Urquhart v. Urquhart, 2772

• Decision Date: 25 April 1952
• Docket Number: No. 2772,4878.,2772
• Citation: 104 F. Supp. 929
• Parties: URQUHART v. URQUHART. WEIDLICH v. URQUHART.
• Court: U.S. District Court — District of Maryland

104 F. Supp. 929

URQUHART v. URQUHART.

WEIDLICH v. URQUHART.

Nos. 2772, 4878.

United States District Court D. Maryland, Civil Division.

April 25, 1952.

Cornelius P. Mundy, and Marshall, Carey, Doub & Mundy, Baltimore, Md., for Vivien Urquhart.

Cornelius P. Mundy, Baltimore, Md., for Clifton Weidlich.

John H. Skeen, Jr., Baltimore, Md., for John Urquhart.

CHESNUT, District Judge.

These two closely related, if not companion, cases have been pending an unusually long time in this court. The first case, No. 2772, was originally filed on October 2, 1945. After numerous interlocutory proceedings therein, and as a consequence of protracted litigation in the courts of the State of New York, a supplemental and amended complaint was filed by the plaintiff on October 12, 1950.

The second case, No. 4878, was originally filed in this court February 15, 1950, and after various intermediate proceedings an amended complaint was filed June 15, 1950. The defendant is the same in both cases. In each case both the plaintiff and the defendant have now recently filed motions for summary judgment based on the pleadings and attached affidavits and exhibits. In each motion for summary judgment the parties respectively rely principally if not wholly upon the Full Faith and Credit clause of the Constitution of the United States which, in Article IV, section 1, reads:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

The defendant in each case relies upon a judicial record of the State of Arkansas rendered July 12, 1932, while the plaintiff in each case relies upon a judicial record of the State of New York rendered and made final by affirmance on appeal on May 2, 1950. See 196 Misc. 664, 92 N. Y.S.2d 484, 277 App.Div. 752, 97 N.Y.S. 2d 200. An exemplified copy of the Arkansas judicial record has been filed by the defendant. It includes a decree for absolute divorce between the plaintiff, Vivien C. Urquhart (the plaintiff in No. 2772) and John A. Urquhart, the defendant in both cases in this court. The defendant contends that the decision of the Supreme Court of the United States in Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, is a conclusive authority in his favor in both cases pending here, with the exception of that part of the complaint of Vivien C. Urquhart which is based on accrued and unpaid alimony due under the Arkansas divorce decree. The plaintiffs in both cases dispute the defendant's contention.

The defendant's motion for a summary judgment is filed in accordance with rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., and as provided for in subsection (d) thereof, prays as an alternative that the court, at the hearing of the motion, by examining the pleadings and evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted; and thereupon make an order specifying the facts that appear without substantial controversy and directing such further proceedings as are just. The rule further provides in this connection that "upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."

I have heard counsel at length upon these motions, and have examined the lengthy papers that have been submitted in connection therewith. They consist principally of the amended complaints and answers thereto and the motions for summary judgment and the affidavits and exhibits filed therewith. From them I find that the following material facts exist without controversy.

1. On June 25, 1922 Vivien C. Urquhart and John A. Urquhart were duly married in the State of New York and had their domicile there until on or about December 18, 1931. Shortly before the latter date they entered into an agreement of separation making a division of personal properties or assets, and the husband agreeing to pay the wife $10 weekly as alimony after December 31, 1931. About December 18, 1931 the wife went to Hot Springs, Arkansas, for the purpose of obtaining a divorce. On February 29, 1932 she filed a suit for absolute divorce from John A. Urquhart. He personally appeared as the defendant in the case after receiving due notice thereof while in New York, and waived all defensive proceedings therein. It appears from the record in the case that depositions of witnesses were taken and filed and the court on July 12, 1932, rendered its decree of absolute divorce between the parties and awarded the plaintiff alimony as provided for in the agreement mentioned. The decree recites that the court found that the plaintiff was a bona fide resident of the State of Arkansas. There was no appeal taken from this final decree and apparently no other later or further proceedings have ever been instituted in the case in Arkansas.

