Rethorst v. Rethorst

Brune, C. J., delivered the opinion of the Court. This is an appeal by Scott C. Rethorst, appellant, from (1) a final decree of the Circuit Court for Montgomery County which awarded to the appellee, Jean J. Rethorst, custody of the minor children of the parties, and required the appellant to pay an additional counsel fee to counsel for the appellee and to pay the court costs; and (2) from certain orders entered pendente Hie with regard to the custody of the children,, alimony and counsel fees, and holding the appellant guilty' of contempt for an alleged violation of orders for the payment of alimony and counsel fees. He also seeks (3) the reversal of an order entered after this appeal directing appellant to- ⁴ pay to appellee an additional counsel fee and suit money on this appeal. We find no separate appeal from that order.

Scott C. Rethorst, appellant, and Jean J. Rethorst, appellee, were married February 25, 1944, in New York, and are the parents of two children, viz.: John Carter Rethorst and Susan Rethorst, aged nine and six years, respectively. Mr. and Mrs. Rethorst after their marriage lived in Akron, Ohio, Washington, D. C., Arlington, Virginia, and Pasadena, California. In September, 1950, while the United States was engaged in the Korean conflict, the appellant, who was attending the California Institute of Technology, took a leave of absence to do work again as an Air Force consultant in the District of Columbia. At first he resided in an apartment in Washington, D. C., but recalling the housing problem during World War II, shortly after his arrival he purchased a home in Montgomery County, to which he brought his family.

There is evidence supporting his contention that this was meant to be only a temporary abode, and we think that his domicile continued to be in California. In the interest of brevity, we shall not review the evidence leading to that conclusion, which is not really disputed. (The finding of the California court referred to below does not determine his residence prior to September 27, 1953.) In February, 1952, the appellee decided to separate from her husband, and she rented an apartment in Montgomery 'County for herself and the two children. Within a few days after the separation she filed this suit in the Circuit Court for Montgomery County for a divorce a mensa et thoro from the appellant on the ground of abandonment and she asked that the custody of the children be awarded to her.

On February 15, 1952, a show cause order was signed allowing her $300 a month alimony pendente lite and initial counsel fees of $300, and a copy of the bill of complaint and of the order to show cause were served on the appellant personally on February 20, 1952. An informal agreement was reached by the parties under which the husband agreed to make payments of $200 a month for the support of his wife and children. The docket entries show no further action in this suit until August 30, 1954. ⁵ The order to show cause, which provided for the payment of alimony pendente lite, did not refer specifically either to the custody of the children or to their support. The informal agreement between the parties evidently was to the effect that the children should live with the appellee, that the payments by the appellant were to be for their support as well as for the benefit of the appellee, and that the appellant should have the right to visit the children and to take them out with him, returning them to their mother in the evening. 1 This agreement was adhered to until August 28, 1954.

In September, 1953, the appellant had returned to his graduate studies at the California Institute of Technology, but he returned to Montgomery County on an extended visit in the summer of 1954 and resumed his visits to the children. During a visit on August 28, 1954, the appellant took the children from the appellee’s apartment as on other occasions. This time, however, he put them on board a train, without any notice to the appellee of his intention to do so, and took them with him to California. While en route to California the appellant mailed back his answer to the bill of complaint in this suit.

This answer was filed in proper person, and not through counsel, though its form and content suggest that he had legal assistance in preparing it. Its most important features were a denial of the charge of desertion and an admission that the parties were residents of Maryland. From this point on something of a transcontinental legal battle developed quite rapidly. Mrs. Rethorst undertook to give notice by mail to the appellant that her deposition was to be taken at Rockville, Maryland, on September 21, 1954.

For some reason not explained, it was taken on September 14th. Mr. Rethorst was not present, nor was he represented by counsel. He had not given any address in California when he sent his wife a note, dated August 28th, saying that he was taking the children there, and the notice appears to have been sent to the place where he had been visiting in Montgomery County, which ⁶ was the former residence of the parties. A registered mail, return receipt requested, typewritten letter from the appellant to the appellee suggesting reconciliation was received by her on September 14, 1954.

