Altman v. Altman, 82

CourtCourt of Appeals of Maryland
Citation282 Md. 483,386 A.2d 766
Docket NumberNo. 82,82
PartiesColeman Parker ALTMAN v. Gisele ALTMAN.
Decision Date05 May 1978

James M. Griffin, Kensington (Stedman Prescott, Jr, and Staley, Prescott & Ballman, P. A., Kensington, on the brief), for appellant.

Bryan Renehan, Rockville (Jeffrey N. Greenblatt, Jackson Brodsky and Brodsky & Greenblatt, Rockville, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

LEVINE, Judge.

In this appeal we consider the extent to which a spouse may maintain an action for alimony in Maryland following dissolution of the marriage by a foreign ex parte divorce decree. After the Circuit Court for Montgomery County granted appellee's request for permanent alimony, the Court of Special Appeals affirmed in Altman v. Altman, 36 Md.App 538, 373 A.2d 1296 (1977). We then granted certiorari and we too shall affirm.

Because the relevant facts are both undisputed and uncomplicated, they may be summarized briefly. The chronology begins with the marriage of the parties in the State of Virginia in 1959. They subsequently moved to Maryland which became their marital domicile for the ensuing 11 years. In March 1976, appellee, who, by then had become afflicted with multiple sclerosis, instituted a suit in the circuit court for divorce a mensa et thoro and alimony, alleging that appellant had deserted her six months earlier. Despite appellant's otherwise extended absence from this state, appellee was able to effect personal service on him when he paid a brief visit to Laurel, Maryland several days after the suit was filed. Appellant then entered an appearance through counsel, but did not testify at the hearing before the chancellor.

In June 1976, appellant obtained in the Eighth Judicial District Court of Nevada a decree for absolute divorce in which the court found that he had been "an actual bona fide resident and domiciliary" of that state for six weeks immediately preceding the filing of the complaint. The Nevada decree made no provision for alimony or support. Appellee did not appear generally or specially in the Nevada proceedings, nor was she ever served personally with the complaint in the State of Nevada, but did receive a copy by mail at her Maryland residence.

At the hearing before him in September 1976, the chancellor (McAuliffe, J.), while recognizing the validity of the Nevada divorce decree, found that appellant had deserted appellee in September 1975, and awarded appellee permanent alimony in the sum of $350 a month and a solicitor's fee of $500. In affirming, the Court of Special Appeals held that the ex parte Nevada divorce decree did not preclude the circuit court, which had obtained in personam jurisdiction over appellant, from awarding alimony to appellee. 36 Md.App. at 548-49, 373 A.2d 1296.

Relying heavily upon our decision in Dackman v. Dackman, 252 Md. 331, 250 A.2d 60 (1969), appellant contends that where a nonresident spouse has obtained an absolute divorce from a Maryland resident by means of a foreign ex parte decree, he cannot subsequently be ordered to pay alimony by a Maryland court of competent authority, unless he has property in the state from which to pay the award. 1 He maintains that "the existence of property in Maryland belonging to the defendant is a jurisdictional prerequisite " to the exercise of the authority of the circuit court to grant alimony. (emphasis added). The basic problem with this argument is that it fails to take account of the distinction, recognized in Dackman, between the requirements of jurisdiction on the one hand and the substantive legal right of a spouse to recover alimony on the other. Thus while a court may have sufficient contact with the parties to exercise jurisdiction to award alimony, it may nevertheless be prevented from issuing such a decree if, under applicable state law, the petitioning party is not entitled to recover.

