Berlin v. Berlin

• Decision Date: 26 May 1965
• Docket Number: No. 271,271
• Citation: 210 A.2d 380,239 Md. 52
• Parties: Barbara F. BERLIN v. Joseph G. BERLIN.
• Court: Maryland Court of Appeals

Page 52

239 Md. 52

210 A.2d 380

Barbara F. BERLIN v. Joseph G. BERLIN.

No. 271.

Court of Appeals of Maryland.

May 26, 1965.

James J. Cromwell, Silver Spring (Clark & Cromwell and William G. Clark, Silver Spring, on the brief), for appellant.

Alger Y. Barbee and Charles C. Futterer, Rockville (Barbee & Starratt, Rockville, on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, SYBERT and BARNES, JJ.

HORNEY, Judge.

We are concerned on this appeal with the modification of a divorce decree in which custody of the minor children was awarded, subject to further order of the court, to the mother who was then domiciled in Maryland but who, along with the children, is presently residing in New York.

After the somewhat protracted and acrimonious divorce proceedings brought by the wife and mother (Barbara F. Berlin now Sands) against the husband and father (Joseph G. Berlin) had culminated in a written agreement between the parties concerning the support, custody and visitation rights with respect to the children, the Circuit Court for Montgomery County granted the wife an a vinculo divorce from her husband and awarded custody of the children to the mother with reasonable rights of visitation to the father in accordance with the agreement, subject, however, to the 'further order' of the court.

In addition to the specific provisions concerning the rights of the father to visit the children and the duration of each visit, the parties also agreed that the mother had the privilege of removing the children from the Washington area but that the father would be immediately notified of any change in residence. Although the parties had separated and the wife had moved into the District of Columbia before the divorce proceedings were heard, it was not until after the granting of the final decree that the mother moved to New York and took the children with her. Later, at his request, the attorney, who had represented the wife in the divorce proceedings, was permitted to strike out his appearance.

Sometime thereafter, the father, as he had done on prior occasions when disputes had arisen between the parties with respect to the children, filed a petition to have the mother cited for contempt for denying his rights of visitation. After it was discovered that her former counsel no longer represented the mother, the father filed a motion requesting the court to require her to employ new counsel on whom service could be made and for ex parte relief in the meantime from the support payments. The chancellor, in granting the relief sought, directed that a copy of the motion and the order thereon be mailed to the mother in New York by registered letter. When the letter was returned as 'refused,' the chancellor ordered copies of the petition and motion and the orders thereon served on her personally. The affidavit of service certifies that this was done, but the mother, despite the exigency of the orders of court, did not respond.

Subsequently, the father, alleging that the mother had failed to comply with the order of the lower court to employ new counsel and had continued to deprive him of his visitation rights, filed another petition in which, besides seeking to have the mother adjudged in contempt of court, sought to have custody of the children awarded to him. In a show cause order on this petition, the chancellor granted the relief prayed for unless cause to the contrary was shown on or before a specified date, and a copy of the petition and show cause order was directed to be served upon or mailed to the mother, but as before, she did not respond. Whereupon, she was adjudged to be in contempt of court and the sheriff of the county was ordered to take custody of the children pending an investigation by the county probation department with respect to the requested change in custody.

The chancellor, after considering the report of the probation department, found that it would be in the best interests and welfare of the children to award custody to the father and signed an order to that effect. The mother subsequently petitioned the chancellor to set aside and vacate the order changing custody, but the lower court, on the theory that, having awarded custody subject to further order, it had a continuing jurisdiction to modify the custody provisions in the divorce decree and that its jurisdiction had not been defeated by the removal of the children from the State, dismissed the petition of the mother.

Three contentions are made on appeal: (i) that the dismissal of the petition to set aside and vacate the order modifying the custodial award was improper because the lower court lacked jurisdiction; (ii) that the mother was denied procedural due process because she had not been given adequate notice of the proceeding; and (iii) that the lower court erred in changing the award of custody under the circumstances of this case.

(i)

The general rule in this and other states is that the domicile of a minor child, in case his parents are divorced, is that of the parent to whom legal custody has been awarded. Rethorst v. Rethorst, 214 Md. 1, 133 A.2d 101 (1957); Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952). But in this case, the real question, where the children were residing in another state and not personally before the court at the time the original award of custody was changed, is whether the lower court had power to modify the award. We think it did.

Code (1964 Cum.Supp.), Art. 16, § 66, besides conferring original jurisdiction on courts of equity in all cases relating to the custody of children, gives such courts the power to modify a decree or order passed by it with respect to the custody of such children. That a court of equity lacks authority to award permanent custody of children but has the power to exercise a continuing jurisdiction over their custody was clearly manifested by the decision in Alston v. Thomas, 161 Md. 617, 158 A. 24 (1932). See also Pitts v. Pitts, 181 Md. 182, 29 A.2d 300 (1942). While the mother recognizes the continuing jurisdiction of a court of equity over children who are the subject of its custodial awards, she insists that there can be no retention of jurisdiction over children who, although once domiciliaries of this State, have since become domiciliaries of another state. ¹ The mother would therefore have us apply the theory that since custody affects the status of the children a court of a state where the children are residing should be the one to exercise jurisdiction over them. We do not agree. Rather, we think that the lower court, instead of losing jurisdiction over the custody of the children, had a continuing jurisdiction to modify the custodial award which was not ousted by the removal of the children from Maryland.

Although we recognized the domicile rule set forth in the Restatement, Conflict of Laws, § 117, in Naylor v. Naylor, 217 Md. 615, 143 A.2d 604 (1958) and in Zouck v. Zouck, 204 Md. 285, 104 A.2d 573, 105 A.2d 214 (1954), we were not concerned in either of those cases, as we are here, with the modification of an award of custody made by a court which by its decree (pursuant to statute) had reserved the right to make further orders. Where we have said that jurisdiction to determine custody depends on the domicile of the child we were concerned with the power of the court to award custody in the first place.

The majority of courts in other states have adopted the continuing jurisdiction rule. We shall do likewise. The theory of this rule is that when a custody decree is subject to subsequent modification for any reason (either under the provisions of a statute or the terms of the decree itself), the jurisdiction of the court in the awarding state should remain notwithstanding the removal of the child to another state.

Most courts have applied the rule to situations where the parent to whom custody was awarded moves with the children out of the state having original jurisdiction while the other parent, who has visitation rights, remains a resident of the awarding state. See, for example, Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518 (1930); Tinker v. Tinker, 144 Okl. 97, 290 P. 185 (1930); Kern v. Lindsey, 182 Va. 775, 30 S.E.2d 707 (1944); Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739 (1948); and other cases collected in 4 A.L.R.2d 7. In...