It gave a Pasadena post office box return address. On or about September 16th, Mrs. Rethorst left by plane for California and, went to Pasadena. It took her a few days to locate her husband and the children. She promptly instituted a habeas corpus proceeding on September 24, 1954, in Pasadena to try to regain custody of the children, and a summons in that case was served on the husband the next day.

He reacted by filing a bill for a divorce on September 27, 1954, charging extreme cruelty and desertion. In that suit he also sought custody of the minor children. Both the habeas corpus case and that divorce suit were filed in the Superior Court of California in and for Los Angeles County, and they were consolidated. Process was served upon the wife in the divorce suit.

She was represented by counsel, appeared at several hearings and offered testimony in the California proceedings. As the California proceedings were getting under way, the appellee, through her Maryland counsel, filed a petition on September 24, 1954, in the Circuit Court for Montgomery County for custody of the children pendente lite. This petition and the testimony taken on September 14th, which was filed with it, showed the removal of the children from Maryland by their father on August 28th. The Circuit Court issued an order on September 24, 1954, awarding custody of the children to the mother.

On September 28, 1954, counsel (not the appellant’s present counsel) entered his appearance for Mr. Rethorst in the Circuit Court for Montgomery County, and on November 9, 1954, filed an answer on his behalf to the wife’s petition of September 24. By this answer the appellant denied any wrongdoing on his part in taking the children to California, referred at some length to the California divorce action and proceedings therein, and denied that he had been a resident of Maryland after September 10, 1953, but reiterated his earlier ⁷ admission that he had been a resident of Maryland when the wife’s suit was filed in February, 1952. He asserted the presence of the children in California and his own residence there. He concluded with a prayer that the wife’s petition for custody pendente lite be dismissed, “since the California Court has jurisdiction of said children and is proceeding to hear the matter of custody at the present time.” There was considerable activity in California during the fall of 1954, not all of which need be detailed here.

The California court held several hearings. On October 27th it enjoined each of the parties temporarily from removing the children from its jurisdiction. Eater — in November, 1954— it awarded custody of the children pendente lite to the mother, and she returned to Maryland with the children. In October her testimony was taken by deposition in Los Angeles for use in the Maryland case.

Insofar as the custody of the children was concerned, it was substantially the same as that given in her deposition of September 14th in Maryland. On December 1, 1954, the appellant filed an amended complaint in the California case, and on January 24, 1955, the appellee filed an answer thereto. In addition to asserting defenses on the merits, she urged that the California case was barred by the Maryland suit or at least should be abated during its pendency. She also contended that even if a divorce were granted to her husband, the custody of the children should be awarded to her.

The California case resulted in findings and a decree entered on May 14, 1956, which (inter alia) found the husband to have been a resident of California for at least a year prior to the date of filing the complaint (September 27, 1954), that the husband was entitled to a divorce on the grounds of cruelty and desertion, that he had not deserted the wife, that she was not entitled to alimony, and that each of the parties was a fit person to have custody of the children, and awarded custody of the son to the husband and of the daughter to the wife, with provisions for payments by the husband for the support and care of the daughter. It also allowed a counsel fee to the wife’s California counsel. This decree was, however, interlocutory and, though it determined the issues between the parties, it did ⁸ not have the effect of dissolving the marriage, That would not occur until a year later. During the pendency of the California case there was also considerable activity in the Maryland suit in addition to that already mentioned.

So much of it as now seems pertinent is referred to below. On February 17, 1955, the wife obtained an order for alimony pendente lite at the rate of $300 per month and a counsel fee of $300. There is no showing that any notice of an application for such an order was given the husband or his counsel, and the husband asserts that there was none. On April 15, 1955, the husband filed a so-called special plea challenging the jurisdiction of the Maryland court on the ground that both parties were residents of California.

This appears to have lain dormant. On June 27, 1955, the wife filed a petition that the husband be adjudged in contempt for non-payment of alimony and seeking a monetary decree against him for $5,453.89, claimed to be in arrears. An order to show cause on or before July 15, 1955, was issued on this petition on the same day, provided that a copy be served on Mr. Rethorst or his attorney of record on or before June 30th. The sheriff’s return shows that service was made on Mr. Rethorst personally on July 1, 1955 — one day late.