In order for a court to impose upon a defendant a personal liability or obligation in favor of the plaintiff, it must have first obtained jurisdiction over the person of the defendant. See Glading v. Furman, 282 Md. 200, 203, 383 A.2d 398 (1978); McSherry v. McSherry, 113 Md. 395, 400, 77 A. 653 (1910). This personal jurisdiction, in turn, may be exercised only if one of several jurisdictional "bases" exist. In Maryland these prerequisites to personal jurisdiction are largely dealt with by statute, and in particular Maryland Code (1974, 1977 Cum.Supp.), §§ 6-102 and 6-103 of the Courts and Judicial Proceedings Article. 2 Pursuant to § 6-102(a) of the Courts and Judicial Proceedings Article, a court of this state may exercise in personam jurisdiction over any "person domiciled in, served with process (while present) in, organized under the laws of, or who maintains his principal place of business in (Maryland)." Furthermore, § 6-102(b) provides that the bases enumerated in the preceding section are not exclusive; reliance on common law criteria is thus not precluded. At common law, a state also has power to exercise judicial jurisdiction over an individual who enters an appearance in an action either personally or through a duly authorized attorney. Cole v. Randall Park Holding Co., 201 Md. 616, 625, 95 A.2d 273, 41 A.L.R.2d 1084 (1953); Fairfax Forrest Mining and Manufacturing Co. v. Chambers, 75 Md. 604, 614-15, 23 A. 1024 (1892); Restatement (Second) of Conflict of Laws § 33 (1971). If any of the above predicates exists in a given case, the court possesses power to adjudicate the controversy, provided the defendant has been afforded reasonable notice of the proceeding and a reasonable opportunity to be heard. Restatement (Second) of Conflict of Laws § 25 (1971); see Miles v. Hamilton, 269 Md. 708, 713, 309 A.2d 631 (1973); Little v. Miller, 220 Md. 309, 315, 153 A.2d 271 (1959).

In this case, appellee sought a judgment against appellant for alimony. It is virtually axiomatic that a decree for alimony operates as an in personam judgment and thus is not binding on the person against whom it is passed unless the court has acquired jurisdiction over him. McSherry v. McSherry, 113 Md. at 400, 77 A. 653; see Keen v. Keen, 191 Md. 31, 36, 60 A.2d 200 (1948); Woodcock v. Woodcock, 169 Md. 40, 46-47, 179 A. 826 (1935). Since appellant not only was served with process while present in Maryland, albeit temporarily, but had also entered an appearance in the Montgomery County proceeding through local counsel, there can be no doubt whatsoever that the circuit court possessed full power to determine the merits of appellee's claim for alimony, despite appellant's unchallenged status as a domiciliary of Nevada.

Appellant's interpretation of our opinion in Dackman is misconceived. There the wife instituted suit for alimony in Baltimore City, seeking to obtain jurisdiction over her husband by constructive service in Nevada under former Code (1957, 1969 Repl. Vol.), Art. 75, § 95, now codified as § 6-102(a) of the Courts and Judicial Proceedings Article, on the theory that her spouse was still domiciled in Maryland. Meanwhile, the husband had obtained an ex parte Nevada divorce decree which incorporated a finding that the husband was a domiciliary of that state. Armed with his divorce decree, the husband moved to dismiss the pending Maryland proceeding, alleging a lack of personal jurisdiction over him. Even though the wife had failed to rebut the presumptively valid determination of domicile in the Nevada decree, the trial court denied the motion to dismiss. The husband thereupon appealed to this Court. Holding the denial of the husband's challenge to the trial court's jurisdiction to be a nonappealable order, we remanded the case for further proceedings. Nevertheless, we did take the opportunity to express our views on the viability of the wife's action for alimony in light of the prior Nevada divorce.

Under the facts in Dackman, it was clear that the trial court would have lacked power to issue an in personam decree ordering the husband to pay alimony. Since the husband had neither been served in Maryland nor had entered a general appearance here, the only remaining predicate for the exercise of personal jurisdiction over him would have been his putative Maryland domicile. Even this possibility, however, was negated by the contrary finding in the unimpeached Nevada decree. It was therefore necessary to consider an alternative ground on which to rest the power of the lower court to grant the requested relief.

We found such a basis for jurisdiction in the inherent authority of an equity court to sequester property within its jurisdiction as a source of support and maintenance to an otherwise eligible wife:

"Where the court cannot obtain jurisdiction in personam over the husband it may award support, if the wife proves misconduct or behavior which would justify granting her a divorce, payable from property of the husband within the court's jurisdiction." (emphasis added). 252 Md. at 345, 250 A.2d at 68.

In other words, the presence in Maryland of property belonging to the husband, coupled with other factors connecting the controversy with this state, such as the fact that Maryland was also the former marital domicile, the wife's present domicile, and the situs of the alleged marital wrong, provided sufficient contacts to warrant the exercise of a limited, quasi in rem jurisdiction over the nonresident husband. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); U. S. Industries, Inc. v. Gregg, 540 F.2d 142, 154 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1091 (1977). Under this theory, although the wife could not proceed directly against her spouse, she could obtain at least partial redress by having the court sequester or attach her husband's property in the state. Such a judgment would be binding on the defendant only to the extent of his property within the forum and would not...

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