Rypma v. Stehr

ADKINS, Judge. In 1978, the Circuit Court for Prince George’s County granted appellee, Joseph M. Stehr, III, an absolute divorce from appellant, Jacqueline A. (Stehr) Rypma. Custody of the couple’s child, Paul, was awarded to Jacqueline.

Joseph was ordered to pay his former wife $200 per month in child support but was granted visitation rights. This was the unremarkable beginning of a remarkably long and convoluted litigation. This case, which has survived numerous master’s reports, circuit court rulings, a decision by the Court of Special Appeals and a denial of certiorari by the Court of Appeals, now presents us with these questions: 1. Did the trial court err in determining that because the original divorce proceedings resolving custody were held in Maryland, this state retains subject matter jurisdiction over custody related issues even though Paul has long resided in Iowa? 2.

Did the trial court err in failing to award to appellant her attorney’s fees, expert witness fees, and travel expenses? ²⁴⁵ As our answer to both of these two questions is “no,” we shall affirm the ruling of the trial court. Before we explain our conclusions, we provide a history of this affair. Facts Shortly following her divorce from Joseph, Jacqueline married Craig Rypma. In July 1980, because of a requirement of Craig’s doctoral program, Jacqueline and Paul moved to Iowa.

A dispute then arose as to Joseph’s rights to visit Paul. Eighteen months after Paul’s move to Iowa, Joseph filed a petition seeking clarification of his visitation rights and an order enjoining Craig and Jacqueline from changing Paul’s surname from Stehr to Rypma. A show cause hearing was held and a master’s report was issued. Joseph filed exceptions.

The circuit court judge, concluding that Joseph was not allowed enough visitation time, granted the exceptions, and remanded the case to the master. After a second hearing and issuance of a master’s report, both parties filed exceptions. This time the judge adopted the report with one change regarding child support payments. Both parties appealed to this court.

We affirmed the part of the trial court’s decree that increased Joseph’s visitation rights and enjoined the use of Rypma as Paul’s surname. We reversed, however, on the issue of attorney’s fees and other expenses and remanded the case to the trial court, ordering the chancellor to determine what, if any, award for fees and expenses would be proper. Jacqueline petitioned the Court of Appeals for a writ of certiorari, raising, for the first time, the issue of whether the circuit court had subject matter jurisdiction over the custody phase of the cases. The petition was denied sub nom.

Stehr v. Stehr, 301 Md. 43 , 481 A.2d 802 (1984). In the meantime, the master filed a second supplemental report, recommending that each party bear his or her own attorney’s fees and expenses. Jacqueline excepted. She also filed a supplemental motion to strike and/or motion to ²⁴⁶ revise judgment, again raising the issue of subject matter jurisdiction.

By way of a third supplemental report, Master David K. Rumsey recommended that each side bear its costs and that Jacqueline’s motion challenging the court’s subject-matter jurisdiction be denied. These recommendations were adopted by Prince George’s County Circuit Court Judge David G. Ross in an order and a judgment issued on September 10 and October 4, 1985. This appeal by Jacqueline followed. 1. Subject-Matter Jurisdiction Jacqueline argues that the order and judgment issued by Judge Ross should be voided because the trial court lacked subject-matter jurisdiction over the custody related issues of visitation rights and the attempted change of Paul’s surname.

For his part, Joseph raises several rebuttal arguments. We may focus our attention, however, on just one. 1 ²⁴⁷ It concerns the appropriate law to apply. We have two choices: McLCode Annotated, Family Law Art., § 9-204 and Family Law Art., § 9-302. If, as Jacqueline argues, Family Law Art., § 9-204 controls this proceeding, then the court lacked authority to rule on child custody issues.

The provision reads in pertinent part: § 9-204. When court has jurisdiction. (a) Grounds for jurisdiction.—A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree if: (1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within 6 months before commencement of the proceedings and the child is absent from this State because of the child’s removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this State; (2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and the child’s parents, or the child and at least 1 contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; (3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accord ²⁴⁸ anee with items (1), (2), or (3) of this subsection or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction. We recognize that none of the four alternative grounds for conferring jurisdiction was present in this case.

First, Maryland is not the home state of Paul, nor was it within six months of the start of this proceeding, which began with the filing of Joseph’s petition for clarification of order and show cause order in 1981. Secondly, Paul lacks a significant connection with Maryland, as required under § 9-204(a)(2). The time spent by Paul in this state, a few vacation weeks with Joseph, is insufficient. See Olson v. Olson, 64 Md.App. 154 , 494 A.2d 737 (1985).

Moreover, the requirement of (a)(2)(h) has not been met. No showing has been made of “substantial evidence” in Maryland concerning Paul’s “present or future care, protection, training, and personal relationships.” Because Paul is not physically present in Maryland, § 9-204(a)(3) may be eliminated. Lastly, Iowa’s apparent though unexercised claims to jurisdiction bar the use of § 9-204(a)(4). 2 On the other hand, the court would enjoy jurisdiction if § 9-302 governs. This provision reads: ²⁴⁹ § 9-302.