The wife obtained another show cause order of like tenor issued on July 25, 1955, returnable on August 8th, provided that a copy be served on the husband, or his attorney of record, on or before August 1st. A copy was served on his attorney of record on August 1, 1955. No answer was filed within the time specified. On August 9, 1955, an order was filed adjudging the appellant in contempt, ordering the issuance of an attachment against him and awarding a monetary decree against him for $2,810.

How this amount was arrived at does not clearly appear. In January, 1956, the appellee sought a summary judgment to enforce her claim for alimony awarded by the decree of August 9, 1955, which was resisted by the appellant and appears 'not to have been disposed of. On April 30, 1956, the appellant filed three separate motions to vacate the orders or decrees herein dated, respec ⁹ tively, September 24, 1954, February 17, 1955, and August 9, 1955. On June 21, 1956, the Circuit Court overruled all three motions and filed an opinion and order which awarded the custody of both of the children to the appellee and ordered the appellant to pay $150 a month for their support and to pay the costs of the proceedings and a fee of $500 to the appellee’s counsel.

The principal question at issue is the effect of the decree of the California court with regard to the custody of the children. Since it and the Maryland court reached the same conclusion as to the daughter, the controversy is limited in its practical effect to the custody of the son; but the same principles control as to the custody of both children. Other questions pertain to the orders of the Circuit Court for Montgomery County relating to alimony, counsel fees and suit money, and to the appellant’s right to maintain this appeal, notwithstanding that he has been adjudged in contempt of the Circuit Court. The last order to which the appellant objects in his brief is the order of September 7, 1956, allowing the wife a counsel fee of $200 and suit money of $100.

He has, however, failed to appeal from that order. It is not automatically brought up for review by the appeal from the final order of June 21, 1956, under either Section 32 of Article 5 of the Code (1951), which was in force until December 31, 1956, or under Rule 887 of the Maryland Rules which superseded that Section on January 1, 1957, because the order of September 7th was, of course, not previous to the order of June 21, 1956. Since (despite the wealth of pleadings and motions in this case) no appeal was taken from the order of September 7, 1956, it is not before us for review. The appellee moved to dismiss the appeal on several grounds.

One was that the husband is in contempt of the Circuit Court for Montgomery County and therefore might not prosecute his appeal until he purges the contempt. The appellee relies chiefly upon Skirven v. Skirven, 154 Md. 267 , 140 A. 205 , in support of this contention. But in Gunter v. Gunter, 187 Md. 228 , 49 A. 2d 454 , the Skirven case was explained and a limitation upon its scope was pointed out. It ¹⁰ was said ( 187 Md. at 233 ): “This court has held that where a litigant has been adjudged guilty of contempt, he cannot, so long as the judgment stands unimpeached ‘be permitted as a matter of right to make any motion, file any petition, or assert any claim for relief in the particular suit in which the contempt has been adjudicated.’ Skirven v. Skirven, 154 Md. 267, 271 , 140 A. 205, 207 , 56 A. L. R. 697.

In that case, however, the trial court did not undertake to finally dispose of any right, but merely required the petitioner to purge his adjudicated contempt, as a condition to granting him relief in the same proceeding.” In Brewster v. Brewster, 207 Md. 193 , 114 A. 2d 53 , the husband’s petition for an order reducing alimony was held properly dismissed when he was in default and in contempt. That did not involve the final disposition of substantive rights. See also Keen v. Keen, 191 Md. 31 , 60 A. 2d 200 . A similar contention was raised on the first appeal in the Brewster case, 204 Md. 501 , 105 A. 2d 232 , but the appellee’s motion to dismiss the appeal was there denied.

The appellant had there been adjudged in contempt because of noncompliance with an order, the validity of which he challenged by his appeal. The general rule which now seems well established is that the fact that the husband is in contempt will not prevent his litigating his substantial rights in connection with which the contempt was committed. Du Pont v. Du Pont (Del.), 103 A. 2d 234 ; Kirchner v. Kirchner, 5 N. J. Super. 341, 69 A. 2d 30 ; Hovey v. Elliott, 167 U. S. 409 ; McCollum v. Birmingham Post Co., 259 Ala. 88 , 65 So. 2d 689 . See also Duell v. Duell, 85 App. D. C. 78, 178 F. 2d 683 , 14 A. L. R. 2d 560, and annotation following.

Other grounds urged in