Tvardek v. Tvardek

• Decision Date: 16 February 1970
• Docket Number: No. 203,203
• Citation: 261 A.2d 762,257 Md. 88
• Parties: Stepan F. TVARDEK v. Nancy E. TVARDEK.
• Court: Maryland Court of Appeals

Page 88

257 Md. 88

261 A.2d 762

Stepan F. TVARDEK v. Nancy E. TVARDEK.

No. 203.

Court of Appeals of Maryland.

Feb. 16, 1970.

Henry J. Monahan, Rockville (H. Thomas, Sisk, Laurence Levitan, M. Michael Cramer and Paul H. Weinstein, Washington, D. C., on the brief), for appellant.

Jackson Brodsky, kensington (D. Randolph Cole, Jr., Washington, D. C., on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

We must dismiss the appeal in this case as prematurely taken.

The appellant, Stepan F. Tvardek (Stepan), and the appellee, Nancy E. Tvardek (Nancy), were divorced a vinculo matrimonii by a decree of the Circuit Court for Montgomery County, dated August 25, 1961. This final decree awarded Nancy the custody of the three minor children and awarded her for child support the sum of $50.00 every two weeks. In 1964 Stepan voluntarily elected to increase the child support payments to $130.00 a month.

On October 88 1968, Nancy filed, in the same divorce suit, a Petition to Modify the Order for Support, alleging the above facts and reciting the substantial change of circumstances reguiring an increase in the child support payments. It was also alleged that Stepan was a civilian employee in the Department of the Army being paid at a GS-11 level in the approximate amount of $10,000 a year. The lower court on October 14, 1968, passed an order requiring Stepan to show cause on or before November 15, 1968, at 10:00 A.M. why the Order of August 25, 1961, in regard to child support should not be modified, provided copies of the Petition and Order were served on Stepan 'or his attorney of record' on or before November 5, 1968. On November 4, counsel for Nancy filed a certificate stating that a copy of the Order of Court of October 14, had been 'mailed, First Class, postage prepaid, to Samuel Gordon, Esq., Attorney for Defendant, 8605 Cameron Street, Silver Spring, Maryland, this 31st day of October, 1968.' Mr. Gordon was the attorney of record for Stepan in the suit and not stricken out his appearance prior to the abovementioned proceedings.

On May 13, 1969, Stepan, by new counsel, filed a Motion Raising Preliminary Objections pursuant to Maryland Rule 323 a (2) praying that the Petition and Show Cause Order to increase the child support payments be dismissed. Alleged as grounds for the motion were the following:

'1. The defendant is a resident of the Fed. Rep. of GERMANY. He has not been served in Maryland nor has he consented to the jurisdiction of this Court. And he may not be served in this action under the Constitution and the laws of Maryland or the Due Process Clause of the 14th Amendment to the Constitution.

'2. What plaintiff has attempted to do is to serve process on the former attorney of the defendant. (See Show Cause Order, dated October 14, 1968.) However, such attorney has not represented defendant since the original divorce in this case was granted on August 25, 1961. Defendant has not authorized such attorney to accept Service of Process nor to negotiate or otherwise answer in his behalf.'

An affidavit of Stepan, sworn to in Munich, Germany on May 9, 1969, was attached to the Motion. It stated that he had read the foregoing Motion subscribed by him and 'that the contents thereof are true and correct to the best of his knowledge, information and belief.' This Motion and attached affidavit, together with a Memorandum of Points and Authorities, were mailed to counsel who had filed Nancy's petition for increasing the child support payments.

On May 16, 1969, Nancy filed an Opposition to Motion Raising Preliminary Objections alleging that Code (1957) Art. 16, § 66 conferred jurisdiction upon the Courts of Equity of Maryland, nter alia, to hear all matters relating to the custody and support of minor children and to modify orders or decrees for such custody and support as future situations might demand; that counsel of record had not stricken his appearance under Rule 125 a; and, that service of the Petition to Modify Order for Support had been accomplished in accordance with Rule 306 c, providing for service of a pleading upon an attorney of record for the adverse party unless actual service upon the party is ordered by the court.

Mr. Gordon struck out his appearance as attorney for the defendant on May 23, 1969.

A hearing on the Motion Raising Preliminary Objections was held beofore Judge Pugh on June 27, 1969, who, on the same day, denied the Motion. This denial of the Motion appears on the docket entries, but there is no written order in the case denying the Motion. Stepan entered an appeal from Judge Pugh's 'order of June 27 on July 24, 1969.

