Karol, In re

• Decision Date: 12 March 1971
• Docket Number: No. 628,628
• Citation: 274 A.2d 407,11 Md.App. 400
• Parties: In the Matter of the Custody of Paul Eugene KAROL, a minor.
• Court: Court of Special Appeals of Maryland

Page 400

11 Md.App. 400

274 A.2d 407

In the Matter of the Custody of Paul Eugene KAROL, a minor.

No. 628.

Court of Special Appeals of Maryland.

March 12, 1971.

T. Joseph Touhey, with whom were Rodney Fletcher, Columbia, and Charles E. Wehland, Ellicott City, on brief, for appellant.

Louis H. Fried, Baltimore, for appellee.

Argued before ANDERSON, ORTH and POWERS, JJ.

ORTH, Judge.

The subject of this case is Paul Eugene Karol, now seven years of age. The son of Eugene M. Karol and Carolyn G. Karol, he is the innocent victim of proceedings pursued in three states by his parents against each other over their domestic difficulties. The question presented on this appeal is narrow in scope. The assessment of fault for the domestic discord, the disruption of the matrimonial status, and the ultimate breaking of the marital bond are not its concern. The issue is simply whether the lower court was wrong in ruling that it was without jurisdiction in the matter of the custody of the child.

Until 1 July 1968 Maryland followed the 'domicile' rule with respect to jurisdiction to determine custody of a child. As stated and applied in Miller v. Miller, 247 Md. 358, 231 A.2d 27, it was to the effect that a state court has jurisdiction to determine custody of a child only if the domicile of the child was within the state. It quoted with approval, at 363, 231 A.2d at 30, Nelson on Divorce, 2nd ed., § 15.32 at p. 287:

'A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res, or the subject matter, being the child's status or his legal relationship to another. If the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right to custody as between the parties even though it does have jurisdiction of the parties, who are the parents of the children.' (emphasis added by the Court of Appeals)

It found the law settled that 'absent jurisdiction over children, a court has neither the power nor the right to judicially determine questions concerning custody and visitation rights.' 247 Md. at 363, 231 A.2d at 30. Since jurisdiction over and the domicile of a child are conterminous, determination of the domicile is essential. The Court said, at 364, 231 A.2d at 31:

'The domicile of children, ordinarily, is the same as that of both or one of the parents. In the case of a separation or divorce, the domicile of a child is that of the parent to whom legal custody has been awarded; if custody has not been determined or fixed, it reposes in the parent with whom the child resides; and if it lives with neither of the parents, the child retains the domicile of the father. * * * The domicile of a parent, or parents, however, is always determined by his or her place of residence coupled with intention that it be permanent and not temporary.' (citations omitted)

So in Miller on a finding that the children were domiciled in Florida because they resided there with their mother who was domiciled there, Maryland was required to give full faith and credit to a Florida custody decree. Compare Taylor v. Taylor, 246 Md. 616, 229 A.2d 131, in which there was no dispute over the fact that the mother and the infant children were not only physically present in Maryland but were domiciled here. See Rethorst v. Rethorst, 214 Md. 1, 133 A.2d 101, of which the Court said in Berlin v. Berlin, 239 Md. 52, 55, 210 A.2d 380: 'In Rethorst, it is interesting to note that Maryland upheld the jurisdiction of the California court in a custody case, in which the infant children involved were physically present with their mother in Maryland, although they were domiciled in California.'

When the General Assembly next met after Miller was decided, it enacted ch. 678, Acts 1968, codified as Code, Art. 16, § 66(f) and made it effective 1 July 1968. It provided:

'In all cases where one party to a marriage, existing or pre-existing, removes or has removed a child or children of the marriage from this State, the courts of equity of this State shall exercise jurisdiction to determine custody or visitation rights of the child or children so removed, if:

(1) Maryland was the matrimonial domicile of the parties or the domicile where the marriage contract was last performed; and

(2) Such court shall have obtained personal jurisdiction of the party so removing the child or children; and

(3) One of the parties to said marriage shall have been at the time of said removal, a resident of the State of Maryland and shall continue to reside therein.

Nothing in this subsection shall be construed in any way to limit or modify other methods by which courts of equity obtain jurisdiction to determine the custody or visitation rights of children.'

