Seidlitz v. Seidlitz

• Decision Date: 15 November 1974
• Docket Number: No. 57,57
• Citation: 327 A.2d 779,23 Md.App. 327
• Parties: Bertram E. SEIDLITZ v. Arleen B. SEIDLITZ.
• Court: Court of Special Appeals of Maryland

Page 327

23 Md.App. 327

327 A.2d 779

Bertram E. SEIDLITZ v. Arleen B. SEIDLITZ.

No. 57.

Court of Special Appeals of Maryland.

Nov. 15, 1974.

Frank M. Kratovil, Hyattsville, for appellant.

Suzanne M. Snedegar, Chevy Chase, with whom were Levitan, Ezrin, Cramer, West & Weinstein, Chartered, Chevy Chase, on the brief, for appellee.

Argued before MOYLAN, POWERS and LOWE, JJ.

POWERS, Judge.

Bertram E. Seidlitz filed an original petition in the Circuit Court for Prince George's County, in equity, asking the court to modify a District of Columbia divorce decree by reducing the amount of alimony and child support payable to his former wife, Arleen B. Seidlitz, and by changing the terms of her custody of their three minor children by granting custody to him during each summer vacation.

The petition contained numerous allegations designed to show changes in relevant circumstances between the time of the decree in August 1971, and the time the petition was filed.

A subpoena and a copy of the petition were served upon Mrs. Seidlitz in Prince George's County. She filed a motion under Maryland Rule 323 for dismissal of the case, and raised several preliminary objections. Among them were illegality of service of process, later abandoned, and lack of jurisdiction in the court over the subject matter. Mr. Seidlitz filed an answer in opposition.

A hearing on the motion was held before Judge Samuel W. H. Meloy. Facts relevant to the question of subject matter jurisdiction were contained in the petition, the motion, the answer to the motion, and statements by counsel. They were not disputed. Judge Meloy took them as being properly before the court. We shall do likewise.

The parties were married in the District of Columbia in 1960. Later they lived in Montgomery County, Maryland. Three children were born during their marriage. The parties separated in 1969. In June, 1970, they entered into a 'Separation and Property Settlement Agreement'. In September, 1970, Mrs. Seidlitz and the children went to live in Fairfax County, Virginia. They have lived there continuously since that time. In August, 1971, Mr. Seidlitz obtained an absolute divorce in the District of Columbia, on the grounds of voluntary separation for more than one year. The decree awarded custody of the minor children to Mrs. Seidlitz, subject to reasonable visitation rights of Mr. Seidlitz. The decree further provided:

'That the Separation and Property Settlement Agreement dated June 16th, 1970 be incorporated into the Decree of Divorce by incorporation and shall survive this Decree and shall not merge therewith.'

Mr. Seidlitz moved to Prince George's County, Maryland, in August, 1972, and was living there when he filed the petition in this case.

In arguing at the hearing that the court lacked jurisdiction to modify the decree as to custody or child support, counsel for Mrs. Seidlitz conceded that the court would have jurisdiction with respect to the question of alimony. The court was not, however, asked to consider or rule upon the question of alimony, and did not do so. ¹

On 23 November, 1973, concluding that it lacked subject matter jurisdiction over the parties' minor children, the court filed an order

'* * * that defendant's preliminary objection with respect to subject matter jurisdiction is sustained and the plaintiff's Petition for Modification of Divorce Decree be and the same is hereby dismissed to the extent that plaintiff seeks modification relating to custody and visitation rights, maintenance and support of the parties' minor children.'

The appeal now before us was entered on 20 December 1973 by Mr. Seidlitz from that order. At the argument in this Court counsel for both parties agreed that the question of modifying the decree as to alimony remains before the lower court, undecided. Because a question remains undecided, Mrs. Seidlitz included in her brief a motion to dismiss the appeal. She says, citing Code, Courts Art., § 12-301, that a party may appeal from a final judgment, but because the order from which this appeal was taken did not decide the question of alimony, it was not final, but interlocutory. Maryland Rule 605 a. She moved that the appeal be dismissed, as not allowed by law. Maryland Rule 1035 b(1).

