Fisher v. De Marr

• Decision Date: 19 October 1961
• Docket Number: No. 37,37
• Citation: 174 A.2d 345,226 Md. 509
• Parties: Ruth FISHER, Admrx. d. b. n., estate of Alexander Middleton, Jr., et al. v. Mary Bernice DE MARR.
• Court: Maryland Court of Appeals

Page 509

226 Md. 509

174 A.2d 345

Ruth FISHER, Admrx. d. b. n., estate of Alexander Middleton Jr., et al.

v.

Mary Bernice DE MARR.

No. 37.

Court of Appeals of Maryland.

Oct. 19, 1961.

Reargument Denied and Opinion Clarified Nov. 17, 1961.

LeRoy Pumphrey and W. Gwynn Gardiner, Washington, D. C. (South Trimble, Jr., Washington, D. C., on the brief), for appellants.

John W. Mitchell and George T. Burroughs, Upper Marlboro (Mitchell & Clagett, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

In 1947 Alexander Middleton married Mary Richardson, who had shortly before divorced her first husband in the Circuit Court for Charles County. After Middleton's death intestate in 1960, his brothers and sisters, who would inherit all his estate if he died unmarried, filed a bill in the Circuit Court for Prince George's County by which they--and one of them in her capacity as administratrix d. b. n.--sought to disinherit the wife by establishing the invalidity of the marriage. Their claim was that the divorce decree was void for lack of jurisdiction in the Charles County court, in that both husband and wife were residents of Prince George's County and not of Charles County, and because of fraud in the procurement of the decree in that the wife testified falsely she had been chaste and faithful, whereas in truth she had led a dissolute life and been unfaithful.

Judges Powers and Bowie rejected the contentions of the brothers and sisters. The appeal is from the dismissal of their bill, after the sustaining of the widow's demurrer.

The specifics of the bill in the present case were that the defendant, then Mary Richardson, filed suit for divorce in the Circuiy Court for Charles County against her husband, Norman Richardson, in May 1947, and in the following August was granted an absolute divorce; that in September 1947 Mary Richardson married Alexander Middleton, the brother of the complainants, and lived with him on his farm in Prince George's County until his death in 1960; that in 1959 Middleton sold all the farm, except the dwelling, for $141,890.70, of which $24,122 was in cash, with the balance of $117,768.70 secured by a mortgage payable to husband and wife, and that the cash was deposited in a bank in joint names; that the widow had been named administratrix of the estate by the Orphans' Court for Prince George's County and then had been removed by the said court on petition of the complainants, one of whom, a sister, had been appointed administratrix d. b. n.; and that the widow had in her hands the proceeds of sale of certain corn, tobacco, cattle, farm implements, and other assets 'that rightly belong to the estate.'

The prayers for relief were that the divorce decree and the subsequent Richardson-Middleton marriage be declared void, that the mortgage securing part of the purchase price of the farm be declared an asset of Middleton's estate, that the widow be declared ineligible to inherit any part of his estate and that she be required to surrender all assets of the estate and to suffer judgment for any loss she has occasioned the estate by selling its assets below their market values.

Filed with the bill of complaint as an exhibit was a certified transcript of the divorce proceedings. The bill alleged that the wife had lived in Charles County with her parents for more than two years prior to the filing of the bill and that there had been a deliberate, final and uninterrupted abandonment by the husband for more than eighteen months and that the husband was a resident of Prince George's County. The husband appeared by counsel and in his answer admitted the allegations of the wife as to her residence and his. His counsel acknowledged receipt of notice of the taking of testimony and waived the husband's right to produce withnesses and to cross-examine witnesses of the wife and agreed to a provision in the decree calling for the payment of $5 a week for the support of the infant child of the couple.

The wife testified as to her residence with her parents in Charles County from the time her husband entered the service until the filing of the bill, more than two years, that her husband had refused to live with her when he came back from the war and that she had tried to be a true and faithful wife and do what she could to make a happy home. Her mother and another witness testified that she had made her home with her father and her mother in Charles County continuously since her husband entered the service, and that she was as good to her husband as could be and 'had given him all the chance she can give him.'

The parties to the case at bar proceeded below and have gone forward here on two assumptions, which we think justified. The first is that the assault of the appellants on the divorce decree is a collateral one, and the second is that if the appellants are to prevail on their first contention--which is that the divorce decree was void because neither party was a resident of Charles County--the words of the applicable statute, Code (1957), Art. 16, Sec. 22, that any person desiring a divorce 'shall file his or her bill in the court, either where the party plaintiff or the defendant resides,' impose a jurisdictional requirement.