2. In March 1932 the plaintiff Vivien C. Urquhart returned to New York and has resided there continuously since that time. About July 25, 1932 the defendant John A. Urquhart remarried in the State of Connecticut but continued to reside in New York until 1942 when he, his second wife and their two children moved to Maryland where they have since resided.

3. On October 23, 1935 in New York, a son was born to Vivien C. Urquhart and named Peter Urquhart. Vivien Urquhart contends that the defendant John A. Urquhart is the father of this child. The defendant John A. Urquhart denies this. There was no remarriage by Vivien Urquhart after the Arkansas divorce.

In 1944 Teresa Wilson, as guardian ad litem for Peter Urquhart, filed a petition in the Supreme Court of New York (a trial court) for a declaratory judgment to the effect that Peter Urquhart was the legitimate son of Vivien and John Urquhart born in lawful wedlock. Vivien and John Urquhart were named as parties defendant in the case. The second wife of John Urquhart and their two children were not made parties. At that time John Urquhart was a bona fide resident of Maryland and was summoned only by service made on him in the State of Maryland. He appeared only specially in the case by attorney but had the opportunity to and did contest the merits of the case with respect to the paternity of Peter Urquhart. As a witness in that case Vivien Urquhart testified, with respect to the Arkansas divorce, to the effect that she had never intended in good faith to become a resident of Arkansas and had gone there only for the purpose of procuring the divorce and had in fact returned to New York a few days before the expiration of a ninety day stay there (the Arkansas law requiring a residence of ninety days for jurisdictional purposes) by reason of the sudden critical illness of her mother in New York. After protracted litigation in that proceeding including several appeals by the respective parties, the trial court finally determined (1) that the Arkansas divorce was void because the plaintiff therein had never intended to become a bona fide resident of Arkansas but had gone there only for the purpose of obtaining a divorce; (2) that Peter Urquhart was the son of Vivien and John Urquhart born during lawful wedlock but that (3) the defendant John Urquhart having throughout the litigation appeared only specially was not personally bound by the declaratory decree in rem. 196 Misc. 664, 92 N.Y.S.2d 484. This judgment was affirmed without opinion by the Appellate Division of the Supreme Court of New York on May 2, 1950, 277 App.Div. 752, 97 N.Y.S.2d 200, and became final as no appeal was taken therefrom by any party. In reaching this final decision the New York court allowed the validity of the Arkansas divorce to be successfully collaterally attacked by Peter Urquhart, a child born to Vivien three years after the divorce decree.

The amended complaints in the two cases here were filed subsequent to this final decision of the New York court. In the first case the amended complaint of Vivien Urquhart asserts two claims against the defendant. The basis for one claim is that the defendant abandoned and deserted their legitimate son Peter in 1942 and has failed to contribute to his support since then, in consequence of which the plaintiff as mother has been required to provide necessaries for his maintenance and support, in the amount of over $29,000. Her second claim consists of accrued and unpaid alimony in the amount of over $7,000 arising under the separation agreement made in 1931 and confirmed by and included in the Arkansas divorce decree of 1932.

In the second case in this court the complaint is filed by Clifton Weidlich, a New York lawyer, who makes claim on the defendant as the father of Peter Urquhart for professional services rendered as necessaries to Peter Urquhart in the protracted litigation resulting in the New York declaratory judgment establishing the legitimacy of Peter as the son of John Urquhart. The amount claimed for the services so rendered is $28,500 plus expenses disbursed in the litigation in the amount of $854.78.

In his answers to both cases the defendant has denied liability but on the hearing of the motions recently argued in this court counsel for the defendant, as to the first case has stated that, in order to avoid the delay and expense of further litigation the defendant is willing to admit liability for unpaid alimony, the amount thereof to be determined on evidence to be offered by the parties, provided the court reaches the conclusion that the demands of the plaintiffs in both cases for necessaries furnished to Peter Urquhart cannot be recovered in this case by reason of the illegitimate status of Peter Urquhart necessarily resulting from the Arkansas decree and the latter's birth three years thereafter.

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