The appeal was allowed by law, and the motion to dismiss will be denied. The law that allowed the appeal was Code, Art. 5, § 19, which was in effect when the appeal was taken. It said:

'Any party to the proceedings, aggrieved by an order of any court of this State the effect of which is to deprive any parent, grandparent or natural guardian of the care and custody of a child, may appeal to the Court of Special Appeals from such order. Upon any such appeal the facts of the case shall be reviewed by the Court of Special Appeals as in appeals from final decrees entered by courts of equity.' (Emphasis added).

Section 19 was repealed, effective 1 January 1974, by § 2 of ch. 2, Acts of 1973, 1st. Sp.Sess., the same act which in § 1 enacted the Courts and Judicial Proceedings Article of the Code. By § 18 of that act, the provisions of the Courts Article 'apply to all proceedings commenced after December 31, 1973, and, so far as practicable, to all proceedings then pending.'

The right of a party to appeal from a final judgment is now stated in the Code, Courts Article, § 12-301. The Revisor's Note to § 12-301 says that it consolidates and simplifies the basic provisions of Article 5, §§ 1, 2, 3, 5, 6, 8, 12, 13, and 19. We cannot read the substance of former Art. 5, § 19, in § 12-301. It may be that the right of appeal given in old § 19 was thought to be an appeal from a final order, and for that reason was not separately mentioned in the writing of § 12-301.

We think, however, that the right of appeal given in former Art. 5, § 19, was a right to appeal from an interlocutory order. No separate statute would have been necessary to authorize an appeal from a final order. The very wording of § 19, that 'the facts of the case shall be reviewed by the Court of Special Appeals as in appeals from final decrees' underscores that the right being given was to appeal from an interlocutory order. As such, the right of appeal given in § 19 was analogous to some of the rights given in Code, Art. 5, § 7, now included in Courts Article, § 12-303, to appeal from interlocutory orders.

The Court of Appeals in Funger v. Mayor of Somerset, 244 Md. 141, 223 A.2d 168 (1966), considered the interplay of Art. 5, § 7 and Maryland Rule 605a. The Court concluded at 150, 223 A.2d at 173:

'We think the right of appeal in the classes of actions enumerated in § 7 is general and not affected by Rule 605 a.'

The same reasoning applies to the right of appeal given in Art. 5, § 19. In any event, we could hardly consider it 'practicable' to apply a change of law to a pending appeal if the effect of the change is to deny a right of appeal which theretofore existed. The appeal was not affected by Rule 605 a, and the motion to dismiss is denied.

Appellant argued below and here that the court of the District of Columbia which rendered the decree retained continuing jurisdiction to modify it; that the courts of Maryland have jurisdiction to enforce or modify a custody and support decree of another state; therefore a Maryland court may exercise the continuing jurisdiction to modify the decree which was retained by the District of Columbia court. The argument is built upon a fallacy, and cannot prevail.

The equity courts of Maryland have jurisdiction over the custody, guardianship, maintenance, and support of children, and a court may from time to time modify its decree or order concerning a child. Code, Art. 16, § 66, subsection (a), the substance of which now appears as Courts Article, § 3-602.

Before it may exercise this authority, however, the Maryland court must have jurisdiction over the children. In Miller v. Miller, 247 Md. 358, 231 A.2d 27 (1967), the equity court had entered an order modifying custody previously awarded by a Florida decree. In reversing the order of the lower court the Court of Appeals said, at 362-363, 231 A.2d at 30:

'As to the merits, the conclusion of the lower court that it had jurisdiction over the children because it had jurisdiction over the parents was erroneous and must be reversed. Rather, since the children were neither present nor domiciled in Maryland, it is clear that the court was without jurisdiction to either pass an order concerning the right of the father to visit and communicate with the children or to find the mother in contempt for failing to comply therewith.

'In Zouck v. Zouck, 204 Md. 285, 104 A.2d 573, 105 A.2d 214 (1954) and Naylor v. Naylor, 217 Md. 615, 143 A.2d 604 (1958), we recognized the 'domicile' rule set forth in the Restatement, Conflict of Laws, § 117, to the effect that a state court has jurisdiction to determine custody of a child only if the domicile of the child is within the state. See also Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). As was pointed out in Zouck, 204 Md. at p. 302, 104 A.2d at pp. 580-581:

'The term jurisdiction imports not only power over the parties to the action but the right to adjudicate as to the subject matter in a given case. In matters of custody, jurisdiction of the person who seeks custody is not enough. There must be jurisdiction over the one of whom custody is sought for the court to have jurisdiction of the subject matter.' (Italics ours.)

This is so because as was said in 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...