The Courts do not always agree on when an attack is collateral and when it is direct. Some Courts regard an attack as direct only if it is made in the same proceeding in which the judgment attacked was rendered. This Court has given some indication of its belief that this is a correct rule. Peters v. League, 13 Md. 58; Thomas v. Hardisty, 217 Md. 523, 143 A.2d 618. Cf. Master v. Master, 223 Md. 618, 166 A.2d 251; Hinden v. Hinden, 184 Md. 575, 42 A.2d 120; Croyle v. Croyle, 184 Md. 126, 40 A.2d 374. Restatement, Judgments, Sec. 11, says a direct attack is not only the taking of proceedings in the action in which the judgment was rendered either in the trial or the appellate court but includes the taking of independent proceedings in equity to prevent the enforcement of the judgment, and continues: 'Where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or reversed or modified or by a proceeding in equity to prevent its enforcement, the attack is a 'collateral attack.' Where in a subsequent judicial proceeding the judgment is relied upon as a cause of action or defense by one party to the proceeding and the other party sets up the invalidity of the judgment, he is collaterally attacking the judgment.'

If the subsequent action has an independent purpose or contemplates other relief and result than the overturning of the judgment, then it is generally said to be collateral even though the overturning may be necessary to its success. 1 Freeman, Judgments (5th Ed.), Sec. 307; 31 Am.Jur. 'Judgments' Sec. 852, pp. 769-70; 49 C.J.S. Judgments § 408; Note, 'Development in the Law--Res Judicata,' 65 Harv.L.Rev. 818, 850. We think the assault of the brothers and sisters of Middleton on the divorce decree is collateral.

It is established that a judgment or decree of a court without jurisdiction is void and may be attacked directly by a party or a privy, if he is not estopped to do so, and collaterally by a stranger whose interests or status would be adversely affected if it were valid, and that a judgment or decree which is merely erroneous or voidable is not, with relatively rare exceptions, subject to collateral attack. State v. Ambrose, 191 Md. 353, 369, 62 A.2d 359 (citing among others the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565); Board of Medical Examiners v. Steward, 207 Md. 108, 113 A.2d 426; Thomas v. Hardisty, 217 Md. 523, 536, 143 A.2d 618 (in which it was assumed the attack was collateral); Spencer v. Franks, 173 Md. 73, 80, 195 A. 306, 114 A.L.R. 263; Old Colony Trust Co. v. Porter, 324 Mass. 581, 88 N.E.2d 135, 12 A.L.R.2d 706; Bloom v. Bloom, 337 Mass. 480, 150 N.E.2d 24; Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617, 625; Shammas v. Shammas, 9 N.J. 321, 88 A.2d 204; Restatement, Judgments, Sec. 11 and comments; 49 C.J.S. Judgments § 401; Note, 65 Harv.L.Rev. 818, 851.

The attack on the jurisdiction of Charles County must fail. We read the words of Sec. 22 of Art. 16 as to the county in which a divorce action should be filed as directed to venue and not jurisdiction.

The Courts of Maryland did not inherit from the Ecclesiastical Courts the inherent jurisdiction to grant absolute divorces. Emerson v. Emerson, 120 Md. 584, 87 A. 1033. Their right and power to do so was bestowed upon them by the Legislature.

Section 22 of Article 16 of the Code, first enacted in 1841, provides that 'the courts of equity of this State shall have jurisdiction of all actions for divorce * * * and any person desiring a divorce * * * shall file his or her bill in the court, either where the party plaintiff or the defendant resides * * *.' Clearly the first clause confers jurisdiction in the fundamental sense upon all the courts of equity in Maryland. The directions of the second clause can be read as dealing either with venue or with jurisdiction. Several States, whose decisions are relied on by the appellant, have held similar provisions to be jurisdictional. The great weight of authority is that statutes specifying the county in which bills for divorce should be filed relate to venue, and a bill brought in another county may be entertained if jurisdictional requirements as to residence within the State are met and the defendant waives the privilege conferred by the statute to have the case tried and decided in the specified county. The cases are collected in 2 Nelson, Divorce and Annulment, Sec. 21.31, pp. 677-9. See also 17 Am.Jur. 'Divorce and Separation' Sec. 302; 27A C.J.S. Divorce § 83.

The provisions of Code (1957), Art. 75, Sec. 75, as to the place of bringing law and equity suits generally--which are similar in form to those of Sec....