight yards there and that he never resided at 1104 Russell Street, Baltimore, Maryland.

She also alleged that Barbee was likewise a resident of New York City, was never a Maryland resident and was still residing in New York City. She set forth in her petition that these facts constitute a fraud on the court, and the decree is a mistake based upon false testimony and fraud, and for these reasons, should be stricken out. She prayed that the divorce decree be stricken out. She offered testimony tending to establish the allegations of her petition.

Judge Cardin, after hearing argument and considering the case filed a carefully considered opinion reviewing the facts and the applicable law. Judge Cardin found as a fact that Wife No. 1 had actual knowledge in 1946 that the husband had obtained a divorce from her in Baltimore. He concluded that her failure to take any action for 13 years to set the decree aside during which time Wife No. 2 had married the husband without knowing of any legal impediment to the validity of her marriage, and had lived with the husband as his wife for 13 years until his accidental death in 1959 (after which event the petition to set aside was filed) amounted to laches which required that the petition of Wife No. 1 to set the divorce decree aside be dismissed. An order dismissing the petition of Wife No. 1 was filed on Oc ²²⁸ tober 26, 1964 and this appeal followed.

We agree with Judge Cardin’s conclusion and the order dismissing the petition of Wife No. 1 will be affirmed. This Court has had before it a number of cases in which the defense of laches was asserted against the relief prayed for in bills of complaint or petitions to vacate final divorce decrees obtained in Maryland or in a sister State and entered after a decree pro’ confesso was first obtained. In those petitions or bills of complaint it was alleged that the trial court lacked jurisdiction over the subject matter because of fraud in connection with the residence requirements applicable to the plaintiff in the original divorce suit. In every decision, however, the Court has held that the factual situation necessary to support the defense of laches was not present, so that there is no holding that laches did apply although this has been strongly indicated.

See Day v. Day, 237 Md. 229 , 205 A. 2d 798 (1964) ; Pelle v. Pelle, 229 Md. 160 , 182 A. 2d 37 (1961); Connelly v. Connelly, 190 Md. 79 , 57 A. 2d 276 (1948); Hinden v. Hinden, 184 Md. 575 , 42 A. 2d 120 (1945); Croyle v. Croyle, 184 Md. 126 , 40 A. 2d 374 (1944); and Simms v. Simms, 178 Md. 350 , 13 A. 2d 326 (1940). See also Ewald v. Ewald, 167 Md. 594 , 175 Atl. 464 (1934) in which this Court reversed the trial court’s finding in a subsequent annulment suit involving a later marriage that the prior divorce decree was null and void in a suit in which the wife was plaintiff and she allegedly was not a resident of Maryland when the decree pro confesso and the final divorce decree were obtained. Judge Urner, speaking for the Court, stated: “The question with which we are concerned in this case is whether the decree of the Circuit Court, dissolving a Maryland marriage for a cause arising in Maryland, should be nullified because additional evidence, produced twelve years later, has convinced another chancellor that the decree was erroneous in its determination of the jurisdictional fact of residence. The record fails to present any reason which seems to us adequate for such a review and rescission of the decree thus challenged.

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