Renwick v. Renwick

• Decision Date: 14 January 1975
• Docket Number: Nos. 190,191,s. 190
• Citation: 330 A.2d 488,24 Md.App. 277
• Parties: Janice RENWICK v. Fred RENWICK (two cases).
• Court: Court of Special Appeals of Maryland

Page 277

24 Md.App. 277

330 A.2d 488

Janice RENWICK v. Fred RENWICK (two cases).

Nos. 190, 191.

Court of Special Appeals of Maryland.

Jan. 14, 1975.

Arnold H. Ripperger, Baltimore, with whom were Mary Ellen Brooke and Brooke & Ripperger, Baltimore, on the brief, for appellant-cross-appellee.

Marvin I. Singer, Baltimore, for appellee-cross-appellant.

Argued before POWERS, GILBERT and LOWE, JJ.

LOWE, Judge.

If the attrainment of maturity is determined by age alone, Dr. and Mrs. Renwick had achieved that state when they were married in 1965 at the respective ages of 36 and 29. If education is a necessary ingredient, his Doctorate of Philosophy in Economics and her training as a nurse would seem to meet that criterion. Even if it were measured by one's position in life, Dr. Renwick's professorship of finance at New York University and Mrs. Renwick's position as instructor of nursing education would obviously meet the standard. If, however, maturity is determined by the ability to resolve differences, the Renwicks are found wanting. Four state courts during a four year period have been unable to help them resolve their differences, nor do we find ourselves able to complete the task.

the facts

After their marriage in 1965 the Renwicks resided in New Jersey where four children were born to them. Irreconcilable differences arise in 1970, and Dr. Renwick removed himself to Reno, Nevada, where he commenced divorce proceedings unilaterally on June 18, 1970. He received a decree on July 13, 1970.

Meanwhile, back in New Jersey, Mrs. Renwick discovered that her home was titled in Dr. Renwick's name alone, and he had transferred it to his brother. The brother promptly dispossessed both the wife and the children soon after she filed suit for divorce, custody and support in May of 1970. Mrs. Renwick's New Jersey decree was not obtained until March 1, 1971 due to the inability to serve process upon Dr. Renwick who was still in Reno. Ultimately he was served in New York ¹ where he had been reemployed following his return from Reno. Dr. Renwick did not appear, answer or specially appear to contest service. Neither did he apprise the New Jersey court of his Nevada decree. Mrs. Renwick's New Jersey decree awarded her custody of the children and provided for their support and alimony.

Dr. Renwick's Nevada decree included precious little support for the children and even that requirement was not fulfilled by him. Although reemployed by New York University, he decided to move to Charles County, Maryland where his mother and brother resided. Mrs. Renwick and her children moved to the Ohio home of her parents before finding the home there where she now resides.

In December of 1972 Dr. Renwick picked up the children and brought them to his home in Maryland for a period which he claimed his wife and he had agreed would be indefinite. Mrs. Renwick denied that allegation and stated that the visit was to be limited to the Christmas holidays. Mrs. Renwick's version is supported by her subsequent acts. When the children had not returned to her by the first of the new year, she immediately commenced efforts to obtain their return. Her initial efforts by telephone were to no avail. Knowing Dr. Renwick had renewed his position with New York University, she instituted Harbeas Corpus proceedings in that jurisdiction. His assertion of a Maryland domicile terminated the New York proceedings. Mrs. Renwick then instituted dichotomized proceedings in the Circuit Court for Charles County, petitioning for issuance of a Habeas Corpus Writ on behalf of the children and for enforcement of the New Jersey support and alimony decree of March 1, 1971. Dr. Renwick responded by answer and a petition for custody, to vacate the New Jersey decree, and to enforce the Nevada decree.

The chancellor denied the Petition for Writ if Habeas Corpus on July 10, 1973, overruled Mrs. Renwick's Motion Raising Preliminary Objection to Dr. Renwick's Petition for Custody on August 6, 1973 and proceeded to hear testimony on the custody question. The chancellor's reasons for denying the preliminary petitions and concluding that the Charles County Circuit Court had jurisdiction to hear the custody question were rested upon Md. Code, Art. 16, § 66(a) (now Courts Art., § 3-602).

In a written opinion dated August 29, 1973, the chancellor found as facts that:

1) Dr. Renwick 'did not acquire a bona fide legal domicile in Nevada and that the Court there lacked jurisdiction to award him a legal divorce.'

2) '. . . Mrs. Renwick was a legal resident of New Jersey when she filed suit and she and the children continued to reside there until several months after the decree was signed. Mr. Renwick was personally served with process although he chose not to appear. The New Jersey decree is therefore, valid as a divorce. It is also valid as to support payments and custody of the children, . . ..'

