Smith v. Smith

³² Marbury, J., delivered the opinion of the Court. Charles Smith appeals from an order of Circuit'Court No. 2 of Baltimore City which gave full faith and credit to an Illinois decree granting custody of his four minor children to their mother, Beatrice A. Smith. The appellant Charles Smith and the appellee Beatrice A. Smith were married in Baltimore, Maryland, on December 21, 1957. Four children were born as the result of the marriage, Lisa, Brian,.

Marvin, and Paul. After 1957, and for almost eight, years, the parties lived in Baltimore City. Their last residence was on Ellwood Avenue, where they occupied an apartment. In February 1965, the wife left Baltimore and-went to Lawrenceville, Illinois, with the children.

She testified that she intended to permanently remain in Illinois at that time. The appellant remained in Baltimore for several months. After he was laid, off from his job at the Bethlehem Steel Company he rejoined his family in Illinois, moving their furniture to Lawrenceville. He indicated that he went to Illinois with the intention of establishing a home for his family there.

For about six months, the parties lived together with the appellee’s father and brother. However, the appellant was unable to find suitable employment in Lawrenceville and he returned to, Baltimore to resume his prior employment. Nevertheless, he left his belongings and furniture in Illinois. After working for approximately three months Smith again went to Illinois but after a brief stay, he returned to Baltimore.

In June of 1967, the appellant again returned to Illinois to live and seek employment. By this time, the parties had consulted an Illinois attorney with respect to their marital difficulties. The Smiths agreed that one of their children, Lisa, would be. permitted to visit the appellant’s mother in Baltimore. After the child’s departure, however, the appellant told his wife that their daughter would not be returned to Illinois.

The evidence revealed that during this period an argument ensued, and Mrs. Smith took the three other chil ³³ dren to her grandmother’s house in Bridgeport, Illinois, a town near Lawrenceville. After Mr. Smith located them he removed Brian from Illinois by placing him in a taxicab destined for Vincennes, Indiana. Thereafter, Mr. Smith and Brian came to Baltimore. The appellee had unsuccessfully attempted to prevent Brian’s removal, and on the next day, she filed an action for divorce and custody in the Circuit Court for Lawrence County, Illinois.

Suit papers for the Illinois divorce action were personally served upon the appellant in Baltimore City, but he never filed a defense to that proceeding. After conducting a hearing, on October 16, 1967, the Illinois court granted the appellee a final decree of divorce and custody of the four children. Mrs. Smith instituted the present proceeding in the Circuit Court No. 2 of Baltimore City to obtain custody of Brian and Lisa, the two children who were living with the appellant. After taking testimony, the lower court entered an order and memorandum wherein the court found that the two children had been domiciliarles of Illinois at the time of the institution of the Illinois proceedings, and that the court was compelled to give full faith and credit to the Illinois divorce decree granting custody to the appellee.

Mr. Smith has appealed to this Court. On appeal, Mr. Smith argues that the lower court erred in giving full faith and credit to the Illinois decree. At oral argument and in his brief, appellant’s attorney has urged that this case is controlled by May v. Anderson, 345 U. S. 528 . We do not agree and affirm the lower court’s decision.

In May the husband and wife had been domiciled in Wisconsin until marital troubles arose. The parties agreed that the wife should take their children to a location in Ohio so that she could think over her future course. After the wife refused to return, her husband filed suit in Wisconsin and obtained an absolute divorce and custody of the children in an ex parte proceeding. The only service upon the wife consisted of a copy of the summons and petition delivered to her in Ohio.

After ³⁴ the wife refused to surrender