Garg v. Garg

• Decision Date: 02 September 2005
• Docket Number: No. 1707,1707
• Citation: 881 A.2d 1180,163 Md. App. 546
• Parties: Deepa GARG v. Ajay K. GARG.
• Court: Court of Special Appeals of Maryland

881 A.2d 1180

163 Md. App. 546

Deepa GARG v. Ajay K. GARG.

No. 1707, September Term, 2003.

Court of Special Appeals of Maryland.

September 2, 2005.

Richard D. Rosenthal (Ferrier R. Stillman, Tydings & Rosenberg, L.L.P., on the brief), Baltimore, for Appellant.

Stephen J. Cullen (Jeffrey M. Geller, Miles & Stockbridge, P.C., on the brief), for Appellee.

Panel: MURPHY, C.J., HOLLANDER, and CHARLES E. MOYLAN, JR. (Retired, specially assigned), JJ.

HOLLANDER, Judge.

This divorce and child custody case involves events that occurred in India as well as Baltimore County. The Circuit Court for Baltimore County dismissed a complaint for limited divorce, custody, and child support filed by Deepa Garg, appellant, against Ajay Garg, appellee, because it concluded that the court lacked jurisdiction under the Maryland Uniform Child Custody Jurisdiction Act (the "UCCJA"), § 9-201 et seq. of the Family Law Article ("F.L.") of the Maryland Code (1999 Repl. Vol.).¹ Thereafter, the court awarded travel costs and attorney's fees to Mr. Garg.

On appeal, Ms. Garg poses the following questions:

I. Was the trial court in error in applying the international application of the Uniform Child Custody Jurisdiction Act to dismiss mother's complaint for custody where the foreign nation had not issued an order or decree concerning custody?

II. Was the trial court in error in dismissing mother's complaint for custody in contravention of the Family Law Article 1-201(a)(5) and (b)(1) and 2-503(d) granting the trial court jurisdiction over the issue of custody?

III. Was the trial court in error in dismissing Wife's complaint for divorce for alleged insufficient service of process[?]

IV. Was the award of attorney's fees and expenses entered in error an abuse of discretion?

For the reasons set forth below, we shall vacate the dismissal and remand for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

The parties were married in India on July 19, 1991. Mr. Garg is a citizen of India, where he now resides. At one time, however, he was a permanent resident of the United States. Ms. Garg claims she came to the United States as a "lawful permanent resident" in October 1991, and she became a naturalized United States citizen in 1997. The couple's only child, Chaitanya, was born in India on September 23, 1995. Appellant claims that Chaitanya is an American citizen, pursuant to the Child Citizenship Act of 2000, 8 U.S.C. § 1431(a) (2000).²

According to appellant, Mr. Garg remained in the United States when the couple's child was born. Ms. Garg and the baby returned to this country in January 1996. The family then resided in Massachusetts until 1999.

The parties separated in March 2002, while they were again in India. In April 2002, Mr. Garg initiated custody proceedings in Indore, India, pursuant to the Guardians and Wards Act. In the same month, appellant filed an action for "maintenance" in Mumbai, India, pursuant to the Criminal Procedure Code. In May of 2002, when Ms. Garg left India with the couple's son, no custody order had been issued by an Indian court. The pair arrived in Maryland on May 24, 2002.

Nine months later, on February 24, 2003, appellant filed in the Circuit Court for Baltimore County a "Complaint for Limited Divorce, Child Custody, Child Support and Appropriate Relief." She alleged that appellee's "conduct frequently included . . . assault and battery," spanning approximately ten years of marriage. Moreover, appellant claimed that she was "unaware of any other action pending in this or in any other state, territory, country or jurisdiction for the divorce, separation, annulment or dissolution of the marriage of the parties. . . ." She also alleged that it was in the best interest of the child to remain in her custody, because of the physical and emotional harm inflicted on him by appellee, and because Chaitanya did not want to return to India.

Two weeks later, on March 7, 2003, Ms. Garg filed an "Ex Parte Motion For Emergency Custody." She advised the court that appellee "filed for custody [of Chaitanya] in his home country (India)" and that "the Indian court has accepted jurisdiction over the matter. . . ." However, she asserted that the Indian court "does not have personal jurisdiction" of appellant or the child.

On the same date, the court (Levitz, J.) issued a "Ruling" denying the motion "because notice was not provided as required under Rule 1-351." But, the court also ruled that appellee "is prohibited from removing the minor child, Chaitanya Garg, from the jurisdiction of [the] court before such time as a hearing is held regarding [the] matter."

