Van Wagenberg v. Van Wagenberg

• Decision Date: 12 January 1966
• Docket Number: No. 99,99
• Parties: , 27 A.L.R.3d 379 Andre VAN WAGENBERG v. Aino VAN WAGENBERG.
• Court: Maryland Court of Appeals

Page 154

241 Md. 154

215 A.2d 812, 27 A.L.R.3d 379

Andre VAN WAGENBERG v. Aino VAN WAGENBERG.

No. 99.

Court of Appeals of Maryland.

Jan. 12, 1966.

Raymond S. Smethurst, Jr., Salisbury (E. Dale Adkins, Jr., and Adkins & Potts, Salisbury, on the brief), for appellant.

Thomas S. Simpkins, Princess Anne (Simpkins & Simpkins, Princess Anne, on the brief), for appellee.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

This appeal from a judgment entered in the Circuit Court for Somerset County on a judgment previously entered by the Supreme Court for New York County, New York, involves questions under the full faith and credit and due process of law clauses of the federal constitution and the construction of a New York statute. No testimony is involved; the facts before us are those disclosed by the pleadings and court records and are undisputed.

Andre Van Wagenberg, the appellant, (the husband) and Aino Van Wagenberg, the appellee, (the wife) were married in Washington, D. C. on May 24, 1943. Their only child, Maria Theresa, (the daughter) was born on August 5, 1946. The family lived in Somerset County until marital difficulties arose, when the wife moved to Nassau County, New York, taking the daughter with her. There, the wife instituted an action for separation.

On April 25, 1952, the husband and wife entered into an agreement (the agreement) executed in the office of a law firm in New York City. The agreement gave the husband's residence as Princess Anne, Maryland, and that of the wife as Long Island, New York. It recited the marriage and separation of the parties and the institution of the wife's action for separation. It provided that the wife should have exclusive custody of the daughter and that the daughter's residence was to be with her mother. The husband agreed to pay $325 a month for the wife's support and maintenance, unless the parties were divorced and the wife remarried, and $175 for the support and maintenance of the daughter, until her attainment of majority, marriage or death.

Paragraph SECOND (d) reads as follows: 'In addition to sums hereinabove specified, the Husband shall pay all extraordinary and unusual medical expenses of the child arising from serious accidents or serious illnesses.' To secure these payments, Paragraph FOURTH of the agreement required the husband to maintain on deposit with Fahnestock & Co., a New York investment brokerage house, $2000 in cash or marketable securities and to authorize Fahnestock & Co. to pay the wife her monthly allotment out of such funds upon presentment by her of a sworn statement that such allotment was at least fifteen days overdue. In the event of a withdrawal from the account by the wife, or a decline in the market value of any deposited securities below the stipulated $2000 figure, the husband was to make additional contributions sufficient to restore the fund to the full amount provided for.

The agreement provided that it was not to be merged in any order or decree in any divorce proceeding, although its provisions might be incorporated in any such order or decree, but was to continue in full force and effect between the parties.

Prior to the execution of the agreement, and evidently while the wife's proceeding for separation was pending in New York, the husband had instituted a divorce proceeding against the wife in Somerset County, Maryland. After the agreement had been signed in New York, the wife filed a cross-bill in the Maryland proceeding. On June 2, 1952, the Circuit Court for Somerset County dismissed the husband's bill and granted the wife a divorce a vinculo. The court, in its decree, provided for the support and maintenance of the wife and daughter in the terms set forth in the agreement.

In August, 1954, the daughter contracted infantile paralysis. In April, 1963, the wife filed a complaint against the husband in the Supreme Court of the State of New York, County of New York. In her complaint, the wife alleged she was a resident of the City and State of New York and that the husband was a resident of Princess Anne, Maryland. She recited the terms of the agreement and the Maryland divorce decree, copies of both which were filed as exhibits. The complaint alleged that, because of the daughter's infantile paralysis, is was necessary that she have four operations and special nursing care, and that the extraordinary medical expenses incurred by the wife on behalf of the daughter totalled $25,000 to date, of which the husband had paid only $6,500. The wife asked judgment for the remainder of the expenses, in the sum of $18,500.

Pursuant to Sections 302(a)(1) and 313 of the New York Civil Practice Law and Rules, a copy of the complaint was served upon the husband in Princess Anne on September 13, 1963, by a Maryland attorney. The husband filed no answer and entered no appearance of any kind in the New York case, either in person or by attorney. On November 19, 1963, the case was tried in the New York court before Justice Streit, without a jury, and judgment rendered for the wife for $18,500 plus interest and costs. The judgment recites that the action is for breach of an express contract, that the husband is a non-resident of New York, and that the summons and complaint were served on him personally without the State. It also recites that 'a warrant of attachment granted in the action has been levied on the property' of the husband.

