Glading v. Furman

• Citation: 282 Md. 200,383 A.2d 398
• Decision Date: 27 March 1978
• Docket Number: No. 83,83
• Parties: Peter T. GLADING v. Lynn A. FURMAN, etc.
• Court: Court of Appeals of Maryland

Page 200

282 Md. 200

383 A.2d 398

Peter T. GLADING v. Lynn A. FURMAN, etc.

No. 83.

Court of Appeals of Maryland.

March 27, 1978.

Jeffrey N. Greenblatt, Rockville (Brodsky & Greenblatt, Rockville, on the brief), for appellant.

Glenn M. Cooper, Chevy Chase (Shefferman, Paley & Rothman, Chartered, Chevy Chase, on the brief), for appellee.

Argued before SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

LEVINE, Judge.

This appeal involves application of the doctrine of continuing personal jurisdiction to a petition for child support filed against a parent who has become a nonresident of this state subsequent to issuance of a Maryland divorce decree lacking a provision for support. Following dismissal of the petition by the Circuit Court for Montgomery County, for want of personal jurisdiction over appellant, the Court of Special Appeals reversed and remanded in Furman v. Glading, 36 Md.App. 574, 374 A.2d 414 (1977). We then granted certiorari and we now affirm.

The litigation that culminates in this appeal began on June 1, 1972, when appellee filed her bill of complaint against appellant in which she sought a divorce a mensa et thoro, alimony, custody of their 14-month old daughter and child support. Personal service in Maryland was then made on appellant who responded not only with an answer, but also with a cross bill for divorce a vinculo matrimonii (on the ground of adultery) and child custody. Several months later the parties entered into a stipulation in which they agreed that appellee should have custody of the child, that alimony was waived, and that appellee was to support the child and indemnify appellant for any sums of money that he might thereafter be required to pay for child support. After presentation of testimony, the circuit court then proceeded to award appellant a divorce a vinculo in December 1972 and to grant custody of the child to appellee. The decree was completely silent on the matter of child support.

Some 42 months later, in June 1976, appellee filed a petition for child support, thus triggering the present dispute. Service of the petition was made personally upon appellant in the State of Virginia. He responded with a motion raising preliminary objection asking that the petition be dismissed for lack of jurisdiction over his person. In a supporting affidavit he established, not only that he had been a resident of Virginia continuously since June 1972, but also that during the same period of time he had maintained absolutely no contacts with the State of Maryland. After extensive briefing and oral argument, the circuit court dismissed the petition on the ground that personal jurisdiction had not been obtained, finding that appellant, a nonresident, had not been served within the State of Maryland and that he had not entered his appearance in the case, either personally or through counsel.

In reversing and remanding for further proceedings, the Court of Special Appeals applied the doctrine of continuing jurisdiction and, relying on Maryland Code (1974, 1977 Cum.Supp.), § 3-602(a) of the Courts and Judicial Proceedings Article (derived from former Article 16, § 66(a)), held that "the parties, once having been subject to the court's jurisdiction for purposes of determining custody and child support under (§ 3-602(a)), remained subject to such jurisdiction for the purpose of modifying any decree or order which affected the child." 36 Md.App. at 578, 374 A.2d at 417.

At the outset, we recognize the cardinal proposition that a claim for child support is an action in personam, and therefore one which required that the circuit court obtain personal jurisdiction over appellant in order to render a binding judgment against him.

"A decree for alimony (or child support) is a decree in personam, and unless the Court has jurisdiction over the person against whom it is passed it is not binding upon him. Such jurisdiction over a non-resident can only be acquired by service of process upon him within the State, or by his voluntary appearance, in person or by attorney. Constructive service by publication, or personal service of process beyond the limits of the State, is not sufficient, nor does a special appearance for the purpose of objecting to the jurisdiction of the Court confer upon that Court jurisdiction to decree on the merits of the case. . . ." McSherry v. McSherry, 113 Md. 395, 400, 77 A. 653, 655 (1910) (citations omitted).

