Epstein v. Epstein

• Decision Date: 18 May 1949
• Docket Number: 149.
• Citation: 66 A.2d 381,193 Md. 164
• Parties: EPSTEIN v. EPSTEIN.
• Court: Maryland Court of Appeals

66 A.2d 381

193 Md. 164

EPSTEIN v. EPSTEIN.

No. 149.

Court of Appeals of Maryland

May 18, 1949

Appeal from Circuit Court of Baltimore City; W. Conwell Smith, Chief Judge.

Suit by Philip Epstein against Belle O'Kune Epstein for a divorce a mensa, to have court declare a Florida divorce decree obtained by defendant void, to enjoin defendant from disposing of her interest in certain property and to award plaintiff custody of two children of the parties. From order dismissing bill of complaint from want of jurisdiction, the plaintiff appeals.

Affirmed.

Eldridge Hood Young, of Baltimore (Harry M. Miller, of Baltimore, on the brief), for appellant.

Robert L. Mainen and Jacob D. Hornstein, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARKELL Judge.

This is an appeal from an order dismissing a bill of complaint for want of jurisdiction, on a motion of defendant 'appearing herein specially for this motion and for no other purpose.'

The bill alleges that: Plaintiff and defendant were married in Baltimore in 1929, and have two children, aged fourteen and eight respectively. Plaintiff for more than a year 'has been a resident' of Baltimore; defendant 'is a nonresident' of Maryland, and 'is living' and 'residing' in Miami, Florida, her exact address is unknown. Plaintiff has always been a kind, faithful and affectionate husband. Plaintiff and defendant resided together in Baltimore, at 3713 Columbus Drive, their 'joint home'. Defendant on January 20, 1948 'without cause or provocation abandoned and deserted' plaintiff, taking with her the younger child, and for several months plaintiff 'was unable to locate either his wife or his child'. In July, 1948 plaintiff was informed that defendant 'had established residence' in Miami, [Dade County], Florida, 'for the purpose of securing a divorce' in Florida; on June 29, 1948 the Circuit Court for Dade County, Florida did issue a divorce a vinculo to defendant. Defendant 'is the offending spouse, having deserted and abandoned [plaintiff] for the purpose of securing a divorce in accordance with the laws of * * * Florida; * * * the * * * divorce was issued by * * * Florida without having jurisdiction over the parties, [defendant] having left * * *Maryland for the sole purpose of securing a divorce in * * * Florida, having no grounds for divorce in * * * Maryland * * * and * * * the * * * divorce was issued on fraudulent and perjured testimony'. Plaintiff and defendant own, as tenants by the entireties, fee simple property 3713 Columbus Drive, Baltimore. Plaintiff has been advised by defendant's Florida attorney that 'on the basis of the Florida decree of divorce' defendant 'is contemplating the sale of her undivided one-half interest' [sic] in the property owned by the entireties in Baltimore. Because of the Florida decree and 'the actions' of defendant in leaving the marital home, the separation between plaintiff and defendant 'is the final and deliberate act' of defendant and 'is final and deliberate and is now beyond any reasonable hope or expectation of a reconciliation'.

Plaintiff prays (a) a divorce a mensa; (b) that the court declare the Florida divorce decree 'as null and void'; (c) that defendant be enjoined from disposing of her interest in the Columbus Drive property pending the outcome of this case; (d) that plaintiff 'be awarded the care and custody' of the two children; and (e) general relief. Presumably pursuant to General Equity Rules 7, 8, 10 and 11(2) and (4), Code 1947 Supplement, [193 Md. 170] pp. 2008-2010 , there is no prayer for process. Apparently no subpoena issued, but notice by publication was given.

Defendant, appearing specially, moved to dismiss the bill because, 'as appears from the bill', defendant is domiciled and actually resides in Florida and is a non-resident of Maryland, and the bill collaterally attacks the Florida divorce decree and the courts of Maryland have no jurisdiction to pass upon such collateral attack. The motion, therefore, was made, and was disposed of without testimony, on the allegations of the bill. This motion was not a demurrer to the bill, but an application, by a special appearance, to dismiss for lack of jurisdiction over defendant without personal service or general appearance. Ortman v. Coane, 181 Md. 596, 605, 31 A.2d 320, 145 A.L.R. 1388. Borchert v. Borchert,

185 Md. 586, 590, 45 A.2d 463, 162 A.L.R. 1078; Cf. Keen v. Keen, Md., 60 A.2d 200, 205. On this motion we are not authorized to decide whether the allegations of the bill state a case for equitable relief. Evans v. Zouck, 172 Md. 12, 13-14, 17, 190 A. 523. We are not, however, prevented from deciding the question of jurisdiction by the fact that that question may involve, wholly or partly, the same questions which would be presented by a demurrer to the bill.