Assuming arguendo, that the docket entry of June 27, 1969, was a sufficient order in an equity suit to justify an appeal, nevertheless, we must dismiss this appeal because that 'order' was interlocutory and not a final order from which an appeal will lie to this Court. Although no Motion to dismiss the appeal on this ground was made by Nancy, we will dismiss the appeal for this reason, sua sponte. In the recent case of The Hillyard Construction Co., Inc. v. Lynch, Md.App. 260 A.2d 316 (1970) (Filed January 7, 1970) involving a motion to quash writs of summons because (1) the principal office of the corporation was in Baltimore County, (2) one of the co-defendants was a resident of that county, and (3) neither the corporation nor the individual co-defendant was regularly engaged in business in Worcester County where the suit was filed, Judge Singley stated for the Court:

'We propose to dispose of the appeal, however, for a reason not raised by the appellees, as Maryland Rule 835 a 2 permits, Harkins v. August, 251 Md. 108, 246 A.2d 268 (1968). It has long been established that no appeal will lie from an order overruling a motion to quash a writ of summons, (citing authorities) * * * because it is interlocutory only, and not a final judgment. It is much like the dismissal of a motion to quash a writ of attachment, or of replevin or of an order overruling a demurrer, from none of which will an appeal lie. Mitchell v. Chestnut, 31 Md. 521, 527 (1869); Baldwin v. Wright, 3 Gill 241, 246 (1845); Welch v. Davis, 7 Gill 364 (1848); Reynolds v. Russler, 128 Md. 606, 98 A. 75 (1916); Code (1957, 1968 Repl.Vol.) Art. 5, § 1.

'Our predecessors gave the reason for the rule in Boteler & Belt v. State Use Creditors Chew & Co., 7 Gill & J 109, 113 (1835):

"To permit an appeal from any decision of the Court below, which does not finally settle the rights of the party, or conclude the cause, would enable either plaintiff, or defendant to protract the suit to an almost indefinite period." (260 A.2d at 318).

See also Guerreni v. Sainsbury, 139 Md. 246, 114 A. 874 (1921).

Maryland Rule 323 is taken largely from Federal Rule 12(b). It is to be noted that in the commentary to this Federal Rule (28 U.S.C.A., Rules 12 to 16, page 20) under the heading of 'Operation,' the commentators stated:

'The new Rules have made no change in the law concerning the effect of overruling a motion based on jurisdiction, venue or process. The party simply answers over, preserving his objection, and in the event of an adverse judgment, may raise the point on appeal. Formerly it was indicated that the objection should be renewed in the answer in order to preserve it; but this would seem to be an unnecessary step, and it has been held to be improper.' 16 Cal. State Bar Journal 153.'

The United States District Court for the District of Maryland has indicated that this is the effect of the Federal Rule in Speir v. Robert C. Herd & Co., Inc., D.C.Md., 189 F.Supp. 436 (1960).

In view of the fact that the present case will be remanded to the trial court for further proceedings, and the likelihood that the point raised by Stepan in his Motion Raising Preliminary Objections will be presented to the trial court after the remand, we deem it wise, pursuant to Maryland Rule 885, to express our opinion on the merits of that point so that the expense and delay of another appeal to this Court may possibly be avoided.

In our opinion, the trial court did have jurisdiction over Stepan by the service of notice upon his then attorney of record in the divorce suit. The decision of our predecessors in McSherry v. McSherry, 113 Md. 395, 77 A. 653 (1910) is dispositive of this question. In McSherry, the parties were divorced a vinculo matrimonii by the Circuit Court for Frederick County, in equity, on May 7, 1907. In the same decree, the lower court awarded custody of the minor children to the plaintiff wife and provided that the defendant husband should pay to the wife 'as alimony and for the maintenance of the said children * * * such sum or sums of money as may be hereafter determined by this Court upon the application of any of the parties in interest.' The parties, prior to the decree, had entered an agreement that the wife should be paid such sums of money by the husband for alimony and maintenance of the children 'as may be hereafter determined by your Honorable Court, and that the amouunt of said alimony and miantenance be reversed by said decree for future determination upon the application of any of the parties in interest.' Thereafter, there were no further proceedings in the case until on June 10, 1909, the plaintiff wife filed a petition reciting that her husband was employed in Chicago, illinois at a yearly salary of about $3,000, had not contributed to the support of the wife or maintenance of the children since October, 1906, and praying that the Circuit Court proceed to determine, in accordance with its previous decree, the amount of alimony and maintenance for the children. The Circuit Court on June 10, 1909, passed an order for the payment by the husband of $100 a month for alimony and maintenance of the children, unless cause to the contrary be shown by June 21, 1909, and provided that a copy of the petition and order 'be...