Apenyo v. Apenyo

• Citation: 202 Md.App. 401,32 A.3d 511
• Decision Date: 02 December 2011
• Docket Number: Sept. Term,2010.,No. 1461,1461
• Parties: Mabel Y. APENYO v. Kofi APENYO.
• Court: Court of Special Appeals of Maryland

202 Md.App. 401

32 A.3d 511

Mabel Y. APENYO

v.Kofi APENYO.

No. 1461

Sept. Term

2010.

Court of Special Appeals of Maryland.

Dec. 2, 2011.

John H. Doud, III, Baltimore, MD, for Appellant.

Jill H. Breslau (Thyden, Gross & Callahan, LLP, on the brief), Chevy Chase, MD, Appellee.

Panel: JAMES R. EYLER, WRIGHT, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

As Judge Lowe philosophized for this Court in Schwartz v. Schwartz, 26 Md.App. 427, 428, 338 A.2d 386 (1975), “Conflicts among courts of the States cannot be avoided when litigants are jurisdictional nomads.” A perennial problem with jurisdictional nomads is that they inevitably produce jurisdictional collisions. It is to avoid such collisions that we invoke what is at best loosely referred to as “comity.” In Hilton v. Guyot, 159 U.S. 113, 163–64, 16 S.Ct. 139, 40 L.Ed. 95 (1895), the Supreme Court discussed its essential meaning:

Although the phrase has been often criticized, no satisfactory substitute has been suggested.

“Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Black's Law Dictionary (6th ed. 1990) 267 defines “comity” as:

the principle in accordance with which the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect.

Far from being a precise legal precept, comity is essentially a flexible philosophical approach or psychological attitude that must adapt itself to the varying configurations of at least a dozen significantly different types of jurisdictional collision. This case is one of them.

The appellant, Mabel Apenyo (“Wife”), appeals from the ruling of Judge Angela M. Eaves in the Circuit Court for Harford County, dismissing her complaint for divorce. The single contention raised is that Judge Eaves abused her discretion by granting the motion of the appellee, Kofi Apenyo (“Husband”), to dismiss his Wife's complaint.

An Immigrant Family's History

The Husband and the Wife are both natives of Ghana. They were married in Ghana on April 30, 1995. Two children were born to the marriage: Tsikata, born on October 5, 1995, in Ghana; and Dede, born on October 2, 1999, also in Ghana. The Husband and Wife, with the children, moved to Harford County, Maryland in 2002. The daughter, Dede, however, now 12 years of age, was, after only a year in the United States, sent back to Ghana to live with relatives in 2003. Both the Husband and the Wife became naturalized United States citizens. By 2009, the marriage had deteriorated, and on July 1, 2009, the Husband returned to Ghana, taking with him his son, Tsikata, now 16 years of age.

Counterpunching Divorce and Custody Petitions

The return of the Husband to Ghana while his Wife remained in the United States ultimately produced two separate divorce actions, each with an accompanying petition for child custody, five thousand miles and 28 days apart. On August 31, 2009, the Husband filed in a circuit court in Ghana his petition for a divorce and for the custody of both children. While the Wife was in Ghana shortly thereafter because of the death of her father, she was served with a copy of the Husband's divorce petition. On September 3, 2009, counsel for the Wife filed a Notice of Appearance in the Ghana court, and, on September 6, 2009, filed on the Wife's behalf her motion to have the divorce petition dismissed on the ground that the Ghana court had no jurisdiction over the matter. In a seven-page ruling filed on April 15, 2010, the Ghana court found as a matter of fact that the Husband intended to make Ghana his permanent home and that it was, therefore, his official domicile.

“In the present case, even though the Petitioner/Respondent and the wife had lived for sometime outside their domicile of origin, the Petitioner by a series of overt acts, has exercised his right of choice of domicile, by relocating to Ghana, with his two children with the intention of making Ghana, and for that matter Kpando which was once his domicile of origin as his domicile by choice. The conduct [of] leaving his job, bringing down to Ghana his only two children, putting them in school, and also abandoning his living apartment in the U.S. after shipping out of that country his personal belongings, [we] can reasonably conclude that the Petitioner/respondent herein intends to make Ghana his birth place, a permanent home. In that event, his present action before this Court is in conformity with the requirements of the provisions of Act 367 of 1971.”