It is clear under the statute that a court of equity in this State is not without jurisdiction to determine custody of children and visitation rights with respect to children because the domicile of the children is not in Maryland. The statute awards jurisdiction in the circumstances therein stated upon fulfillment of the conditions therein designated; the domicile of the child is no criterion of jurisdiction. In the instant case if the Circuit Court for Howard County in Equity had jurisdiction to determine the custody of Paul Eugene Karol it could only be under the authority of the statute.

The case before us was decided by the lower court on the pleadings and exhibits before it. The action was commenced on 15 September 1970 by the filing by Mr. Karol of a petition in the Circuit Court for Howard County in Equity. The petition set out that Eugene M. Karol and Carolyn G. Karol were married 28 December 1953 in Baltimore County, Maryland and during the marriage resided in Howard County, Maryland. Mr. Karol presently resided in Howard County and had continuously resided there since 1961. Paul Eugene Karol was born 26 September 1963. In July 1968 Mrs. Karol left Maryland and went to Pennsylvania. She filed a suit for divorce there against her husband. He filed a cross-bill in the action there which resulted in the grant to him of a divorce a vinculo matrimonii from her on 9 September 1970. She had been awarded temporary custody of the child and in April 1970 moved to Florida, taking the child with her. The final decree of divorce contained no disposition of custody because the Pennsylvania Court determined it had no jurisdiction over the child since he was not residing in Pennsylvania. Subsequently Mr. Karol went to Florida and brought the child back to Howard County. The petition alleged certain scandalous conduct by Mrs. Karol and asserted her neglect of the child. It prayed the court to assume jurisdiction over the child and to award custody to Mr. Karol. A certified copy of the decree of 9 September 1970 of the Court of Common Pleas of Lycoming County, Pennsylvania accompanied the petition.

The Circuit Court for Howard County issued an order under date of 18 September for Mrs. Karol to show cause why the relief prayed should not be granted, and upon motion issued an order on 21 September restraining her from removing the child from Maryland pending a final determination of custody, temporary custody being awarded to Mr. Karol.

On 6 October Mrs. Karol filed a 'Motion Raising Preliminary Objection.' It moved that process be quashed because of lack of jurisdiction over her person and the person of the child. It gave as grounds that she was the lawful custodian of the child 'by absolute order of the Court of Common Pleas of Lycoming County, Pennsylvania'; that Mr. Karol was a party to the proceeding; that on 2 September Mr. Karol, while exercising his right of visitation, did forceably abduct the child from his lawful residence and domicile in Florida and without Mrs. Karol's knowledge or consent removed him to Maryland; that there was a warrant issued in Florida for Mr. Karol's arrest for the offense; that he had been served therewith and was on bail ¹; and that Mrs. Karol had never submitted herself to the jurisdiction of the Circuit Court for Howard County. Attached as exhibits were certified copies of documents filed in the Court of Common Pleas of Lycoming County, Pennsylvania. The first was a petition for writ of habeas corpus for custody of a minor child in a civil action at law entitled 'Commonwealth ex rel Carolyn G. Karol v. Eugene M. Karol.' It set out that Mrs. Karol was the natural mother of Paul Eugene Karol and lived in Williamsport, Pennsylvania with the child; that Mr. Karol was the natural father of the child and lived in Ellicott City, Maryland; and that there had been and were at the present time disputes as to custody and visitation rights. It requested a writ of habeas corpus to issue commanding Mr. Karol to come before the court for a hearing. The writ was issued on 24 October 1969 as shown by the second document, a certified copy of the court's order. The third document was a certified copy of an order issued 24 November in the habeas corpus action. It read: '(U)pon stipulation of Counsel for the Parties on the Rule to Show Cause heretofore issued, the same is made absolute and it is Ordered and Directed that Carolyn G. Karol shall have custody of Paul Eugene Karol, born on November 26, 1963.' It then spelled out visitation rights in the father.

Mr. Karol answered the Motion Raising Preliminary Objection. He claimed that the grounds for the motion went to the merits and were not relevant to the issue of jurisdiction. He urged that the court had jurisdiction because: 1) his domicile was Howard County and the child was in Howard County; 2) that Mrs. Karol removed the child from Maryland while she was married to Mr. Karol; 3) that their matrimonial domicile was Maryland and Maryland was where the marriage contract was last performed; 4) that personal service was had on her in Maryland; and 5) that at the time the child was removed from Maryland, Mr. Karol was a resident of Maryland and has so continued to be...