On a suit for a divorce or separation the only res in Maryland which will support jurisdiction in rem is the marital status when one or both parties are domiciled in Maryland. Garner v. Garner, 56 Md. 127; Adams v. Adams, 101 Md. 506, 61 A. 628. Until Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, was decided in 1942, the Constitution of the United States did not require the State of Maryland to give any credit to an 'ex parte divorce' (Sherrer v. Sherrer, 334 U.S. 343, 349, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, 1 A.L.R.2d 1355) granted, without personal service or appearance, in a state which was not the marital domicile (Atherton v. Atherton, 181 U.S. 155, 21 S.Ct 544, 45 L.Ed. 794), or the domicile of the defendant. Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Walker v. Walker, 125 Md. 649, 94 A. 346, Ann.Cas.1916B, 934. If the state where the divorce was granted was not the domicile of either party, another state was not required to recognize the divorce, even though both parties had appeared. Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366, cited in Walker v. Walker, supra, and overruled in Sherrer v. Sherrer, 334 U.S. 343, 353, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, 1 A.L.R.2d 1355.

Apparently some states, e. g., New York, North Carolina and South Carolina, refused to recognize any ex parte divorces granted in other states. Most states held that, upon principles of comity, such divorces, granted by a court of 'the state in which the complainant is domiciled' should, 'in the absence of fraud', be recognized, provided 'that the ground upon which the decree rests is one which the public policy of the State in which it is sought to be enforced recognizes as a sufficient cause for divorce'. Felt v. Felt, 59 N.J.Eq. 606, 610, 45 A. 105, 49 A. 1071, 47 L.R.A. 546, 83 Am.St.Rep. 612; Atherton v. Atherton, supra, 181 U.S. at page 169, 21 S.Ct. 544, 45 L.Ed. 794. In some states some such principles of comity had been recognized by statute. In 1835 Massachusetts enacted: '§ 39. When any inhabitant of this state shall go into any other state or country, in order to obtain a divorce [1] for any cause, which had occurred here, and whilst the parties resided here, or [2] for any cause, which would not authorize a divorce, by the laws of this state, a divorce so obtained shall be of no force or effect in this state. § 40. In all other cases, a divorce decreed in any other state or country, by a court having jurisdiction of the cause and of both of the parties, shall be valid and effectual in this state.' [Italics and bracketed numbers supplied]. Rev.L.1835, c. 76. This statute, in substance, is still in force. Massachusetts Gen. Laws, c. 208, § 39 (1932). It merely formulated a prior rule of judicial origin. Hanover v. Furner, 14 Mass. 227, 7 Am.Dec. 203; Haddock v. Haddock, supra, 201 U.S. at page 588, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1. Similar statutes have been enacted in Maine (1841), Delaware (1852), New Jersey (1907), and Wisconsin (1909). It may be that in the Massachusetts statute 'inhabitant' means domiciled inhabitant and 'so obtained' means obtained while the plaintiff was still domiciled in Massachusetts, and that the statute was not applicable to 'a person who * * * is irked by its laws concerning the severance of the marriage tie * * * [and moves] his home to some other state with more congenial laws'--and there obtains a divorce. Sherrer v. Sherrer, 334 U.S. 343, 360-361, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429, 1 A.L.R.2d 1355, dissenting opinion of Mr. Justice Frankfurter. A state never could forbid a domiciliary to change his domicile in order to obtain a divorce, but could, until Williams v. North Carolina, supra, was decided, refuse to recognize an ex parte divorce obtained at the new domicile. The language of § 39 of the Massachusetts statute of 1835 seems broad enough to be applicable even when, for the purpose of obtaining a divorce, a genuine change of domicile has been effected. The statute, or the public policy underlying it, apparently was applied in refusing recognition to a New York decree, annulling a marriage on a ground on which it could not be annulled in Massachusetts, obtained by a husband years after he had left Massachusetts and had acquired an unquestioned domicile in New York. Cummington v. Belchertown, 149 Mass. 223, 21 N.E. 435, 4 L.R.A. 131; Haddock v. Haddock, supra, 201 U.S. at pages 592-593, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1. Of similar scope is the statement of public policy and comity in Felt v. Felt, supra.

Even since Williams v. North Carolina, supra, many state courts have granted injunctions against a domiciliary prosecuting an out-of-state divorce suit. In most cases the ground, or the principal ground, of relief has been a threatened setting up of a fictitious domicile in a state which had no jurisdiction...