Dackman v. Dackman

• Decision Date: 07 February 1969
• Docket Number: No. 48,48
• Citation: 250 A.2d 60,252 Md. 331
• Parties: Bernard DACKMAN v. Barbara S. DACKMAN.
• Court: Maryland Court of Appeals

Page 331

252 Md. 331

250 A.2d 60

Bernard DACKMAN v. Barbara S. DACKMAN.

No. 48.

Court of Appeals of Maryland.

Feb. 7, 1969.

H. Emslie Parks, Baltimore (Parks & Parks, Baltimore, on the brief), for appellant.

Richard R. Beauchemin, Baltimore (Arnold, Beauchemin & Dilli, Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

When the bonds of matrimony which have endured for years are severed unilaterally by the husband when he becomes infatuated with another female, the indignity his spouse feels has been heaped upon her often may result in her determination to acquire from him financial support, the adequacy of which she measures by that indignity and, if he seeks a divorce to legitimatize his amour, the measure is weighted by her righteous duty to exact the toll that public morality demands. In such cases the price of the right to remarry may become so high that the husband may take counter measures reflecting the philosophy that the best defense is a strong offense.

In this context we approach the problems of the appeal before us.

The appellant husband and the appellee wife were married in 1951 and lived together in or near Baltimore until late in 1967, when the husband went to Nevada on November 21 with his new found love, and established residence. He filed suit for divorce on January 15, 1968, some eight weeks after he arrived, and on February 14 next was granted a divorce, and promptly married his paramour. The wife did not submit to the jurisdiction of the Nevada courts and was not summoned in Nevada.

On December 21, 1967, while the husband was establishing his Nevada domicile, the wife filed a suit in the Circuit Court No. 2 of Baltimore City seeking permanent alimony on the basis of his adultery, and custody of and support for the four children of the couple. She also filed a petition for an ex parte injunction against the husband and various other persons and corporations to prevent him from disposing of or removing from the State his considerable assets, which the court issued, and a petition praying that a designated resident of Nevada be authorized to serve upon the husband personally the subpoena of the Circuit Court No. 2, requiring him to answer the bill for alimony and to serve upon him personally also the petition for the ex parte injunction and the order of court thereon, and an order nisi for alimony pendente lite which the court had signed. ¹

The husband was personally served in Nevada on December 26, 1967, but not by the individual designated in the order. Thereafter, the husband filed a motion to dismiss the proceedings because the court had no jurisdiction over the person of the husband, and the wife filed a petition alleging the adultery of the husband, his intention to establish a false domicile in Nevada, that he is still a resident of Maryland, that all his property and business are here, that he owns property valued at $250,000, including some 80 rental properties in Baltimore and Baltimore County, and prayed that a trustee be appointed to take possession of and manage all of her husband's property within the jurisdiction of the court and pay her $250 a week for her support and maintenance and that of the children.

The record before Judge Wolf on the motion to dismiss, including the wife's testimony, shows that the husband was living in Maryland when he married in 1951 and continued to live here with his wife until 1967. He is a member of the Maryland Bar and a current contributor to the Clients' Security Trust Fund; he had two offices in Baltimore and was Chairman of the Board and a very large stockholder of National City Bank, the principal office of which is in Baltimore. Soon after he went to Nevada, he resigned as an officer of the Bank and has sold most, if not all, of his stock. He is an officer, director and stockholder of other financial and real estate corporations. He had attempted to have his wife agree to his changing marital partners and when she refused immediately left for Reno, from whence he called her twice in the week after his arrival-the first time again to ask for a divorce and the second to say that if she would write him saying she would agree to a divorce he would return to Baltimore. He has continuously remained in Nevada since the divorce. The record also shows that there was admitted in evidence at the instance of the wife the record of the findings of fact and conclusions of law of the Second Judicial District Court of the State of Nevada in and for the County of Washoe which granted the husband an absolute divorce in his suit against the wife. The findings of fact were:

'That the Plaintiff for a period of more than six (6) weeks immediately before the filing of this suit, with the bona fide intent to make Nevada his home for an indefinite period of time, has resided and been physically present and domiciled in the State of Nevada, and now so resides and is so domiciled therein; that all of the allegations contained in Plaintiff's Complaint are true.'

