Colby v. Colby

• Decision Date: 20 May 1958
• Docket Number: No. 215,215
• Citation: 141 A.2d 506,217 Md. 35
• Parties: Sarah P. COLBY v. Benjamin COLBY.
• Court: Maryland Court of Appeals

Page 35

217 Md. 35

141 A.2d 506

Sarah P. COLBY v. Benjamin COLBY.

No. 215.

Court of Appeals of Maryland.

May 20, 1958.

N. B. Frost, Washington, D. C. (Simpson & Simpson, Vivian V. Simpson and Joseph B. Simpson, Jr., Rockville, and Elizabeth R. Young, Washington, D. C., on the brief), for appellant.

James H. Pugh, Rockville, and Sheldon E. Bernstein and Newmyer & Bress, Washington D. C., for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, and HORNEY, JJ.

HORNEY, Judge.

This is an appeal from a determination by the Circuit Court for Montgomery County that a divorce a vinculo matrimonii obtained in Nevada by the appellant, Sarah P. Colby (the wife), was null and void, and that the appellee, Benjamin Colby (the husband), was entitled to a Maryland divorce a mensa et thoro.

Benjamin and Sarah Colby were married in Chicago in 1927, had three children, and lived together in Chevy Chase for over four years prior to March 4, 1955. On the latter date, the wife, without prior notice to her husband, took their fifteen year old daughter and went to the home of the wife's mother in Glencoe, Illinois, and immediately thereafter, went to Las Vegas, Nevada. The husband hired a detective in Washington, D. C., to go to Las Vegas and report on his wife's activities. The wife had been regularly corresponding with one Scott B. Appleby, and she had discussed with his Washington attorney her plans for a trip to Nevada. Immediately upon her arrival in Las Vegas, she consulted an attorney, with whom arrangements had previously been made by Appleby's attorney. On March 20, the husband went to Las Vegas to see his wife, returned to Montgomery County, but went back to Las Vegas in April to consult a lawyer who was to inform him if a divorce proceeding was filed. In the meantime the wife made a return train reservation for April 25th but subsequently cancelled it, and on April 19, 1955, exactly six weeks after her arrival, she filed suit for a divorce in Nevada on the ground of extreme mental cruelty. She made plans to return to Washington after the divorce proceedings by making a reservation at a Washington hotel. On June 9, the husband was served in Washington with Nevada process, and twenty-one days later, the Nevada court granted a decree of divorce.

On July 12, the wife went to Glencoe, and two weeks later wrote to her husband requesting him to put the title to their home in her name, so that she could stay there. In August, she returned to Washington and rented a house on Utah Avenue. On September 21, the husband filed his bill for a partial divorce on the ground of abandonment. The wife, when served with process, answered that the decree of the Nevada court had already divorced the parties. In October of 1955, she returned to Las Vegas and rented another apartment there, but still kept her Utah Avenue house in Washington. In December, she went back to her mother's home in Illinois and then returned to Washington. In January of 1956, she again reversed her route by going to Illinois and then to Las Vegas. Finally, on February 21, 1956, she married Appleby in Las Vegas. In 1957, the chancellor in Maryland found that Sarah Colby had not in fact been divorced, and then awarded a partial divorce to Benjamin Colby.

There is considerable evidence in the record to substantiate the chancellor's conclusion that the wife was not a bona fide domiciliary of Nevada. Although she was accustomed to living in a spacious private home in Maryland, she resided in a meager apartment in Nevada and never made an attempt to purchase a home there. Although she had many philanthropic interests in Maryland and Washington, she had none in Nevada. Although most of her relatives and friends lived in the east, none of her relatives or close friends lived west of the Mississippi. Her three children went to eastern schools, and she had no intention of taking them to Nevada for schooling. When she rented an automobile in Nevada, she gave a Maryland address. Her only belongings in Nevada were kept in two suitcases; the rest of her clothing remained in Chevy Chase. She never changed her permanent mailing address to Las Vegas. And she retained her charge accounts in Washington stores and opened no accounts in Nevada.

The primary issue in this case is whether the husband is estopped from collaterally attacking the decree of the Nevada court. The wife insists that since the husband actually went to Nevada on two different occasions before the Nevada decree was entered, he could have accepted service there and raised at that time any meritorious defenses he may have had. Her argument is that he 'flouted' the Nevada court by making certain that he would not be served in that state. In other words, because he had the opportunity to raise the jurisdictional question in Nevada without any hardship to himself, he should be thereafter barred from collaterally attacking the Nevada decree. The husband, on the contrary, contends that the wife's claim of 'estoppel' is specious. The novel theory advanced by the wife is without merit.

First, the record clearly shows that although the husband was in Nevada during March of 1955, and at another time on April 17 or 18, 1955, the divorce suit filed by the wife was not instituted until April 19, 1955, after the husband's brief sojourn in Nevada. In other words, from the factual point of view, the husband was not in Nevada when his wife filed suit and therefore did not have the 'opportunity' referred to by the wife to defend the action on the jurisdictional question. Of course, he could have remained in Nevada to contest the suit but there is no evidence that he definitely knew when the wife would file suit. Besides he was under no legal compulsion to remain.

Second, it could be argued that the husband had the opportunity to employ a Nevada attorney to contest the divorce. Such an opportunity, however, was not sufficient to bar the husband from subsequently attacking the decree collaterally in this State. The same opportunity was afforded the defendants (Carrie Williams and Thomas Hendrix) in the two Nevada divorce proceedings referred to in the noted Williams cases--Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, and 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577. And yet the Supreme Court permitted a collateral attack on the Nevada decrees in the subsequent prosecutions for bigamy of the respective spouses of the defendants in the Nevada proceedings (O. B. Williams and Lillie Shaver Hendrix), who later married in Nevada and returned to North Carolina to reside.

Third, the Supreme Court has expressly delineated the kinds of situations which will estop an absent defendant from relitigating the jurisdictional issue, and the instant case does not fall within any of the previously stated situations. In Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, one of the leading cases, the wife left her husband in Massachusetts and went to Florida with their two children. She obtained employment there, and placed one child in school. She informed her husband that she did not intend to return. After a three months' residence in Florida, she filed suit for a divorce. The husband retained Florida counsel, entered a general appearance, denied that his wife was domiciled in Florida, and appeared personally at the hearing to testify concerning the custody of the children. At the trial, however, counsel for the husband did not cross-examine the wife on the issue of domicile, nor did he offer any rebutting evidence. The court granted the divorce, and no appeal was taken. The wife remarried two days after the divorce and remained in Florida with the second husband for awhile. They then returned to Massachusetts. The first husband instituted a proceeding in Massachusetts attacking the validity of the Florida decree. The Massachusetts courts, in finding for the...