Bartell v. Bartell
Decision Date | 25 May 1976 |
Docket Number | No. 124,124 |
Citation | 278 Md. 12,357 A.2d 343 |
Parties | Eileen BARTELL v. Daniel L. BARTELL. |
Court | Maryland Court of Appeals |
Gary I. Strausberg and Joseph S. Kaufman, Baltimore (Arnold M. Weiner Baltimore, on the brief), fpor appellant.
Alan I. Baron and James A. Rothschild, Baltimore (Peter F. Axelrad and Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES and LEVINE, JJ.
In this quarrel between a husband and a wife the issues presented to us for determination are out of the ordinary.
Appellee, Daniel L. Bartell (Dr. Bartell), and appellant, Eileen Bartell (Mrs. Bartell), were married in Baltimore in 1952. He left his wife and their two teenage daughters on June 1, 1974. The parties at that time were residing in Baltimore County, where they had resided for a number of years.
On July 25, 1974, Mrs. Bartell filed a bill of complaint charging desertion and adultery. She sought permanent alimony, alimoney pendente lite, custody of the children, support of the children, and counsel fees. She also asked for an ex parte injunction aimed at restricting the removal of Dr. Bartell's assets from the State. That petition alleged that he had fled the jurisdiction and was then located in the Province of Alberta, Canada. On August 8, at Slave Lake, Alberta, Dr. Bartell was served, by a private process server, with the bill of complaint, the show cause order passed relative to alimony pendente lite, the petition for injunction, and the order on that petition. He promptly filed a motion raising preliminary objection on the ground that he was 'a resident and domiciliary of Alberta, Canada at the time this suit was instituted,' that he had 'not been served in Maryland, nor ha(d) he consented to the jurisdiction of (the Circuit Court for Baltimore County).'
The motion raising preliminary objection came on for hearing before Judge Raine. He said:
Notwithstanding the chancellor's ruling on the matter of a deposition, counsel for Dr. Bartell filed a motion on November 14 under Maryland Rule 403 c for a commission to take Dr. Bartell's testimony at Slave Lake. Mrs. Bartell countered with a motion under Rule 406 for a protective order that the deposition not be taken or, in the alternative, that Dr. Bartell pay in advance the cost and expense of having her attorney present at the deposition. To this the chancellor said:
The deposition was taken. An evidentiary hearing on the motion raising preliminary objection was held before Judge Raine on December 2. On December 10 Dr. Bartell 'move(d) the Court to rescind its prior Order of September 30, 1974, as reordered on November 13, 1974, and to permit the introduction into evidence at the hearing on (his) Motion Raising Preliminary Objections (of his) deposition.' On December 10 Judge Raine filed a memorandum denying the motion raising preliminary objection. He referred to the fact that he 'ha(d) excluded certain items of evidence proffered by (Dr. Bartell) in his effort to sustain his objection to the jurisdiction.' The memorandum said relative to the two matters here in issue:
Ultimately a decree was passed awarding Mrs. Bartell permanent alimony, custody of the minor children, support for those children, and counsel fees. The decree provided that certain assets in Maryland should be liable for the alimony and support payments and enjoined their removal from the jurisdiction.
Dr. Bartell appealed to the Court of Special Appeals, contending that the chancellor had erred in excluding the deposition and certain of Dr. Bartell's writings. That court reversed in Bartell v. Bartell, 28 Md.App. 180, 344 A.2d 139 (1975). We granted the writ of certiorari for the purpose of considering these two matters. We shall reverse the ruling relative to the deposition and vacate the ruling relative to Dr. Bartell's writings.
We are here concerned with Maryland Rule 413 a 3(2). It provides in pertinent part:
'The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had due notice thereof, if the court finds:
'(1) . . .
'(2) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition . . ..'
The only difference between this rule and Deposition Rule 11, adopted by our predecessors in 1941, is that the word 'State' now appears where 'jurisdiction' formerly appeared. The finding required of the court by the federal counterpart, Fed.R.Civ.P. 32(a)(3)(B) is 'that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States . . ..' This provision for use formerly was found in Fed.R.Civ.P. P. 26(d)(3).
We said in Gillespie v. R & J Constr. Co., 275 Md. 454, 341 A.2d 417 (1975):
Id., 275 Md. at 457, 341 A.2d at 418.
This would be equally applicable to interpretation of a rule.
This Court has not previously interpreted this portion of this rule. Snowhite v. State, Use of Tennant, 243 Md. 291, 308-09, 221 A.2d 342, 352 (1966), concerned another part of Rule 413(a). Judge Barnes there said for the Court that we
Some of the discussion of the federal rule has involved the question as to whether 'absence' refers to absence from the geographical territory or absence from the trial, a point with which we do not need to concern ourselves. See, e. g., J. Moore, Federal Practice 32.05(1) at 32-28 to 32-30 (1976); and 8 Wright & Miller, Federal Practice and Procedure: Civil § 2147 (1970).
One of the earliest cases to apply the federal rule was Weiss v. Weiner, 10 F.R.D. 387 (D.Md.1950), an action for an alleged breach of contract in which the defendant had agreed to sell the plaintiff a certain quantity of sheet steel. The plaintiff, disappointed in the size of the verdict returned by the jury, moved for a new trial. One of the grounds asserted was error in the admission of the defendant's deposition at trial. He was a former resident of Maryland then residing in Florida where he had resided for a number of months prior to the institution of the suit. Judge Chesnut held that the requirements of Fed.R.Civ.P. 26(d)(3) were ...
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