The conclusions of law were that 'the Court has jurisdiction of the Plaintiff and Defendant and of the subject matter herein, and the Plaintiff is entitled to an absolute and final Decree of Divorce * * *.'

Judge Wolf held that the husband was a domiciliary of Maryland at the time he was served on December 26, 1967, and that therefore was subject to the 'long arm' provision of Code (1965 Repl. Vol.), Art. 75, § 95, under the subtitle 'Bases of Personal Jurisdiction over Persons outside this State' ('A court may exercise personal jurisdiction over a person domiciled in * * * this State as to any cause of action').

Judge Wolf held further that although the court had personal jurisdiction over the husband it could not grant interlocutory injunctive relief under Maryland Rule BB71 c under the subtitle 'Injunction' because that rule provides under the heading 'Domestic Relations' that 'an injunction in an action for divorce, alimony, support of wife or child, custody of child or annulment of marriage, shall not be governed by this Subtitle.' He held, however, that Code (1966 Repl. Vol.), Art. 16, § 4, authorized the court 'to seize the property of a nonresident defendant pursuant to a bill of complaint for permanent alimony * * * (and that while the husband) is a domiciliary of this State, he is temporarily a nonresident and as such falls within the provisions of this Section.' ² (Italics supplied.)

The court's order dated March 11, 1968, was that 'the Respondent's Motion to Dismiss of February 8, 1968, be and hereby is overruled.' The husband entered an appeal 'from the Decree dated March 11, 1968.'

We held in Eisel v. Howell, 220 Md. 584, 586, 155 A.2d 509, 510, that:

'The denial of a challenge to the jurisdiction does not settle or conclude the rights of any party or deny him the means of proceeding further. It settles nothing finally. An order which does none of these things is not appealable.'

This holding was followed in Milio v. Bar Association of Baltimore City, 227 Md. 527, 530, 177 A.2d 871, and see Middleman v. Md.-Nat. Capital Park & Planning Comm., 232 Md. 285, 289, 192 A.2d 782, and Lawrence v. State Dep't of Health, 247 Md. 367, 371, 231 A.2d 46. We have concluded, however, that the substantial merits of the matter before us will not be furthered or determined unless the case is remanded under Maryland Rule 871 a without affirmance, reversal or modification, and that the purposes of justice will be advanced by permitting further proceedings in the cause.

The Nevada divorce decree is entitled to and must be given presumptive validity and full faith and credit in Maryland unless and until it is judicially impeached by proof that the husband did not acquire a valid domicile in Nevada as the court of that State held that he had. Brewster v. Brewster, 204 Md. 501, 504-505, 105 A.2d 232; Colby v. Colby, 217 Md. 35, 141 A.2d 506, cert. denied sub nom Appleby v. Colby, 358 U.S. 838, 78 S.Ct. 62, 3 L.Ed.2d 74; Day v. Day, 237 Md. 229, 205 A.2d 798; Staley v. Staley, Md., 248 A.2d 655 (September Term, 1967, decided December 12, 1968). The court below did not expressly find the Nevada divorce invalid and if it be argued that it necessarily did so inferentially, the answer is that the record does not support a finding of invalidity, and until invalidity is judicially determined the finding of fact of the Nevada court that the husband had been domiciled in Nevada for at least six weeks prior to January 15, 1968-that is, from at least December 4, 1967-stands unimpeached. The wife's bill was not filed until December 21, 1967 and service on the husband was not had until five days later. The applicability of § 95 of Art. 75 of the Code turns on the fact of Maryland domicile of the one to be served in another State, and that section cannot be used as a basis of personal jurisdiction if the defendant was not a domiciliary of Maryland when suit was filed against him and when he was served.

In Naylor v. Naylor, 217 Md. 615, 624, 143 A.2d 604, in which a Nevada divorce decree was held invalid because there was no actual domicile in Nevada, we pointed out some of the tests the courts have used to determine the genuineness of domicile in a sister State. There the Maryland deserter had remained in Nevada for most of two years. We said:

'An examination of the relatively few cases in recent years which have sustained the bona fide character of the domicile in another state reveals that one or all of several other factors were present, such as: (i) residence in the divorce-granting state for a substantial period before the divorce action was instituted; (ii) the removal of all or substantially all of one's personal property to the new residence; (iii) the severance of all or most of one's connections in the state departed from; (iv) the engagement in permanent business activities or gainful employment; and (v) the...