Hinden v. Hinden

• Decision Date: 12 April 1945
• Docket Number: 32.
• Citation: 42 A.2d 120,184 Md. 575
• Parties: HINDEN v. HINDEN.
• Court: Maryland Court of Appeals

42 A.2d 120

184 Md. 575

HINDEN v. HINDEN.

No. 32.

Court of Appeals of Maryland

April 12, 1945

Appeal from Circuit Court No. 2 of Baltimore City; W. Conwell Smith Judge.

Suit for divorce by Louis A. Hinden against Yetta Hinden. From an order overruling his demurrer to defendant's amended petition to set aside for fraud a decree for plaintiff plaintiff appeals.

Affirmed.

William Sinsky, of Baltimore, for appellant.

Rome & Rome, Nathan Hamburger, and Edwin Ottenheimer, all of Baltimore, for appellee.

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

MELVIN Judge.

This appeal is from an order of Circuit Court No. 2 of Baltimore City overruling appellant's demurrer to appellee's amended petition filed November 8, 1944, to set aside for fraud a decree of divorce obtained by the former in that court on April 7, 1943.

The material allegations of this petition are: That on January 6, 1943, the appellant, Louis A. Hinden, filed his bill of complaint against the petitioner, Yetta Hinden, for a divorce a vinculo matrimonii, in which he alleged that the parties were married on December 27, 1923; that they had two children born to them; that the plaintiff was a resident of Baltimore City, Maryland, for more than one year immediately preceding the filing of the bill of complaint; that the defendant was a non-resident of the State of Maryland and when last heard of by the plaintiff resided at No. 3110 Tulip Street, Philadelphia, Pa.; that the defendant abandoned the plaintiff on June 20, 1941; that upon the filing of this bill of complaint an order was passed and a certified copy of it was sent by registered mail to the defendant at 3110 Tulip Street, Philadelphia; that this letter was returned by the post office 'undelivered'; that after the taking of testimony a decree of divorce a vinculo matrimonii was passed in these proceedings on April 7, 1943; that the petitioner, Yetta Hinden, had no knowledge or information of said decree or of these proceedings until April, 1944, when she heard through a friend that the plaintiff had started a divorce suit in Baltimore, Maryland; that this court was without jurisdiction to entertain said bill of complaint or to pass the said divorce decree because (1) the plaintiff, Louis A. Hinden, was not a resident of the State of Maryland for one year next preceding this application for divorce; and (2) he knew that the petitioner resided at No. 5642 Arlington Street, Philadelphia, at the time of filing his bill of complaint, and that the petitioner never lived at or near No. 3110 Tulip Street, Philadelphia, Pa.; that said decree of divorce was obtained by fraud and surprise practiced upon the petitioner, and was a fraud upon the court in that, among other things, while the alleged cause for divorce occurred out of the State of Maryland, neither of the parties resided with this State for one year next preceding the application for divorce, and that the plaintiff stated under oath in the bill of complaint a fictitious and incorrect street address for the defendant, thereby causing her to receive no notice of the divorce suit; that the defendant, petitioner, had a meritorious defense to the plaintiff's cause of action in that she did not desert or abandon the plaintiff at any time but that on June 20, 1941, the alleged date of the defendant's abandonment, the parties were living as husband and wife at 5642 Arlington Street, where the petitioner continued to live with her two children; that on July 20, 1941, the plaintiff, without just cause or reason, deserted and abandoned the petitioner, which desertion and abandonment by him have continued uninterruptedly since that date.

To this amended petition the appellant filed a demurrer on the grounds, in substance, that the decree was not entered or enrolled 'by any mistake, surprise or fraud apparent upon the face of the record or the petition'; that the petition fails to set forth any facts from which the court could infer that the decree 'was a result of any legal error, surprise or mistake'; that the petitioner has been slumbering on her rights, if any she had, instead of making a proper defense at the proper time, the petition having been filed some fifteen months after the decree had become enrolled; that because of laches the petitioner is estopped from attacking the decree.

The Chancellor overruled this demurrer, with leave to answer, having previously sustained a demurrer to the original petition filed on July 12, 1944. The appellant chose not to answer, but to rely on the alleged legal insufficiency of the amended petition.

In so doing, he became subject to the admission of the following facts charged against him: (1) Neither he nor the defendant (appellee) resided within the State of Maryland for one year next preceding the application for divorce; (2) he (appellant) knew the actual street address of the appellee at that time (5642 Arlington St., Philadelphia), and further knew that she never lived at or near 3110 Tulip St., Philadelphia, at which latter address he stated he last heard of her; (3) notwithstanding this knowledge of appellee's place of residence, he stated, under oath, in his bill of complaint a fictitious and incorrect street address, thereby causing the defendant to receive no notice of the divorce suit; (4) the appellee had no knowledge or information of said decree or of said divorce proceedings until April, 1944; (5) on June 20, 1941, these parties were living as husband and wife at 5642 Arlington St., Philadelphia, where the appellee has continued to live with her two children; (6) the wife (appellee) did not desert the husband (appellant) at that or any other time, but on July 20, 1941, the latter deserted the former, and this desertion has continued uninterruptedly since that date.

That the aforegoing facts admitted by the demurrer are sufficient, if proved, to entitle the petitioner (appellee) to the relief prayed is settled beyond all question by numerous decisions of this Court. Two recent cases, particularly, are directly in point as to all the issues raised by the demurrer in the instant case, and need only to be cited to show the complete untenability of the appellant's position here.

The first point raised by appellant's argument--both sides submitted on brief--is that 'the Court should not, upon mere petition, inquire into the validity of the decree of divorce. The proper proceeding, if the grounds asserted were sufficient, would be by an original bill of complaint in a court of equity. * * * It is settled that when a decree of divorce has become enrolled, it is not sufficient to allege, by petition, that the decree was based on perjured testimony.'

This point is completely answered and disposed of in the case of Simms v. Simms, 178 Md. 350, 13 A.2d 326, 327, where the authorities are summarized and the law on the subject re-affirmed, as follows:

'Section 201 (now 207) of Article 16, of the Code of Public General Laws of this State, provides that all final decrees, and orders in the nature of final decrees, shall be considered as enrolled from and after the expiration of thirty days from the date of the same. And the general rule is that a decree or decretal order, after enrollment, can be revised or annulled only by a bill of review or an original bill for fraud and not by a petition. In other words, after a decree is enrolled, it is, ordinarily, allowed to stand for what it purports to be on its face until revised or reversed in a more solemn manner than can be done by petition. Thruston v. Devecmon, 30 Md. 210; Downes v. Friel, 57 Md. 531; Trayhern v. National Mechanics' Bank, 57 Md. 590; Miller's Equity Procedure, sec. 287. But as set forth in section 288 of the latter authority: 'There are certain well defined exceptions to the general rule, equally well established as the rule itself, in which this procedure may be by petition instead of by bill of review or original bill. These exceptions are three in number: 1. In cases not heard upon the merits. 2. Where the circumstances are such as to satisfy the court that the decree should be set aside. 3. Where the decree was entered by mistake or surprise.''

A still more recent case dealing with this subject is Saltzgaver v. Saltzgaver, 182 Md. 624, 35 A.2d 810. In that case a decree was entered on June 2, 1942, dismissing plaintiff's bill of complaint for a divorce a vinculo matrimonii against her husband...