Bartell v. Bartell
Decision Date | 10 September 1975 |
Docket Number | No. 88,88 |
Citation | 28 Md.App. 180,344 A.2d 139 |
Parties | Daniel L. BARTELL v. Eileen BARTELL. |
Court | Court of Special Appeals of Maryland |
Alan I Baron, Baltimore, with whom were Peter F. Axelrad and Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief, for appellant.
Joseph S. Kaufman, Baltimore, with whom were Arnold M. Weiner, and Steven P. Resnick, Baltimore, on the brief, for appellee.
Argued before ORTH, C. J., and MENCHINE and MOORE, JJ.
The principal question presented on this appeal is whether the appellant-husband 'procured' his own absence within the meaning of Maryland Rule 413 and thus rendered inadmissible his deposition-duly taken in edmonton, Alberta, Canada-at an evidentiary hearing before the Circuit Court for Baltimore County (Raine, J.) to determine the question of lack of personal jurisdiction, raised as a preliminary objection under Maryland Rule 323. The Chancellor excluded the deposition. He also held that a written communication to appellant's wife and one to his professional associate were inadmissible. We find reversible error in these rulings.
Factual and Procedural Background.
Appellant, Daniel L. Bartell, D. D. S., and his wife, Eileen were married in Baltimore on December 21, 1952 and had two daughters, 18 and 15 years of age. On June 1, 1974, without any prior notice to or communication with his wife, Dr. Bartell left her and the children. A letter from him to Mrs. Bartell was hand-delivered to her by a stranger after his departure. 1
On July 25, 1974, Mrs. Bartell filed a bill of complaint for alimony, support and custody, based upon alleged adultery, abandonment and desertion. Simultaneously, she sought and obtained an Ex Parte Injunction 2 and an Order for the appointment of a special process server on the ground that the husband was 'temporarily residing in Alberta, Canada.' Dr. Bartell was subsequently served on August 8, 1974 in the Town of Slave Lake, Province of Alberta, Canada and thereafter challenged, by Motion Raising Preliminary Objection, the court's jurisdiction over his person. A supporting affidavit recited inter alia his residence in the Town of Slave Lake prior to the institution of his wife's action, that he intended to remain permanently in Alberta and not to return to Maryland, and that he was a licensed dentist in Canada and had established dental practice in the Town of Slave Lake.
After an apparent conference in Chambers with counsel for the respective parties, Judge Raine filed a Memorandum and Order on September 30, 1974 in which he ruled that it was inappropriate, in the face of objection, to decide the jurisdictional issue on the basis of affidavits. A suggestion by Dr. Bartell's counsel that he be deposed in Canada was rejected. Judge Raine's Memorandum stated:
(Emphasis added.)
An evidentiary hearing on the 'sole question of Dr. Bartell's domiciliary status' was thereafter scheduled for December 2, 1974. In mid-November, however, counsel for Dr. Bartell filed (1) a notice for the taking of his deposition in Edmonton, Canada on November 19, 1974 and (2) a motion for the appointment of a Commissioner to take testimony. Paragraph 5 of the latter motion stated:
'It is both necessary and convenient for such commission to be issued by this Court in that this Court does not have personal jurisdiction over Daniel L. Bartell sufficient to require his attendance in Maryland and Daniel L. Bartell cannot and will not be present at the scheduled hearing.' (Emphasis added.)
Counsel for Mrs. Bartell responded with alacrity, filing a Motion for Protective Order under Mr. Rule 406 a(10) on the day the deposition notice was received. 'Hardship, oppression or undue expense' was claimed because of the cost of transportation and lack of funds to employ counsel. The Chancellor (a) signed an Order that the clerk issue the Commission to take testimony as prayed and (b) denied the wife's motion for a Protective Order, with the following hand-written disposition, dated November 13, 1974:
(Emphasis added.)
Dr. Bartell's deposition was thereafter taken by his local counsel in Edmonton, Mrs. Bartell not being present nor represented by counsel. At the hearing on December 2, 1974 on the husband's preliminary objection, his Maryland counsel presented a written motion to The motion was denied and the testimony of Mrs. Bartell and five other witnesses was taken, with counsel for Dr. Bartell participating. The matter was held sub curia and on December 5, 1974, Judge Raine denied the husband's motion in a memorandum opinion. With respect to the exclusion of the deposition, the Chancellor wrote:
(Emphasis added.)
The evidence adduced on behalf of the wife at the hearing was then summarized and the court's memorandum concluded:
(Emphasis added.)
Appellant did not thereafter file an Answer to the Bill of Complaint and a Decree Pro Confesso was entered on December 31, 1974. The Examiner-Master, after the taking of testimony ex parte, concluded that abandonment had been established 3 and recommended an award of alimony of $250 per week and the sum of $100 per week for maintenance and support of the minor daughter, Wendy. On February 20, 1975, Judge Raine signed a Decree awarding alimony and support in the amounts recommended, granting custody of the minor child to the wife and ordering that the property and assets of Dr. Bartell, located within the State of Maryland, would be liable for the payment of alimony and support and enjoining their removal or other disposition. 4
On this appeal, we are importuned by both sides to resolve the ultimate issue, viz., whether or not the trial court properly exercised personal jurisdiction over Dr. Bartell. Such jurisdiction did not attach unless appellant was a Maryland domiciliary at the time the suit was filed and at the date of service in Canada. See Code, Cts. & Jud. Proc. Art. Sec. 6-102 (1974); Dackman v. Dackman, 252 Md. 331, 250 A.2d 60 (1969). For the reasons next stated, we do not decide that question.
Proof of Domicile and of Change of Domicile.
In his carefully constructed Memorandum, the Chancellor summarized as follows the evidence adduced at the evidentiary hearing on the question of Dr. Bartell's domicile:
These facts were characterized by the Chancellor as 'traditional indicia of domicile' which, he concluded, supported the wife's claim that he was still legally domiciled in Maryland and shifted to the husband the burden of establishing a change in his domiciliary status.
Without necessarily entering the thicket of burden of proof and presumptions, 5 we think it correct to say that, in Maryland, where the issue of personal jurisdiction is contested, the party asserting such jurisdiction bears the burden of proving its elements by a preponderance of the evidence. Vitro Electronics v. Milgray Electronics, Inc., 255 Md. 498 507, 258 A.2d 749 (1969). It is also well settled in Maryland that a person's domicile remains the same until he acquires a new residence with an intention to remain there indefinitely and that the burden of proof rests on the party who...
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