(Emphasis supplied). The Wife's Motion to Dismiss the divorce action was, accordingly, denied. Thus, divorce and custody petition # 1.

The Wife, upon her return to Harford County, on September 28, 2009, filed in the Circuit Court for that County her petition seeking a divorce from the Husband and also asking for the custody of both children. The Husband was served in Ghana on October 28, 2009 with a copy of that petition. Thus, divorce and custody petition # 2.

Dismissing the Later Claim

On March 26, 2010, the Husband filed in Harford County his Motion to Dismiss the Wife's divorce complaint on the ground that his earlier filed divorce complaint was then pending in the courts of Ghana and took precedence over the later filed petition. On July 26, 2010, Judge Eaves, upon the Wife's request, conducted a hearing on the motion. The Wife's petition for divorce was dismissed, and this appeal challenges that dismissal.

An Editorial Prologue

At the outset of this discussion, let us make one thing absolutely clear. This Court is not the attorney for the Wife. We have no intention, therefore, of engaging in a wide-ranging examination of two partially overlapping but very complicated jurisdictional inquiries—one involving divorce cases and the other involving child custody cases. We are not going to raise on behalf of the Wife every conceivable issue that might plausibly have been raised and then to answer those hypothetical challenges one by one. We will respond to the precise arguments expressly made in the Wife's brief or at the hearing conducted on July 26, 2010 and go no further.

The Appellant's Brief

Six pages of the Wife's nine-page appellate brief are directed to her single undifferentiated contention:

The Chancellor abused her discretion in granting Defendant's Motion to Dismiss.

Of these six pages, fully two of them are devoted to an issue that has nothing to do with this case. The Wife treats the Husband's Motion to Dismiss as if it were a Motion to Dismiss pursuant to Maryland Rule of Procedure 2–322(b)(2), based upon the failure to state a claim. What was before Judge Eaves, by contrast, was not a Motion to Dismiss for the failure to state a claim. It was a Motion to Dismiss for the totally different reason that a similar claim had already been filed and was then pending in another jurisdiction. That part of the Wife's brief actually pertinent to the issue before us is thereby reduced to four pages.

An Immaterial Sensitivity

The consistent theme running through the rest of the Wife's brief is her obsessive sensitivity to her Husband's service of process upon her during her short trip to Ghana. It was he who first informed her that her father was dying. That information, however, was sadly true, whatever the Husband's purpose may have been in communicating it. The father was, indeed, dying. A copy of the Husband's divorce complaint against her was served on the Wife as she left the mortuary following her father's death.

The Wife now asserts that the “egregious circumstances” of his obtaining service could, ipso facto, invalidate an otherwise valid Ghana judgment: “Even if there were a Ghana judgment, it would seem that it is subject to collateral attack in Maryland under the egregious circumstances in which appellee invoked the Ghana Court.” A page deeper into the argument, the Wife returns to this theme: “Maryland law generally frowns upon underhanded means of obtaining service.” She finally disparages the Ghana court system itself as one not entitled to comity because it countenanced the “admitted conduct” of the Husband in somehow getting his case before the Ghana court: “Indeed, the very fact that the Ghana court would allow the Appellee to proceed in the face of the admitted conduct that brought him to that Court implies that it is not in conformity with Md.Code Ann. ‘FL’ § 9.5–208.”

There is no legal merit in the contention. The behavior of the Husband in serving process on his Wife as she stood by her father's bier might be considered, by English cricket standards, to be insensitive, ungallant, and unsporting, but it is not, by American legal standards, fraudulent. Fisher v. McCrary Crescent City, L.L.C., 186 Md.App. 86, 104–08, 972 A.2d 954 (2009). The Wife, for good reason of her own, was on the jurisdictional turf of Ghana and she was there vulnerable to the service of process. To be opportunistic is not, ipso facto, to be fraudulent.

The proper place in which to litigate the adequacy of personal service in Ghana, moreover, would seem to be in the courts of Ghana. As a matter of fact, the Wife filed a motion in the Ghana court on September 6, 2009, in which she challenged the jurisdiction of the Ghana court over the case. The Ghana court, however, ruled against her. What this Court held in Schwartz v. Schwartz, 26 Md.App. 427, 431, 338 A.2d 386 (1975), albeit in a state versus state setting, has at least presumptive persuasive authority here:

By participating in the Florida custody hearing, Mrs. Schwartz had a full opportunity to contest the jurisdiction...