Woodcock v. Woodcock

• Decision Date: 18 June 1935
• Docket Number: 29.
• Citation: 179 A. 826,169 Md. 40
• Parties: WOODCOCK v. WOODCOCK.
• Court: Maryland Court of Appeals

179 A. 826

169 Md. 40

WOODCOCK v. WOODCOCK.

No. 29.

Court of Appeals of Maryland

June 18, 1935

On Motion for Modification July 12, 1935.

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Suit by Ruth Price Woodcock against S. Franklyn Woodcock. From an order overruling defendant's motion to quash the return upon the writ of subp na issued against him, defendant appeals.

Reversed and bill of complaint dismissed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

F Leonard Wailes, of Salisbury, and Alexander Armstrong, of Baltimore, for appellant.

George Weems Williams and Clarence W. Miles, both of Baltimore (Marbury, Gosnell & Williams and Miles & O'Brien, all of Baltimore, on the brief), for appellee.

MITCHELL Judge.

The appeal in this case brings before this court, for review, the propriety of a ruling of the chancellor in the circuit court No. 2 of Baltimore city upon a purely jurisdictional question, and the facts upon which that question is raised are as follows:

Ruth Price Woodcock on December 19, 1934, filed her bill of complaint in the circuit court No. 2 of Baltimore city against S. Franklyn Woodcock, in which she alleged that she and the defendant were married on April 25, 1928, in Salisbury, Wicomico county, Md., and that she and the said defendant had continuously resided in Maryland since the date of their marriage; that notwithstanding her own conduct toward her husband had always been that of a kind, chaste and affectionate wife, he had, without just cause or reason, abandoned and deserted her, and had compelled her on or about July 1, 1934, to leave their home in Wicomico county, Md., where they were then residing.

She further alleged that since the abandonment and desertion the defendant had failed and refused to contribute to her support, and that thereafter, on or about November 11, 1934, she, on becoming convinced that her husband had finally abandoned and deserted her, and that he did not intend to contribute further toward her support or maintenance, had moved to Baltimore city for the purpose of seeking employment with the intention of residing in said city, and, as a matter of fact, she had so resided in said city at 3333 North Charles street with her parents since November 11, 1934, and had established, and intended to maintain, her domicile in said city.

The plaintiff further alleged that her husband, the defendant, was a real estate broker and agent, with his principal office and residence in the city of Salisbury, but was engaged in business in various sections of the states of Maryland, Delaware, and Virginia, and finally alleged that the value of his estate was over $200,000 and that his annual income was not less than $15,000.

Upon these allegations the plaintiff then prayed that she "may be decreed to be entitled to receive and that the defendant may be required to pay to her by way of alimony, such an allowance out of his estate and income for the support and maintenance of herself as may be proportioned and appropriate to his means and station in life." Then followed a prayer for an allowance of alimony pendente lite and of a counsel fee and also a prayer for general relief in the usual form.

A summons was accordingly issued out of circuit court No. 2 of Baltimore city, and the same was served upon the defendant by the sheriff of Wicomico county in said county on December 21, 1934, and duly returned.

On December 27, 1934, the defendant, S. Franklyn Woodcock, filed a bill of complaint in the circuit court for Wicomico county against his wife, the said Ruth Price Woodcock, in which, after making the necessary allegations, he prayed for the passage of a decree granting him a divorce a mensa et thoro from his said wife on the ground of desertion and abandonment.

The day following his institution of the suit in Wicomico county the said S. Franklyn Woodcock, through his counsel, appeared specially in the Baltimore city case, and under oath filed a plea, which in substance denied the jurisdiction of the Baltimore court.

Briefly, the plea set forth the residence of the respective parties to the suit; alleged that the defendant had continuously resided in Wicomico county; that he had not engaged in any regular business or employment in Baltimore city; that the sheriff or coroner had not returned a "non est" on a summons in said county against him; that he was not, therefore, subject to process in any civil action in equity of the nature of the case against him, out of the county of his residence, and prayed that the return of the sheriff upon the writ of subp na issued from the Baltimore court against him be quashed, and that the original bill of complaint be dismissed.

Upon the aforegoing motion a hearing was had in circuit court No. 2 of Baltimore city on January 10, 1935, at which hearing testimony bearing upon the residence of the respective parties to the suit was taken in open court, whereupon the learned chancellor announced his findings of fact to be:

"First. That the defendant, S. Franklyn Woodcock, at the time of the filing of this suit was and still is a resident of Salisbury, Wicomico County, State of Maryland.

Second. That at no time within nine years or seven years, has he been doing business in Baltimore City, under the provisions of the Statute that refers to that status.

Third. I find that the complainant, Mrs. Ruth Price Woodcock, is a bona fide resident of the City of Baltimore at this time and has been such since the 11th day of November. So much as to the finding of fact."

The chancellor further observed that: "Under the second heading and as to the law, I find that this is an action in personam. It is not within the divorce statute providing for the filing of the bill either in the domicile of the plaintiff or of the defendant; that it is not an application for divorce a mensa or absolute, and that, therefore, as the bill now stands under the present ruling, the motion to quash the service should be granted."

But, notwithstanding the above conclusions, as modified by a subsequent reservation that at the trial of the case upon its merits the question of the residence of the plaintiff would be open to further proof, the chancellor on the same day granted leave to the plaintiff to amend her original bill of complaint. Under the amendment, the specific allegation is made that the abandonment and desertion of the plaintiff by the defendant is deliberate and final and beyond any reasonable hope of reconciliation, and an additional prayer for relief that the plaintiff may be divorced a mensa et thoro from the defendant, her husband, is added.

Immediately following the granting of said amendment the following orders in the case were passed:

"2.30 P. M., January 10, 1935.

After hearing in open Court (after luncheon recess) of the application for amending the prayer for general relief to specific relief, and other interlineation, and after permitting said amendment, the Court is of opinion that in view of the amendment, the case is in fact and form an application or Bill for Divorce and, therefore, comes within the statute as to forum where suit may be filed by Complainant, and the motion herein should therefore be and is hereby overruled. (Exception allowed.)

Eugene O'Dunne."

"Time to answer Bill as amended is left open to and including Friday, January 25, 1935--with leave also to defendant to apply for reduction of amount of alimony pendente lite if he care to, and to a hearing on said question, but in meantime the amount of alimony pendente lite is fixed at $50. a week, accounting from today, January 10, 1935.

Eugene O'Dunne."

It is proper to state that, before the passage of the last-mentioned order, testimony was taken in open court, for the purpose of fixing the amount of alimony pendente lite, and that, in all proceedings subsequent to the hearing on the motion from the ruling on which this appeal was taken, the defendant and his counsel refused to participate; this appeal being noted from the order overruling the motion to quash by counsel for the defendant who again appeared in the case for the sole purpose of the appeal.

Section 37 of article 16 of the Code of Public General Laws of Maryland provides: "The courts of equity of this State shall have jurisdiction of all applications for divorce; and any person desiring a divorce shall file his or her bill in the court, either where the party plaintiff or defendant resides; or if the party against whom the bill is filed be a non-resident, then such bill may be filed in the court where the plaintiff resides."

Section 14 of the above article provides: "The courts of equity of this State shall and may hear and determine all causes of alimony, in as full and ample manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there."

Section 15 of said article provides that: "In cases where a divorce is decreed, alimony may be awarded."

And section 157 of article 75 of the above Code provides "No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county; provided, that nothing herein contained shall apply to any person who shall abscond from justice in the county where he lives, but such person may be sued in any county where he may be found; and provided further, that any person who resides in one county but carries on any regular business, or habitually engages in any...