Appellant filed an amended ex parte emergency custody motion on March 18, 2003, claiming that she notified appellee in accordance with Md. Rule 1-351. Appellant asked the court to award her sole legal and physical custody of Chaitanya, "with a prohibition that the minor child not travel domestically or abroad without the [appellant's] written permission, or that of [the] Court." Appellant included a copy of an "Intimation of Ex Parte Order" from the Family Court in Indore, dated February 1, 2003, addressed to Deepa Garg. It advised that appellee's custody matter "proceeded Ex-Parte against you" because Ms. Garg's "advocate," Shri Gangwal, "pleaded `No Instructions' on 26.8.2002."³

In response to appellant's complaint and ex parte custody motion, on April 11, 2003, appellee filed a "Verified Emergency Motion to Dismiss Pursuant to Maryland Uniform Child Custody Jurisdiction Act Because Custody Proceedings Are Pending in India."⁴ He alleged that appellant "abducted" Chaitanya from India to Maryland, and complained that she "fraudulently concealed" from the court that custody proceedings were already pending in India. In his view, appellant's conduct constituted a "reprehensible attempt to forum shop improperly."

According to appellee, the court in Indore had jurisdiction of the custody dispute as of April 8, 2002, when he sought an expedited hearing pursuant to Section 25 of the Guardians and Wards Act. In support of his contention, appellee attached a translated copy of his "Application [to the Indian court] for Early Hearing in Case No. 8/02." He also attached a copy of the Indore court's decision of July 11, 2002, denying appellant's motion to dismiss his custody action on the ground that the Indore court lacked jurisdiction because Chaitanya lived in Mumbai. Further, Mr. Garg asserted that, "on August 26, 2002, Ms. Garg's [Indian] counsel advised the court that he was without instructions from his client as to how to proceed," and the Indore court thereafter "initiated ex parte proceedings."

According to appellee, on October 23, 2002, "[t]he Indian court ... issued an order that Ms. Garg be informed that the case would proceed ex parte against her and continued the proceeding to December 19, 2002."⁵ Appellee also alleged that "he pursued all legal notices ordered by the Indian court," and Ms. Garg was served in Baltimore with the ex parte order and documents from the Indore court on February 25, 2003.

In addition, appellee attached a copy of a letter dated April 6, 2002, from the child's Indian school, stating that appellant had removed Chaitanya from the school on March 22, 2002. He also appended a copy of a letter dated April 12, 2002, from appellant to Chaitanya's school in Indore, in which appellant stated that she took her son to Mumbai "in an emergency" and that she planned to "return back to Indore soon; but he fell sick." In the letter, appellant also asked the school to issue a "school leaving certificate." Appellant enclosed a "medical certificate" with the letter, signed by Dr. Bharat Shah, stating that Chaitanya "was suffering from fever, gastro-enteritis, [and] dehydration since" March 26, 2002. Appellee alleged: "Upon information and belief, at some point thereafter, Ms. Garg removed the child from India and Mr. Garg then spent months looking for the child."

In view of the custody proceedings pending in India, and appellant's "wrongful removal and wrongful retention of [the] child ... in this state," appellee urged the court to dismiss Ms. Garg's action pursuant to the UCCJA. He argued that appellant could not "assert jurisdiction in Maryland because she has already appeared in Indian court, was represented by counsel there and is in the middle of custody litigation in that forum." Appellee insisted that India was the more appropriate venue because it was Chaitanya's "home state."

In addition, appellee maintained that, "because of the Indian court's insistence on substantive and procedural due process and notice to Ms. Garg and because Ms. Garg abducted the child during the pendency of the proceedings, there is no existing decree in India." Under § 9-208(a) of the UCCJA, however, he asserted that the circuit court was permitted to decline jurisdiction.⁶ Among other things, appellee requested:

b. an Order directing that courts of the sovereign nation of India have exclusive personal and subject matter jurisdiction over the parties and the child and that Mr. Garg not be impeded from repatriating the child to India;

* * *

d. an Order directing Ms. Garg to pay Mr. Garg's costs and attorney's fees;. . . .

On April 28, 2003, appellant filed a request for an emergency custody hearing and a motion to strike appellee's motion to dismiss. She asserted "that there is an emergency because Mr. Garg has a history of violence against Ms. Garg and Chaitanya." Further, appellant averred that appellee had been "served with process on March 7, 2003," in East Hartford, Connecticut, where he "maintains an address" to receive "tax and brokerage statements."

Significantly, appellant agreed with appellee that she received a "Summons from Family Court, Indore, India with intimation of ex-parte order and notice on next hearing date" on February 25, 2003. However, she maintained that this date was one day after she filed her complaint in the circuit court.⁷ In...