Garg v. Garg, 97, September Term, 2005.

• Decision Date: 08 June 2006
• Docket Number: No. 97, September Term, 2005.,97, September Term, 2005.
• Parties: Ajay GARG v. Deepa GARG.
• Court: Court of Special Appeals of Maryland

Page 739

900 A.2d 739

393 Md. 225

Ajay GARG v. Deepa GARG.

No. 97, September Term, 2005.

Court of Appeals of Maryland.

June 8, 2006.

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

Richard D. Rosenthal (Tydings & Rosenberg, LLP, Baltimore, on brief), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

WILNER, J.

Respondent, Deepa Garg, filed a complaint in the Circuit Court for Baltimore County seeking a limited divorce from her husband, petitioner Ajay Garg, custody of their minor child, Chaitanya, spousal and child support, and certain ancillary relief. Mr. Garg moved to dismiss the complaint on the grounds that (1) he had not been validly served, and (2) because of proceedings already pending in a court in Indore, India, the Maryland court was precluded from exercising jurisdiction in the custody matter. After conducting an evidentiary hearing, the Circuit Court concluded that, because of the pending case in India, it should not exercise jurisdiction, announced its findings in support of that conclusion, dismissed the entire action, and, pursuant to a subsequent motion, assessed costs and attorneys' fees against Ms. Garg. The court never ruled on the service of process issue.

The Court of Special Appeals vacated that judgment and remanded the case for further proceedings. Garg v. Garg, 163 Md.App. 546, 881 A.2d 1180 (2005). It held that (1) even if there might be a basis for concluding that the Maryland court should not exercise jurisdiction over the custody dispute, it clearly had subject matter jurisdiction over the divorce action, (2) the Circuit Court erred in deferring a request by respondent to appoint an attorney for the child pending resolution of the jurisdictional issue—in effect that, as a matter of law, it was required to appoint an attorney for the child before deciding the jurisdictional issue, and (3) in revisiting the jurisdictional issue on remand, the trial court was to apply the newly enacted Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) rather than the Uniform Child Custody Jurisdiction Act (UCCJA) that was in effect when the complaint was filed.

Petitioner is not contesting the intermediate appellate court's determination that the divorce action may proceed in Maryland, so we have no occasion to address that issue.¹ He does complain about the other two rulings, however, and his complaint is legitimate. The Court of Special Appeals erred in even addressing the Circuit Court's decision to defer the appointment of counsel for the child, as that was not a matter raised by Ms. Garg in her brief and was therefore not before the court. It was apparently injected sua sponte by the appellate court, without the benefit of argument, and then used to resolve the appeal. Having improperly injected the issue, the court then erred in its ruling on it; the court should not have second-guessed the discretionary decision by the Circuit Court judge which, under the circumstances, was entirely appropriate and well within the permissible bounds of his discretion. The Court of Special Appeals also erred in concluding that the UCCJEA had any application to this case; the plain language of the statute makes clear that the statute does not apply.

Because the intermediate appellate court ruled as it did on the appointment-of-counsel issue, it never addressed the principal issues actually raised by respondent in her appeal—whether the Circuit Court was correct in its determination that it had no jurisdiction under the UCCJA over the custody issue and whether the court erred in assessing expenses and attorneys' fees against her. We shall remand the case to the Court of Special Appeals so it can properly decide those issues, which were fully briefed and argued in that court but, in part because of the subsequent enactment of the UCCJEA, have no further public importance, other than to the parties, warranting review by this Court.

BACKGROUND

Mr. and Ms. Garg were born and raised in India and were married there in July, 1991. Mr. Garg first came to the United States in 1985 as a student, earned a degree in chemical engineering, and remained gainfully employed here until 2000. In October, 1991, shortly after their marriage, Ms. Garg joined her husband in the U.S. and took up residence with him in Massachusetts. She became an American citizen in 1997 or 1998. Mr. Garg has remained a citizen of India. The child's citizenship status is unclear.

Both parties made trips back to India. In June, 1995, while pregnant, Ms. Garg returned to India to stay with Mr. Garg's parents in Indore, and, on September 23, 1995, Chaitanya was born there. Mr. Garg visited them a month later, but they all resumed residence in Massachusetts in January, 1996, and, except for a visit to India by Ms. Garg and Chaitanya in January, 1999, continued to live there until July, 1999, when they returned to Indore. The family remained in India until Ms. Garg and Chaitanya came to Maryland on May 24, 2002.

