Johnson v. Johnson

• Decision Date: 13 February 1952
• Docket Number: No. 100,100
• Citation: 199 Md. 329,86 A.2d 520
• Parties: JOHNSON v. JOHNSON.
• Court: Maryland Court of Appeals

Page 329

199 Md. 329

86 A.2d 520

JOHNSON v. JOHNSON.

No. 100.

Court of Appeals of Maryland.

Feb. 13, 1952.

Wilfred T. McQuaid, Baltimore, for appellant.

Karl F. Steinmann, Baltimore (Mannes F. Greenberg and I. Sewell Lambin, Baltimore, on the brief), for appellee.

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

MARKELL, Judge.

This is an appeal from a decree, dated July 30, 1951, that a decree dated November 12, 1948 'be modified to increase the maintenance provision', and that defendant pay plaintiff $2,058.70, 'the costs and expenses incurred and estimated costs to be deposited with the Clerk of the Supreme Court of the United States, in order to perfect * * * plaintiff's petition [for] certiorari', to review a decision of the Supreme Court of Florida, 49 So.2d 340, affirming a decree, dated January 18, 1950, which granted a divorce to defendant from plaintiff on the ground of cruelty.

In August, 1948 plaintiff filed in the lower court a bill against defendant for a divorce a mensa on the ground of desertion; defendant appeared and was represented by counsel; the case was heard in open court; a decree dated November 15, 1948 granted plaintiff a divorce a mensa on the ground of desertion, allowed her alimony of $100 per week and custody of her child and $25 per week for his support. Before defendant appeared, after two returns non est, plaintiff obtained appointment of a receiver to seize defendant's property, the receiver seized property of defendant, defendant appeared and, among other things, claimed to be a resident and citizen of Maryland. The court enjoined defendant from disposing of certain property, but in December, 1950 disposition of the property, payment of the proceeds into court, and withdrawal thereof upon deposit of certain shares of stock, to the value of $28,000, now held by the clerk, were approved by the court. See Code and 1947 Supp., Art. 16, secs. 16, 38, 141. Neither the decree of November 15, 1948, nor the prior pleadings, proceedings or evidence are before us. Plaintiff alleges that defendant asserted the improper conduct of plaintiff and the court by its decree determined that defendant was at fault and plaintiff free from fault. Defendant denies that he asserted the improper conduct of plaintiff as a defense to her suit.

On March 28, 1949 defendant filed in Florida a bill for divorce a vinculo on the ground of cruelty. Plaintiff alleges 'that the facts on which the claim of cruelty was based are identical with the defense asserted by [defendant] in defense of the Maryland * * * case, which defense was decided * * * adverse [sic] to [defendant]'; that nothing alleged in the Florida bill or proved in the Florida proceedings 'occurred subsequent to the Maryland decree of November 15, 1948'; that the Maryland decree has already determined the matters and issues therein involved in favor of plaintiff, the matter was res judicata, and, hence, the Maryland decree was entitled to full faith and credit by the Florida court and that plaintiff there defended on those grounds. Plaintiff does not allege that defendant was not a resident of Florida or that she denied jurisdiction of the Florida court on that ground.

By a decree dated January 18, 1950 the Circuit Court for Dade County, Florida, granted defendant a divorce a vinculo on the ground of cruelty. The decree provided, inter alia, '(6) That nothing in this decree shall be held or construed to relieve the plaintiff in any manner from complying with the support and maintenance provisions of that certain decree rendered by the Circuit Court No. 2 of Baltimore City, State of Maryland, on the 15th day of November, 1948, in the case of Mary B. Johnson, Plaintiff, v. James Nelson Johnson, et als., Defendants exemplified copy of which decree has been introduced herein as a part of Plaintiff's Exhibit No. 3.' Plaintiff appealed from this decree to the Supreme Court of Florida on the ground that the matter was res judicata in that the Maryland court had previously made a determination of the identical issues and facts in favor of plaintiff. On January 12, 1951 the decree was affirmed, without opinion, by the Supreme Court of Florida.

Defendant says he was required [by the Maryland court] to pay to plaintiff's counsel a fee of $1,000 and [by the Florida court] an additional $2,500 for counsel fees for her counsel in the Florida case plus an allowance to her for expenses of approximately $1,300. Defendant denies that the facts on which his claim of cruelty is based are identical with the defense asserted by him in the Maryland case, admits that nothing alleged or proved in the Florida case occurred after November 15, 1948, but denies that the Maryland court had already determined the matters and facts involved in the Florida divorce or that the matter was res judicata, or that plaintiff defended solely on those grounds and avers that she defended the case fully on the merits.

