Lohman v. Lohman

• Decision Date: 01 September 1992
• Docket Number: No. 130,130
• Citation: 626 A.2d 384,331 Md. 113
• Parties: Alfred Millman LOHMAN, Jr. v. Melva Lee LOHMAN. ,
• Court: Maryland Court of Appeals

Page 113

331 Md. 113

626 A.2d 384

Alfred Millman LOHMAN, Jr. v. Melva Lee LOHMAN.

No. 130, Sept. Term, 1992.

Court of Appeals of Maryland.

June 25, 1993.

Edward John Skeens (on brief), Suitland, for petitioner.

Terrence J. McGann (on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

We issued a writ of certiorari to determine whether a circuit court has jurisdiction to adjudicate issues involving marital property and alimony sought by a nonresident spouse more than 90 days after granting the other spouse, a Maryland resident, an absolute divorce based upon service of process by publication.

I.

Petitioner, Alfred Millman Lohman, Jr., and respondent, Melva Lee Lohman, were married May 7, 1954, in Washington D.C. Three children were born of the marriage, and at the time of the proceedings below, each was a fully emancipated adult. In April 1987, the parties agreed to separate, but continued to reside in the same marital home, albeit in different bedrooms, which was located at 8501 Oldham Drive in Upper Marlboro.

On June 20, 1989, Ms. Lohman filed in the Circuit Court for Prince George's County a Complaint for Absolute Divorce and for Other Relief along with a Petition for Ex Parte Injunction. The petition stated:

"1. That [Ms. Lohman] filed her Complaint for Absolute Divorce and For Other Relief.... Service of process has not been had upon [Mr. Lohman] as of the filing of this Petition.

"2. That [Mr. Lohman] has embarked on a course of action of harassment of [Ms. Lohman]. He has advised [Ms. Lohman], as well as the adult children of the parties that it is his intention to remain in the home and continually harass her, and he is going to strip the household of all of her belongings while she is away on vacation, and that she will never see them again.

"3. That [Ms. Lohman] will be leaving on vacation ... and ... it would be in the interests of justice for the Court to issue an immediate Ex Parte Injunction, ordering and directing [Mr. Lohman] to stay away from the family home, to cease his course of action of harassing and tormenting [Ms. Lohman], and to not remove or dispose of any household goods, furniture or furnishings, or any other items of personal property from the family home."

An ex parte injunction was granted the same day, and it ordered Mr. Lohman "to cease his course of action of harassing and tormenting [Ms. Lohman], and to not remove or dispose of any household good [sic], furniture and furnishings from the family home, pending a hearing in these proceedings." ¹ A copy of that injunction was served on Mr. Lohman by Ms. Lohman's attorney on June 22, 1989. Mr. Lohman was not served at that time with a copy of either the Petition for Ex Parte Injunction or the Complaint for Absolute Divorce. Process was not issued on the Complaint for Absolute Divorce until June 28, 1989, and Mr. Lohman was never personally served with a copy of the complaint.

Upon being served with the ex parte injunction, Mr. Lohman left the marital home and failed to notify his family, friends or Ms. Lohman of his whereabouts. Unable to effect service of the complaint on Mr. Lohman, Ms. Lohman asked the circuit court for leave to proceed by publication. In her affidavit in support of that motion, Ms. Lohman set forth her attempts to locate and serve Mr. Lohman. She stated that she believed Mr. Lohman, who had retired from the U.S. Postal Service in 1988, had gone to live with his sister in Alamosa, Colorado, but that the attempted service by certified mail to his sister's address with restricted delivery to Mr. Lohman was returned and marked "unclaimed." She stated that telephone directories and the motor vehicle administrations in Maryland, Virginia and the District of Columbia provided no assistance in locating Mr. Lohman. The affidavit also related that Ms. Lohman had contacted her husband's cousin to ascertain his whereabouts but that his cousin was unaware of where Mr. Lohman was residing. She also stated that, despite speaking by telephone with his adult children during the Christmas holidays of 1989, Mr. Lohman refused to disclose his whereabouts to them. ²

On the basis of her affidavit, Ms. Lohman's Motion to Proceed by Order of Publication was granted by the circuit court on February 2, 1990. ³ In early March, an order of publication, reciting the substance of the complaint and the relief sought by Ms. Lohman, was duly published in a local newspaper published in Prince George's County in each of three consecutive weeks. A copy of the order of publication was also mailed to Mr. Lohman at the address of the former marital home of the parties. Not surprisingly, no answer to the complaint was ever filed and Ms. Lohman moved for an Order of Default, which was granted on June 27, 1990. A Judgment of Absolute Divorce was entered on September 18, 1990. Although in her complaint Ms. Lohman requested alimony, attorney's fees, and a monetary award reduced to judgment, the Judgment of Absolute Divorce did not address any of these issues.

