Brewster v. Brewster

• Decision Date: 13 May 1955
• Docket Number: No. 117,117
• Parties: Kingman BREWSTER v. Theo Urch BREWSTER.
• Court: Maryland Court of Appeals

Page 193

207 Md. 193

114 A.2d 53

Kingman BREWSTER v. Theo Urch BREWSTER.

No. 117.

Court of Appeals of Maryland.

May 13, 1955.

Rehearing Denied June 21, 1955.

Stedman Prescott, Jr., Silver Spring, and Meredith R. Hoffmaster, Baltimore (Staley & Prescott, Silver Spring, Eugene M. Feinblatt and Gordon & Feinblatt, Baltimore, on the brief), for appellant.

Robert E. Clapp, Jr., Frederick, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

On the former appeal in this case, reported in 204 Md. 501, 105 A.2d 232, we reversed a decree of the Chancellor entered on November 10, 1953, for a sum representing past due alimony under a decree of divorce a mensa passed on June 26, 1951, and holding the husband in contempt. Our decision was based on the fact that, in his answer to a petition praying the relief granted, the appellant had set up an absolute divorce obtained by him in Arkansas on July 2, 1951, supported by an exemplified copy thereof. No testimony was taken on the petition and answer, and we held that unless and until the Arkansas decree was judicially impeached and declared to be invalid it was entitled to full faith and credit and would oust the jurisdiction of the Maryland court over a marriage status that had been effectually dissolved. We remanded the case in order that the Chancellor might pass on the validity of the Arkansas decree.

The present appeal is from an order and decree passed on September 15, 1954, declaring the Arkansas decree to be void, entering a money decree for past due alimony, ordering the transfer of certain stock certificates to the wife and the delivery to her of certain personal property, directing the payment of various counsel fees and costs, and holding the husband in contempt for defiance of various orders passed in the cause.

The appellant now contends that neither he nor his wife was domiciled in Maryland after 1946, and hence that the Maryland court had no jurisdiction over him or their married status from the inception of the proceedings. This is an extraordinary contention, for the record shows that he filed the original bill for divorce alleging desertion, on April 6, 1950, which he later dismissed, and on April 12, 1950, he filed a bill for divorce on the ground of voluntary separation, in the Circuit Court for Frederick County. In each of these bills he alleged that he was a resident of Frederick County and had been so for more than two years last past. He alleged that the respondent was a non-resident of Maryland, residing at 2500 Q Street, Washington, D. C. Mrs. Brewster appeared and filed a cross-bill, alleging desertion on his part, in which she alleged that she was a resident of Maryland. In his answer to the cross-bill he again alleged that he was a resident of Maryland.

The case being at issue, the appellant testified under oath, before an examiner, that he was then residing at Catoctin Lodge, Thurmont, Maryland, and had resided in Frederick County for more than two years past. He also testified that he bought a hunting lodge and a farm in Maryland in 1931, and that the lodge was 'more than a summer home'. In fact, it was a rather elaborately furnished year-round house and guest house, and the farm consisted of some 1,200 acres, chiefly mountain land. In 1943 he bought a home and lived in Frederick, but sold it in 1946. Thereafter he maintained an apartment in Washington, but he testified that he had no intention at that time of surrendering his Maryland domicile. The appellant was a practicing lawyer and tax consultant with offices in the District of Columbia. He had written a number of books on the tax laws. He testified: 'I have been adjudicated by the Tax Court of the District of Columbia as a resident of Maryland.' He continued to use the lodge for vacations and weekends with his wife and daughter, or for the entertainment of clients. The title to the lodge and farm were subsequently placed in the name of separate Maryland corporations, all of the stock of which was issued in his wife's name, and of which he was officially designated as the resident agent. He testified that he was a registered voter in Frederick County, and it was shown by the record that he voted there in the general election of 1950, although he swore that he had not voted since 1948.

Mrs. Brewster testified that her husband had always claimed a Maryland residence, and that she did too, because her residence was that of her husband. She testified she was also registered as a voter in Maryland and had frequently stayed at the lodge. There was thus evidence in the sworn testimony of both parties that one or both of them had established a residence in Maryland and maintained it at the time of the hearing, corroborated by other relevant circumstances. We think the Chancellor was fully justified in assuming jurisdiction over the subject matter and the parties, implicit in the passage of the decree a mensa, even if we assume, without deciding, that the question is open at this stage of the case, after a previous appeal in which the point was not raised, and a remand for the limited purpose of adjudicating the validity of the Arkansas decree. See Plank v. Summers, 205 Md. 598, 109 A.2d 914, and Restatement, Judgments, Sec. 10. There is authority for the proposition that the appearance of both parties operates as an estoppel to subsequently contest the facts upon which jurisdiction is rested. See Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, and de Marigny v. de Marigny, 196 Misc. 719, 92 N.Y.S.2d 217. The fact that the appellant now has the temerity to argue, in effect, that he testified falsely in the proceeding leading to the prior appeal, does not require a reopening of the enrolled decree, Ewald v. Ewald, 167 Md. 594, 597, 175 A. 464, but rather reflects upon the veracity and good faith of his affidavits in the present appeal.

The appellant appears to argue that even if the Maryland court had jurisdiction in the first instance, its jurisdiction was ousted when he left the State, regardless of whether he established a residence in Arkansas or elsewhere. But the rule is that domicile, once established, continues until it is shown to have been changed to another definite location. Shenton v. Abbott, 178 Md. 526, 15 A.2d 906. And it is well settled that the jurisdiction of an equity or divorce court, once acquired, continues until all matters in litigation are finally disposed of. Restatement, Conflict of Laws, Sec. 76. In Comment C. (1948 suppl.) it is stated: '* * * A change in domicil of the parties or other changes in circumstances does not destory the jurisdiction, but may lead the court in a reasonable exercise of discretion to refuse to exercise jurisdiction. * * *' See Illustrations 3. and 4., applying the rule specifically to support orders. See also McSherry v. McSherry, 113 Md. 395, 77 A. 653.

The only substantial question raised on this appeal is the correctness of the Chancellor's finding that the Arkansas decree was invalid. It is argued that domicile is a question of intention and that the evidence shows clearly that the appellant intended to, and did in fact, establish his domicile in Arkansas. It is conceded that the Maryland court may inquire into the question of domicile where the recognition of a foreign divorce, obtained without personal appearance of the adverse party, is involved. Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146, and cases cited. See also Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957, and Esenwein v. Commonwealth, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608. See also Epstein v. Epstein, 193 Md. 164, 66 A.2d 381, and Slansky v. State, 192 Md. 94, 63 A.2d 599.

Here it was shown that the appellant only claimed an Arkansas domicile after he became aware that the...