Jurisdiction over custody and visitation. (a) Authority of court.—An equity court has jurisdiction over custody and visitation of a child who is removed from this State by a parent of the child, if: (1) the parents are separated or divorced and this State was: (1) the marital domicile of the parents; or (ii) the domicile in which the marriage contract was last performed; (2) 1 of the parents was a resident of this State when the child was removed and that parent continues to reside in this State; and (3) the court obtains personal jurisdiction over the parent who removes the child. (b) Effect of section.—This section does not affect any other basis of an equity court’s jurisdiction over custody and visitation of a child. Jacqueline and Joseph were married in Maryland.

This satisfies § 9-302(a)(l). Joseph was a resident of Maryland when Paul was removed, and he continues to reside here. This satisfies (a)(2). The last provision is met also, as Jacqueline has appeared in court in this matter.

We conclude that § 9-302 governs this case. We explain. Perhaps the best way to begin is to review the history of §§ 9-302 and 9-204, the two apparently conflicting provisions. They are in apparent conflict because, as we have seen, § 9-204 seems to deny jurisdiction to a Maryland court, whereas § 9-302 seems to grant it.

Although both were re-enacted when the revised Family Law Article was adopted by Chapter 296, Acts of 1984, § 9-302 is the older of the two. Its substantively identical antecedent is Art. 16, § 66(f), which was enacted in 1968. We may infer from the history outlined in In re Karol, 11 Md.App. 400 , 274 A.2d 407 (1971) that § 66(f) was enacted to close a loophole in the custody jurisdiction law existing at that time. Until 1968, Maryland followed only the “domicile” rule with respect to custody jurisdiction.

That is, a ²⁵⁰ state court was said to have jurisdiction to determine custody of a child only if the domicile of the child was within the state. Significantly, with the decision of Berlin v. Berlin, 239 Md. 52 , 210 A.2d 380 (1965), the Court of Appeals had expanded the concept so that a Maryland court which had initial jurisdiction over a child because of the domicile rule could retain continuing jurisdiction over it even if it became a domiciliary of another state. Miller v. Miller, 247 Md. 358 , 231 A.2d 27 (1967), however, exposed a loophole in the expanded version of this rule. In Miller , the Maryland court did not have initial jurisdiction over the children at issue (a Florida court, not the Maryland court, passed the original decree of custody); thus the Court of Appeals held that Berlin’s continuing jurisdiction concept did not apply and that the Maryland court was required to give full faith and credit to the Florida decree.

When the General Assembly next met after Miller was decided, it enacted § 66(f), which eliminated the necessity of showing initial jurisdiction through the child’s domicile. As In re Karol stated, after § 66(f) “the domicile of the child is no criterion of jurisdiction.” 11 Md.App. at 404 , 274 A.2d 407 . The concept of continuing jurisdiction, however, was retained and linked not to original jurisdiction over the child but to a new three-part prerequisite involving 1) Maryland’s being the matrimonial domicile of the parties or the domicile where the marriage contract was last performed; 2) Maryland residency of one of the parties to the marriage; and 3) the court obtaining personal jurisdiction of the party removing the child. This history is critical.

From it, we can distinguish the continuing jurisdiction notion as espoused in Berlin from the one in § 66(f), as each is predicated upon a different set of circumstances. Additionally, it is significant to note the last provision of § 9-302(b), which also appeared in a lengthier form in § 66(f): “This section does not affect any other basis of an equity court’s jurisdiction over custody and visitation of a ²⁵¹ child.” The existence of § 9-302(b) underscores the independent status of the section. The history of § 9-204 is far different from that of § 9-302. Section 9-204 is part of the Maryland Uniform Child Custody Jurisdiction Act (the Uniform Act).

The Uniform Act was enacted in 1975, four years after Karol was decided. A key to interpreting § 9-204 (codified as Art. 16, § 186 until 1984) is recognition that Maryland’s intent in adopting the Uniform Act of which it is a part was to help create one law that would be uniform in jurisdictions adopting the Uniform Act. Indeed, the legislature tolerated only small variances from the model’s text so that general uniformity of construction could be retained. See General Revisor’s Note, § 9-224.

This desire explains why § 9-204 does not incorporate or refer to § 9-302 but stands apart from it. Armed with a general understanding of the origins of § 9-204 and § 9-302, we may now explore the relationship between the two. Logically, only one of three relationships can exist. Either a) § 9-302 nullifies § 9-204, or b) § 9-204 nullifies § 9-302, or c) each exists independently.

Of course, the very fact that both § 9-204 and § 9-302 appear in the Code is some basis for assuming that neither precludes the other. As the Court stated in Equitable Life Assurance Society of the United States v. Jalowsky, 306 Md. 257 , 508 A.2d 137 (1986): “We have long held that ‘in construing legislative enactments, all statutes relating to the same subject matter are to be considered and harmonized as far as possible’ ” (quoting May v. Warnick, 227 Md. 77, 83 , 175 A.2d 413 (1961)). See also Farmers & Merchants National Bank of Hagerstown v. Schlossberg, 306 Md. 48, 61 , 507 A.2d 172 (1986) (“Because the General Assembly is presumed to have intended that all enactments operate together as a consistent and harmonious body of law, statutes