The critical events relevant to this case occurred during the spring of 2002. It is evident that there had been significant family discord; each party has accused the other of a variety of inappropriate behavior. The parties were living in Indore, and Chaitanya—then six-and-a-half years old— was enrolled in school there. In March, Ms. Garg, without notice to her husband, removed Chaitanya from his school, and moved with him to the home of Ms. Garg's parents in Mumbai (formerly Bombay), nearly 400 miles away. On April 1, 2002, through counsel, Ms. Garg filed an action in the Mumbai court for maintenance allowance. That action never progressed because Mr. Garg was not served with process.

A week later, on April 8, 2002, Mr. Garg filed an action in the Indore court seeking the return of Chaitanya. It was an action solely for custody; he did not seek a divorce. Mr. Garg alleged that, under India law, the father is the natural guardian of his children over five years of age, and the basis of his complaint was that Ms. Garg had unlawfully abducted Chaitanya from his guardianship. At some point, before any proceedings on that complaint, Ms. Garg contacted a lawyer in Indore, Vimal K. Gangwal, Esq., by phone, claimed that she had been deserted by her husband, and requested Mr. Gangwal's professional assistance. She also, at some point in April, signed a general power of attorney, appointing her father, Shri V.K. Govil, as her attorney, with authority, among other things, to "attend to all the Court cases on my behalf."

On May 24, Ms. Garg and Chaitanya left India for the United States, settling in Maryland. In a subsequent statement, her attorney, Mr. Gangwal, asserted that Ms. Garg was unaware of the action in the Indore court when she left. It is not clear from whom he got that information; he later claimed that he had not been able to reach Ms. Garg after she left India. In June, 2002, having first tried other methods of serving Ms. Garg, Mr. Garg published notice of his action in a Mumbai newspaper, apparently as a means of serving her by publication.

On July 11, 2002, the Indore court assumed jurisdiction. The order shows that Ms. Garg was represented by Mr. Gangwal in the proceeding. The essential issue was whether jurisdiction should lie (1) in Mumbai, (2) where the child was currently living in the U.S., or (3) in Indore, where the child had been living with his father prior to the mother's removing him. Mr. Garg, relying on the Guardians and Wards Act, asserted that custody jurisdiction belonged with the court where the child "ordinarily resides," that, under that law, the child was ordinarily residing in Indore, and that the mother's removal of the child could not defeat that jurisdiction.

Gangwal filed an application in the nature of a motion to dismiss, in which he argued that, because the parties and the child were all Hindu, the applicable law was not the Guardians and Wards Act but rather the Hindu Minority and Guardianship Act and that, under that Act, jurisdiction lay either in Mumbai or in Baltimore, Maryland, where, he asserted, the child was currently residing. Although Mr. Gangwal insisted that he had been unable to contact his client since she departed India, he obviously knew that she was in the Baltimore area and averred that they "are/were in USA at the time when the notice from the U.S. Court was served." It is not clear what notice he was referring to. There was no proceeding in a U.S. court until Ms. Garg filed this action in February, 2003, and the record shows that service of process from the Indore court was served on her at that time.²

The Indore court dismissed Ms. Garg's application, holding that the Guardians and Wards Act was applicable, that, under § 9 of that Act, jurisdiction lay where the child had been "ordinarily residing," and that the mother's removal of the child did not suffice to abrogate that jurisdiction. Ms. Garg was directed to file an answer to the complaint. On August 26, 2002, Mr. Gangwal advised the court that, "after repeated calls," he had received no instructions from his client, and the court therefore decided to proceed ex parte. It is not clear whether anything further has occurred in the Indore court. Mr. Garg testified in this case, in September, 2003, that a hearing had been scheduled in the Indore court for some time in October, 2003.

On February 24, 2003, Ms. Garg filed this action in the Circuit Court for Baltimore County seeking, as we have said, a limited divorce, custody of Chaitanya, spousal and child support, and ancillary relief. It appears that, by then, Mr. Garg had returned to the U.S. and, according to Ms. Garg, was living in Connecticut. The ground asserted for the divorce and custody was extreme cruelty on Mr. Garg's part directed at her and the child. On those same allegations of cruelty and threats, Ms. Garg, on March 7, filed an ex parte m...