Accord, Renwick v. Renwick, 24 Md.App. 277, 285, 330 A.2d 488 (1975); see Keen v. Keen, 191 Md. 31, 36, 60 A.2d 200 (1948); Garner v. Garner, 56 Md. 127, 128-29 (1881); cf. Hunt v. Tague, 205 Md. 369, 375, 109 A.2d 80 (1954); Ortman v. Coane, 181 Md. 596, 600-601, 31 A.2d 320 (1943) (stating rule that court could not impose personal liability on nonresident defendant unless service had been made on him within state, or he had waived such service by general appearance, or had otherwise submitted to jurisdiction of court). In sum, for personal jurisdiction to be acquired over a nonresident defendant in a child support case, he must either be personally served with process within this state or must voluntarily appear in the case, personally or through counsel. ¹

As we have stated, appellant, at the inception of the original proceedings, was personally served with process in this state and also entered a voluntary appearance. But by the time the petition for child support was filed, he had become a resident of the State of Virginia where he was personally served. Thus the question posed is whether the circuit court retained continuing jurisdiction over his person from the initial institution of the case in 1972, so as to be capable of rendering an in personam decree for child support against him in 1976.

The doctrine of continuing personal jurisdiction, as we apply it here, has been defined by the American Law Institute in these terms:

"If a state obtains judicial jurisdiction over a party to an action, the jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Reasonable notice and reasonable opportunity to be heard must be given the party at each new step in the proceeding." Restatement (Second) of Conflict of Laws § 26 (1971) (emphasis added). See also R. Leflar, American Conflicts Law § 28 (1968).

The Supreme Court placed its imprimatur on the doctrine in the seminal case of Michigan Trust Co. v. Ferry, 228 U.S. 346, 353, 33 S.Ct. 550, 552, 57 L.Ed. 867 (1913), where Mr. Justice Holmes said for the Court "that if a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of a State to bind him by every subsequent order in the cause."

Sound policies of effective judicial administration undoubtedly account for the emergence of the continuing jurisdiction concept. Without such a rule, a court could be prevented from ultimately rendering a valid judgment against either a domiciliary of the state or a nonresident, if either had been personally served with process within the state but then removed himself while proceedings arising out of the original cause of action yet remained to be resolved. Application of the doctrine results in no unfairness to the defendant over whom jurisdiction is retained, since he must receive reasonable notice and be afforded an opportunity to be heard at each new step in the case. Failure to provide such notice and opportunity would likely result in a denial of due process. Griffin v. Griffin, 327 U.S. 220, 228, 66 S.Ct. 556, 90 L.Ed. 635 (1946).

Courts in other states have freely invoked the continuing jurisdiction rule to retain in personam jurisdiction over nonresident parents in child support cases, frequently in proceedings brought to modify awards contained in previously rendered divorce decrees. ² As one court has said:

"Under the continuing jurisdiction of the court in such an action, the filing of a motion for a modification of the decree for support is not the institution of a new or original proceeding but of one ancillary and incidental to the original action. No new service of summons on a party is necessary to give the court jurisdiction to make further orders as to minor-child support. The party remains subject to the jurisdiction of the court in that regard, without reference to the place of his residence or further steps to acquire jurisdiction of his person." Van Divort v. Van Divort, 165 Ohio St. 141, 134 N.E.2d 715, 718 (1956).

Accord, Atwood v. Atwood, 253 Minn. 185, 91 N.W.2d 728, 734 (1958). Similarly the rule has been the basis for in personam jurisdiction in proceedings to enforce or recover payment of child support awarded in prior divorce decrees, ³ or where the prior divorce decree makes no provision for child support, but reserves that question for future determination. Darty v. Darty, 33 Tenn.App. 321, 232 S.W.2d 59, 63 (1949).

Those who advocate liberal application of the continuing jurisdiction doctrine to child support cases note that the failure of a parent to include a claim for such relief in the divorce complaint or to have such a provision incorporated in the final decree should not be allowed to deprive the innocent child of needed financial support. The fact that the parent could have obtained a support order in the original proceeding does not outweigh the necessity of providing for the child's maintenance. A contrary result would be "opposed to a sound and just regard for the interest of society and the welfare of the children, who, while not parties to the proceeding, are nevertheless, profoundly affected by its result." Boggs v. Boggs, 138 Md. 422, 429, 114 A. 474, 477 (1921); see H. Clark, The Law of Domestic Relations in the United States § 15.1, at 492 (1968).

Resort to the continuing jurisdiction approach in child support cases is not wholly without precedent in Maryland. In McSherry v. McSherry, 113 Md. 395, 77 A. 653, a suit for divorce, alimony and child...