3) Having found custody jurisdiction here, the best interests of the children were found to be with Dr. Renwick to whom the chancellor awarded custody.

4) Back alimony and support were due Mrs. Renwick in the amount of $16,590.00.

5) The costs of the proceedings were to be paid by Dr. Renwick in addition to $700.00 toward Mrs. Renwick's counsel fees.

On December 6, 1973, pursuant to that opinion an Order was signed from which Mrs. Renwick appeals:

a) the denial of the Petition for Writ of Habeas Corpus and Motion Raising Preliminary Objection;

b) the award of custody of the children to Dr. Renwick; and

c) the amount of counsel fees and expenses awarded Mrs. Renwick.

A cross appeal by Dr. Renwick, on the other hand, questions:

1) the invalidation of the Nevada decree; and

2) the money judgment for child support and alimony.

While these conclude the questions to which we must respond in Appeal No. 190, Appeal No. 191 concerns the same parties and derivative issues. It arose from Mrs. Renwick having taken the children back to Ohio and keeping them there notwithstanding the Charles County decree. This refusal to conform to the custody decree caused her to be found in contempt of the Circuit Court for Charles County. Not having purged herself of that contempt, she was inter alia prohibited from undertaking to collect the pecuniary proceeds of the former decree by Order of March 1, 1974. She had undertaken to accomplish that purpose by proceedings begun in New York.

In reviewing a melange of jurisdictional, procedural and custodial issues such as these, appellate courts must apply differing standards:

'In our review the clearly erroneous rule (Md. Rule 1086) applies to the chancellor's factual findings. But for the reasons set out in Sullivan v. Auslaender, 12 Md.App. 1, 276 A.2d 698, filed May 3, 1971, we must exercise our best judgment in determining whether the conclusion as to custody the chancellor reached on those facts was the best one, best, that is, for the welfare, benefit and interest of the child.' Widdoes v. Widdoes, 12 Md.App. 225, 233, 278 A.2d 100, 104. (Emphasis added).

For reasons hereafter assigned we will have no need to exercise our 'best judgment.' We have concluded that factual findings of the chancellor deprived him of in rem custody jurisdiction and the absence of jurisdiction, in turn, nullified his conclusion that custody should be removed from the mother. Based upon the same factual findings, however, the money judgment stands, but on a different legal foundation since it is derived from the in personam support award made in New Jersey.

The factual gudgeon around which these jurisdictional questions turn is the finding by the chancellor that:

'Based on the evidence in the record . . . we hold that Mr. Renwick did not acquire a bona fide legal domicile in Nevada . . ..'

Seeing nothing in our review of the record to justify declaring that such finding is 'clearly erroneous,' Md.Rule 1086, we affirm the consequent holding that '. . . the Court there lacked jurisdiction to award him a legal divorce.' Naylor v. Naylor, 217 Md. 615, 623, 143 A.2d 604. We must then answer three further jurisdictional questions:

1) whether the New Jersey decree was valid as applied to the divorce and custody proceeding;

2) whether the New Jersey decree was valid as applied to support and alimony; and

3) whether the Circuit Court for Charles County had jurisdiction divorce and custody, in rem

Although Mrs. Renwick filed suit in New Jersey in May of 1970, service of process on Dr. Renwick was not obtained until October 20, 1970. Process was personally served upon him in New York, following his return from Nevada. Having himself relied upon the contention that his Nevada decree, based on nothing more than his alleged domicile and constructive service of process, ² was valid, Dr. Renwick is hard-pressed to protest that same reasoning when applied to the out-of-state service upon him. In any case, the New Jersey court is expressly given jurisdiction in divorce suits by statute when either party is a bona fide resident of New Jersey at the time the cause of action arose and has been such for two years preceding the commencement of the action. N.J.R.S. 2A:34-10. Mrs. Renwick more than fulfilled those criteria.

The validity of the divorce is actually incidental to our main concern, viz., Mrs. Renwick's claim to custody under the New Jersey decree. We find both Maryland and New Jersey in accord with text writers that custody is in the nature of an in rem proceeding (i. e., 'status' of the child) and jurisdictional requirements are satisfied by the domicile of the children. Seidlitz v. Seidlitz, Md., 327 A.2d 779 filed November 15, 1974; Edwards v. Edwards, 8 N.J.Super. 547, 73 A.2d 759, Nelson on Divorce (2nd ed.) § 15.32, at 287.

Once again, relying on the findings of the chancellor, we are in accord with his conclusion that the New Jersey divorce decree and custody award to Mrs. Renwick were valid support and alimony, in personam

Having accepted the chancellor's finding that Dr....