Plaintiff has filed in the Supreme Court of the United States a petition for certiorari to review the decree of the Supreme Court of Florida on the ground that a constitutional question is presented by denial of full faith and credit to the Maryland decree. At the argument it was stated that the Supreme Court has extended the time for filing the record on the application for certiorari (perhaps because of this appeal to this court) but that the operation of the Florida divorce decree has not been stayed, by the Supreme Court of Florida or by the Supreme Court of the United States, pending the application for certiorari.

On May 14, 1951 plaintiff filed in the lower court, in the 1948 case, an 'amended petition for support and maintenance', in which she alleged the matters above stated, and that she is without adequate funds to pay the costs of printing and other charges required by the rules of the Supreme Court in connection with her application for certiorari, defendant has ample funds and the financial ability to pay these costs, the court, in its decree of November 15, 1948, has jurisdiction over the subject matter, and the Florida decree of January 18, 1950 recognizes the court's continuing jurisdiction, and prayed that the order [decree] dated November 15, 1948 be amended to increased the maintenance provision to include all costs required to be deposited in the Supreme Court and other costs which have been advanced to perfect her petition for certiorari. After a hearing on the facts, as to the financial condition of the parties, the decree dated July 30, 1951 was filed. From this decree defendant has appealed.

Although the litigation between these parties centers around questions of 'divisible divorce' jurisdiction and recent Supreme Court decisions under the full faith and credit clause, the questions now before us do not depend solely or primarily upon the full faith and credit clause. That clause made the defense of res judicata a constitutional question when it is based on a judgment of a state court of another state. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S.Ct. 208, 88 L.Ed. 149. Before the Constitution the courts of the several colonies or states were deemed foreign to each other, and judgments of such courts were in other colonies or states sometimes accepted only as prima facie evidence of what they purported to decide. On the other hand, not until 1895 was it established, by a five-to-four decision of the Supreme Court, that a French or Canadian judgment is in a federal court entitled to less than full faith and credit as res judicata and is only prima facie evidence of what it purports to decide. Hilton v. Guyot, 159 U.S. 113, 180-181, 16 S.Ct. 139, 40 L.Ed. 95; Ritchie v. McMullen, 159 U.S. 235, 16 S.Ct. 171, 40 L.Ed. 133. Under the Constitutions, as independent of it, the jurisdiction of the court over the person and the subject matter is always open to examination.

Plaintiff's basic purpose, in her application for certiorari, is to obtain a reversal of the Florida divorce decree as involving a denial of full faith and credit to the Maryland decree. This is the proper way to raise this question, i. e., by direct appeal from the Florida Supreme Court to the Supreme Court of the United States. Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347; Davis v. Davis, 305 U.S. 32, 40, 59 S.Ct. 3, 83 L.Ed. 26. Though pursuing the proper remedy, plaintiff also suggests that the Maryland courts might ignore the Florida decree because it denied full faith and credit to the earlier Maryland decree. This suggestion is groundless. As the New York Court of Appeals said in Lynn v. Lynn, 302 N.Y. 193, 97 N.E.2d 748, 751, 'Nevada's asserted denial of full faith does not justify or permit retaliation by any other state. As the decisions make plain, plaintiff's only remedy to correct the alleged error was by direct appeal from the Nevada judgment through the Nevada courts and, if necessary, to the Supreme Court of the United States. See Morris v. Jones, 329 U.S. 545, 552, 67 S.Ct. 451, 91 L.Ed. 488; Treinies v. Sunshine Mining Co., 308 U.S. 66, 77, 60 S.Ct. 44, 84 L.Ed. 85; Roche v. McDonald, 275 U.S. 449, 455, 48 S.Ct. , 143, 72 L.Ed. 365; Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 52 L.Ed. 1039; see also, Estin v. Estin, supra, 296 N.Y. 308, 312, 73 N.E.2d 113, 114, affirmed 334 U.S. 541, 68 S.Ct. 1213, ; Restatement, Judgments, § 42, Comment a, p. 165.' This concise statement is fully supported by the Supreme Court cases cited.

To determine whether the Florida courts denied full...