Taylor v. Taylor

• Citation: 246 Md. 616,229 A.2d 131
• Decision Date: 05 May 1967
• Docket Number: No. 673,673
• Parties: Elaine R. TAYLOR v. Irving A. TAYLOR.
• Court: Court of Appeals of Maryland

Page 616

246 Md. 616

229 A.2d 131

Elaine R. TAYLOR v. Irving A. TAYLOR.

No. 673.

Court of Appeals of Maryland.

May 5, 1967.

William E. Brooke, Hyattsville, for appellant.

Selma W. Samols, Washington, D. C. (Roberta Johnson, Los Angeles, Cal., on the brief), for appellee.

Before HORNEY, MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

FINAN, Judge.

Plaintiff-appellee, Irving A. Taylor, and defendant-appellant, Elaine R. Taylor, were married on July 29, 1956 in Washingto, D. C. Two children were born on this union. On October 22, 1964, the Superior Court of the State of California in and for Los Angeles County awarded custody of the two children to the appellant. On March 24, 1965, appellant was granted in interlocutory judgment of divorce, which provided for certain elaborate visitation rights in the appellee. On October 19, 1965, a final judgment of divorce was entered. Previous to the entering of the final judgment of divorce, the appellant and her children took up permanent residence in the State of Maryland with the sanction of the California court.

On October 13, 1966, the appellee obtained a modification of the visitation provision. Further litigation between the parties is pending in the California courts relating to support.

Appellee filed in the Circuit Court for Prince Georges County a 'PETITION TO ENFORCE FOREIGN ORDER' on November 17, 1966, seeking enforcement of the October 13, 1966 California order relating to visitation rights. Appellant answered the amended petition on December 6, 1966, admitting jurisdiction in the Maryland court and asked that the appellee be denied visitation rights or if visitation rights be granted that appellee undergo a psychiatric examination; that the Department of Parole and Probation make a thorough investigation of appellee's activities; and that provisions be made for the children's protection during visitation as a prerequisite thereto. On the same day appellant filed a 'CROSS BILL OF COMPLAINT FOR INJUNCTION AND SUPPORT,' accompanied by affidavit, asking: (1) that the appellee be enjoined 'from coming into contact with the minor children'; or, (2) that if visitation is granted to the appellee the appellant's and children's welfare be protected; (3) that appellee be required to pay the arrearage of support under the California decree; and (4) that the court provide for adequate child support and counsel fees. Appellee then filed a motion to dismiss the cross-bill on the ground that the court lacked jurisdiction to hear it.

At the hearing held on December 22, the court dismissed the cross-bill for lack of jurisdiction, and without taking any testimony, passed an order on December 23, 1966, granting the appellee visitation periods on December 26 and 27, 1966.

The question before the Court is whether the courts of this State have jurisdiction relating to the protection and care of infants, domiciled in Maryland, where there is a subsisting order from a prior hearing in another state with original jurisdiction, awarding custody of the infants and setting forth the conditions of such custody and terms for their support.

The worthy chancellor felt that the full faith and credit clause, Article IV, § 1 of the Constitution of the United States, foreclosed the courts of this State from taking action, stating:

'This Court determines that it is without jurisdiction to determine support in this matter because it is the responsibility of the Court of California to resolve this matter in the final determination of the matter which is presently before it and of which it has jurisdiction. The defendant here today was the original plaintiff there and is still the original plaintiff, and the petitioner here today is the original defendant. Thus there is no question that the Court there has that jurisdiction.

'In addition thereto, the pertinent issue before this Court is custody and visitation of these two small children. And that court has made that determination at a time wherein it had jurisdiction and had all of the parties before it. Therefore, the relief prayed in the cross-bill of complaint for injunction and support will be dismissed and the Court will extend full faith and credit to that portion of the decree of the court of California as provided in Article 4, Section 1 of the Federal Constitution. But because of the facts in this case and by the authority conferred upon me by the laws of the State of Maryland under Article 16, and because it is this Court's opinion that the orders-which I will emphasize and repeat for emphasis are only interlocutory orders-are indefinite as to the question of visitation, this member of the Court will attempt to interpret them because of the overwhelming desirability of every parent having the right to visit with his or her children.'

It is a well-established principle of law that the state in which an infant is domiciled has jurisdiction over it. Maryland has so previded by statute, Art. 16, § 66(a), Code (1957), which is merely declaratory of equity jurisdiction, Coleman v. Coleman, 228 Md. 610, 613, 180 A.2d 875, 877 (1962); cf. Rethorst v. Rethorst, 214 Md. 1, 133 A.2d 101 (1957), and as a corollary to this proposition, as stated by this Court in Berlin v. Berlin, 239 Md. 52, 55, 210 A.2d 380, 381 (1965), 'the domicile of a minor child, in case his parents are divorced, is that of the parent to whom legal custody has been awarded. * * *.' 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.

In the case at bar there is no dispute over the fact that the mother (appellant) and the infant children are not only physically present in Maryland but are domiciled here.

It is perhaps incumbent upon the Court to distinguish the case at bar from our opinion in Berlin v. Berlin, supra, wherein this Court, speaking through Judge Horney, adopted the 'continuing jurisdiction rule.' In that case at the time of the original award of custody of the children to the mother, she was domiciled in Maryland and the children, who were never before the court, were residing in New York. The Maryland court in awarding custody did so subject to the further order of the court. Subsequently, the mother moved to New York and failed to comply with the terms of the decree concerning the visitation privileges accorded the father. The Maryland court, while the mother and children were in New York, modified the decree and gave custody to the father. It should be pointed out that this Court in Berlin made no attempt to rule that the courts of the State of New York did not, or would not, under proper circumstances have jurisdiction to decide custody by virtue of domicile. Indeed, Professor Stansbury in his article 'Custody and Maintenance Law Across State Lines,' 10 Law & Contemp.Prob., 819, 831-32 (1944), concludes:

'A court of any state that has a substantial interest in the welfare of the child or in the preservation of the family unit of which he is a part, has jurisdiction to determine his custody, and this jurisdiction may...