Schwartz v. Schwartz

• Decision Date: 29 May 1975
• Docket Number: No. 905,905
• Citation: 338 A.2d 386,26 Md.App. 427
• Parties: Jeanne SCHWARTZ v. George M. SCHWARTZ.
• Court: Court of Special Appeals of Maryland

Page 427

26 Md.App. 427

338 A.2d 386

Jeanne SCHWARTZ v. George M. SCHWARTZ.

No. 905.

Court of Special Appeals of Maryland.

May 29, 1975.

Certiorari Denied Sept. 8, 1975.

Robert Anthony Jacques, Rockville, for appellant.

Robert R. Michael, Gaithersburg, with whom were Alan D. Massengill, Massengill & Michael, Gaithersburg, and William John Mason, Washington, D. C., on the brief, for appellee.

Argued before MORTON, GILBERT and LOWE, JJ.

LOWE, Judge.

Conflicts among courts of the States cannot be avoided when litigants are jurisdictional nomads. The parties here were married in Florida wherein they lived together as husband and wife. Presumably, the matrimonial sea was either too calm or too turbulent for after eight years they were divorced in that State. Apparently the divorce did not erase the affection each had for the other. They continued to live together in the same home, and while their marriage was not blessed with a child, their subsequent relationship was. Two years after their divorce their child was born.

Since each of the proceedings we are about to detail dealt with custody, an in rem action, the jurisdiction of the hearing court depended in the first instance on the domicile of the child. Renwick v. Renwick, 24 Md.App. 277, 284, 330 A.2d 488. The Court of Appeals has held that a child's domicile is that of the parent with legal custody, Taylor v. Taylor, 246 Md. 616, 618-619, 229 A.2d 131; accord, Seidlitz v. Seidlitz, 23 Md.App. 327, 336, 327 A.2d 779. After issuing a decree, however, the rendering court retains jurisdiction to modify its decree, even though the domicile of the child may then be elsewhere. Berlin v. Berlin, 239 Md. 52, 210 A.2d 380. With these principles in mind, we proceed to describe the multitude of litigation to which this child has been subjected.

The Child was five years old before Mrs. Schwartz chose to leave her Florida domicile. She went to her parents' home in Bethesda, Maryland. Soon thereafter, with the help of private detectives, she obtained physical custody of the child contrary to an oral understanding with Mr. Schwartz. Mrs. Schwartz then sought and received temporary custody in the Circuit Court for Montgomery County. Assuming that Mrs. Schwartz was at that time domicled in Maryland, ¹ the court had jurisdiction to render the custody decree. Taylor, supra. Over a year of unpleasantness ensued including contempt hearings regarding alleged violations of visitation privileges.

Mrs. Schwartz then moved out of state. Although she denied that her attorney was not apprised of her whereabouts, no one seemed to know that she had taken up residence in California. Thus, when the Maryland court heard a petition for contempt filed by Mr. Schwartz, Mrs. Schwartz was not physically present, although though her attorney and her parents were. The hearing judge transferred temporary custody to Mr. Schwartz. Even though at this point Mrs. Schwartz and the child were living in California, the Maryland court, having rendered the initial custody decree, had jurisdiction to modify the decree to give Mr. Schwartz temporary custody under the continuing jurisdiction doctrine. Berlin, supra, 239 Md. 52, 210 A.2d 380. Mr. Schwartz, himself, engaged private detectives to find mother and child and through their efforts, physically took custody of the child and returned with her to his Florida home where he promptly petitioned the Florida court for permanent custody and other relief.

Having commenced those proceedings in Florida where he lived, which was thereby the legal residence of his child, Taylor, supra, 246 Md. 616, 229 A.2d 131, Mr. Schwartz did not personally reappear in Maryland when Mrs. Schwartz apparently returned here and petitioned the Montgomery County court for restoration of custody. Mr. Schwartz's motion to dismiss that proceeding filed by his counsel was denied and the Maryland chancellor awarded temporary custody back to Mrs. Schwartz. Again, the Maryland court had jurisdiction to modify its decree under the continuing jurisdiction doctrine. Berlin, supra, 239 Md. 52, 210 A.2d 380.

When Mrs. Schwartz and her own private detectives were physically unable to remove the child from Florida, Mrs. Schwartz filed a Writ of Habeas Corpus there, based on her Maryland decree. The Florida court consolidated Mrs. Schwartz's writ petition with Mr. Schwartz's custody petition without objection and proceeded with a full custodial hearing which resulted in custody of the child being awarded to her father on October 2, 1973. No appeal was entered. ² Mrs. Schwartz's Maryland proceeding and Mr. Schwartz's Florida proceeding were practically simultaneous, although the Florida decree was last issued. Both courts had jurisdiction to hear the custody proceeding; Maryland under the continuing jurisdiction doctrine, Berlin, supra, 239 Md. 52, 210 A.2d 380, Florida because the child was domiciled there, Renwick, supra, 24 Md.App. 277, 330 A.2d 488.

Under the liberal visitation provisions of that Florida decree the child visited her mother in California for a week at the end of 1973 and arranged for a six week visit the following summer in accordance with the decree. On this occasion, however, the child was not returned to her father. Unbeknown to him, Mrs. Schwartz had taken her back to her parents' home in Bethesda.

Mr. Schwartz filed a petition for Writ of Habeas Corpus which Writ was signed by Judge Ralph G. Shure, who upon the voluntary appearance of mother and child and assurance of subsequent appearance under oath, assigned the issue for hearing before Judge H. Ralph Miller. Following that evidentiary hearing, Judge Miller signed an order affirming Judge Shure's Writ and directing the delivery of the child to Mr. Schwartz, thereby extending 'full faith and credit' to the Forida decree. Mrs. Schwartz appeals that ruling by asserting lack of jurisdiction in the Florida court. She claims now what neither she nor the minor child were domiciled in Florida and further that she appeared for the limited purpose of implementing the Maryland decree.

The record reflects that at the time the Florida jurisdiction was invoked the child was in the custody of her father whose residence is and was throughout, Florida. Furthermore, by petitioning the Maryland courts to restore custody to her, Mrs. Schwartz impliedly admitted that her husband had lawful custody. As we have previously noted, the domicile of the child-determinative of custody jurisdiction, Renwick, supra, 24 Md.App. 277, 330 A.2d 488-follows that of the parent with legal custody, Taylor, 246 Md. at 618-619, 229 A.2d 131. The Florida court therefore had jurisdiction, albeit concurrent with Maryland's continuing jurisdiction. Since a custody decree is 'conclusive of the status of the child at...