The wife filed suit on the New York judgment in the Circuit Court for Somerset County on December 26, 1963, and moved for summary judgment. The husband filed an affidavit in opposition to the wife's motion in which he set forth that he had not been personally served with process in the New York proceeding in the State of New York, and claimed that the New York judgment is invalid as a judgment in personam and is not entitled to full faith and credit in Maryland. After further procedural pleadings, not here relevant, Judge Prettyman granted the wife's motion for summary judgment, and the husband appealed.

The husband contends first, that he has the right to contest the validity of the New York judgment, despite the full faith and credit clause; second, that the New York Legislature in enacting Section 302(a)(1) of the New York Civil Practice Law and Rules did not intend to include the execution of a separation agreement within the meaning of the jurisdictional phrase 'transact any business'; and, third, that if the New York Civil Practice Law be construed contrary to this contention, then the assertion of jurisdiction over him by the New York court was unconstitutional as a deprivation of due process of law.

I

Under the full faith and credit clause of Article IV, § 1 of the federal constitution, and the act of Congress, 28 U.S.C. § 1738, the duly attested record of the judgment of a state is entitled to such faith and credit in every court within the United States as it has by law or usage in the state from which it is taken, and if it appears on its face, as here, to be a record of a court of general jurisdiction, its jurisdiction over the cause and the parties is presumed. Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649 (1938) and cases therein cited; Roach v. Jurchak, 182 Md. 646, 650, 35 A.2d 817 (1944). However, in a suit upon the judgment of another state the jurisdiction of the court which rendered it is open to judicial inquiry; if there was no jurisdiction, the judgment is not entitled to faith and credit. Adam v. Saenger, supra, 303 U.S. at 62, 58 S.Ct. 454; Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 469, 21 L.Ed. 897 (1874); Johnson v. Johnson, 199 Md. 329, 335, 86 A.2d 520 (1952); Restatement, Judgments, § 5 and comment d (1942); Goodrich, Conflict of Laws, §§ 72 and 209 (4th ed. 1964); Rashid, The Full Faith and Credit Clause: Collateral Attack on Jurisdictional Issues, 36 Geo. L.J. 154 (1948).

If the court of the state rendering the judgment sued upon was not authorized by that state to exercise its jurisdiction in the particular matter, the purported judgment is subject to sollateral attack. The power of the state (Maryland) in which the suit on the judgment of the sister state (New York) is brought, to examine into whether, under the New York law, the court of that state which rendered the judgment had authority to do so, is beyond question. Treinies v. Sunshine Mining Co., 308 U.S. 66, 78 60 S.Ct. 44, 84 L.Ed. 85 (1939); Magdanz v. District Court of Woodbury County, 222 Iowa 456, 269 N.W. 498, 108 A.L.R. 377 (1936); Ellis Chalmers Mfg. Co. v. Lewelling Grain Co., 141 Kan. 350, 41 P.2d 1032 (1935); Traders Trust Co. v. Davidson, 146 Minn. 224, 178 N.W. 735 (1920); Folger v. Columbian Ins. Co. & Trustees, 99 Mass. 267 (1868). '[T]he fact that a state has judicial jurisdiction to do a certain thing does not mean that any court of that state has power to do it * * * the fact that the court acted beyond the authority vested in it by the state may make the judgment void where rendered and therfore not entitled to recognition and enforcement elsewhere.' Restatement (Second), Conflict of Laws, § 74, comment g, (Tent. Draft No. 3, 1956). See also Goodrich, supra, § 79 and 3 Freeman, Judgments, §§ 1370, 1389 (1925).

The husband is not barred from collaterally attacking the validity of the New York judgment by the doctrine of res judicata. He filed no answer and made no appearance of any kind in the New York proceedings. Sutton v. Leib, 342 U.S. 402, 408-409, 72 S.Ct. 398, 96 L.Ed. 448 (1952). Compare Sherrer v. Sherrer, 334 U.S. 343, 351, 68 S.Ct. 1087, 92 L.Ed. 1429, 1. A.L.R.2d 1355 (1948) and Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 375, 60 S.Ct. 317, 84 L.Ed. 329 (1940). Compare, also, Colby v. Colby, 217 Md. 35, 141 A.2d 506 (1958) and Leatherbury v. Leatherbury, 233 Md. 344, 196 A.2d 883 (1964).

Not only did the husband not appear in any way in the New York proceedings, but the determination as...