On June 27, 1991, Mr. Lohman filed in the Circuit Court for Prince George's County a pleading entitled Petition to Adjudicate Marital Property of the Parties. In that pleading, he gave his address as P.O. Box 542, Lake Como, Florida. The petition alleged that the parties had acquired substantial marital property during their thirty-five years of marriage, including the marital home, several motor vehicles, various retirement benefits and bank accounts. The petition requested the court to adjudicate the marital property and grant to Mr. Lohman both a monetary award and an award of alimony. Ms. Lohman filed a Motion to Dismiss the petition.

Following oral argument on November 18, 1991, the circuit court granted Ms. Lohman's motion with prejudice. In an oral opinion, the circuit court reasoned that, although in personam jurisdiction was never acquired over Mr. Lohman, the marital relationship was effectively severed by the court with only in rem or quasi in rem jurisdiction. The circuit court ruled that Mr. Lohman's right to claim alimony was extinguished at the time of the severance of the marital relationship. The circuit court also reasoned that in accordance with Maryland Code (1991 Repl.Vol.), § 8-203(a) of the Family Law Article, Mr. Lohman's right to a determination of marital property and a monetary award was extinguished upon the granting of the absolute divorce, since the court did not expressly reserve the authority to make that determination within ninety days of the divorce decree. Mr. Lohman filed an appeal from that judgment to the Court of Special Appeals.

II.

Using the same rationale as the circuit court, the Court of Special Appeals affirmed the circuit court. Lohman v. Lohman, 93 Md.App. 588, 613 A.2d 1015 (1992). In discussing service of process and jurisdiction over the defendant, Mr. Lohman, the intermediate appellate court stated:

"In the Petition for Ex Parte Injunction there is a representation that the appellee filed a complaint for absolute divorce, which contained prayers for other relief and for a rule to show cause. Although appellant was never personally served with the complaint, he was on notice of some pending action when he received the Ex Parte Injunction. He failed to take any action to determine the bases for the injunction. Had he reviewed the court records, which included the injunction, it would have been crystal clear to him that a petition for absolute divorce had been filed. Instead of acting in a responsible way, he absconded from the State in an effort to avoid service. Specifically, appellant left the State, 'went who knows where[,]' and did not contact appellee after leaving.

"In light of appellant's disappearance, the order of publication was proper service of process according to Maryland Rules 2-121 and 2-122....

"Appellee filed an affidavit indicating that appellant absconded from the State, and that service of process was attempted but was returned and marked 'unclaimed.' Appellee then effected service by mailing a copy of the Order of Publication to the appellant at his last known address, and posting a copy of the order on the courthouse door. Thus, appellee complied with Maryland Rules 2-121 and 2-122, and appellant received fair notice of the impending hearing."

93 Md.App. at 592-93, 613 A.2d at 1017-18 (citations omitted). Finding service of process to have been properly effected, and consequently finding the circuit court to have acquired jurisdiction over Mr. Lohman, the intermediate appellate court went on to conclude that Mr. Lohman's right to claim alimony had been extinguished. The intermediate appellate court stated:

"It is a long standing rule in Maryland that once a divorce is granted and becomes final, the right to award alimony terminates. Wilson v. Wilson, 87 Md.App. 547, 552-53, 590 A.2d 579 (1991) (quoting Altman v. Altman, 282 Md. 483, 490-92, 386 A.2d 766 (1978); Upham v. Upham, 238 Md. 261, 265, 208 A.2d 611 (1965)). This rule is codified in § 11-101(a) of the Maryland Annotated Code Family Law Article, which states:

(a) Where available.--The court may award alimony:

(1) on a bill of complaint for alimony; or

(2) as part of a decree that grants:

(i) an annulment;

(ii) a limited divorce; or

(iii) an absolute divorce."

93 Md.App. at 591, 613 A.2d at 1017. The intermediate appellate court then distinguished two decisions of this Court, Altman v. Altman, 282 Md. 483, 386 A.2d 766 (1978) and Dackman v. Dackman, 252 Md. 331, 250 A.2d 60 (1969), overruled on other grounds by Eastgate Assocs. v. Apper, 276 Md. 698, 350 A.2d 661 (1976), which permitted a claimant to recover alimony following the awarding of a foreign divorce decree to her former spouse by a forum lacking personal jurisdiction over the claimant. ⁴

In Altman, a wife instituted a suit in the circuit court for a divorce a mensa...