Wamsley v. Wamsley

• Decision Date: 01 September 1993
• Docket Number: No. 78,78
• Parties: Richard Carroll WAMSLEY, Jr. v. Johanna Belinda WAMSLEY. ,
• Court: Maryland Court of Appeals

Page 454

333 Md. 454

635 A.2d 1322

Richard Carroll WAMSLEY, Jr. v. Johanna Belinda WAMSLEY.

No. 78, Sept. Term, 1993.

Court of Appeals of Maryland.

Jan. 26, 1994.

Michael Scott Cohen, argued and on brief (W. Bryan Hall and the Law Offices of W. Bryan Hall, on brief), Cumberland, for appellant.

(No argument on behalf of appellee).

Argued before RODOWSKY, McAULIFFE ^*, CHASANOW, KARWACKI, ROBERT M. BELL, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, Jr., Judges of the Court of Appeals Retired (Specially Assigned).

KARWACKI, Judge.

This case presents the question of whether Maryland courts possess subject matter jurisdiction over a divorce action filed by a member of the armed services who had established a domicile in Maryland prior to entering the service, but who has not lived in Maryland since. Under the factual circumstances of the instant case, we shall answer that question "yes."

I.

Richard Carroll Wamsley, Jr., was raised in Allegany County, Maryland. In 1981, at the age of 17, he joined the United States Navy and left his home of 17 years. He married Johanna Belinda Wamsley on February 23, 1985, in Harrison County, Mississippi, and two children were born of their marriage. After his marriage, Richard was stationed in Norfolk, Virginia for approximately two years, and Sicily, Italy for approximately three years. In 1991, Richard was transferred back to Norfolk, and he lived there with his family until he and Johanna separated on May 26, 1992.

On May 21, 1992, Richard filed a complaint in the Circuit Court for Allegany County seeking a limited divorce from Johanna and custody of their minor children. He alleged as grounds excessively vicious conduct and mental cruelty on the part of Johanna, all of which allegedly occurred while the parties lived in Norfolk. Trial was held on March 9, 1993, at which both parties were represented by counsel. During the trial, the court raised sua sponte the issue of the subject matter jurisdiction of the court. Because the grounds for divorce occurred outside of the state, the trial court applied Maryland Code (1984, 1991 Repl. Vol.), § 7-101(a) of the Family Law Article. That section provides:

"(a) Residence requirement.--If the grounds for the divorce occurred outside of this State, a party may not apply for a divorce unless 1 of the parties has resided in this State for at least 1 year before the application is filed."

Richard asserts that although he has not actually lived in Maryland since he joined the Navy in 1981, he has remained domiciled in Maryland throughout his naval service, including the year prior to the filing of the complaint. On this basis, he argues that he meets the requirements of § 7-101(a) of the Family Law Article. In support of his contention, he points to several uncontested facts. From 1981 through the time the divorce was filed in 1992, Richard listed his mother's address in Allegany County, Maryland as his "home of record" in Navy records. The Navy consequently withheld Maryland state income tax from his pay, and Richard filed Maryland state income tax returns each year during that time. Moreover, he maintained his voting registration in Maryland throughout the time in question. He owned three automobiles during the relevant time period, and although he was not stationed in Maryland, all three vehicles were registered in Maryland. Richard further testified that throughout his naval service, he always intended to retain Allegany County, Maryland as his permanent residence.

The trial judge reviewed all of these facts and then discussed what he believed to be the applicable law:

"The presumption of the law is that where a person actually lives is his domicile, though this is a rebuttable presumption....

"My then view ... is that if the presumption in this State is that where a person personally actually lives is his domicile I cannot construe the State of Maryland as being the domicile for either of these two people.... [C]ertainly I recognize the gentleman has made this his place to vote, hasn't changed that, registered cars, pays taxes here. None of these factors it seems overcomes the basic presumption that your domicile is where you live...."

With this view of the law, the trial court ruled that because the parties had not actually lived in Maryland during the year prior to the filing of the complaint, neither party met the residency requirement of § 7-101(a) of the Family Law Article. It therefore dismissed the divorce action for lack of subject matter jurisdiction.

Richard noted an appeal of the dismissal to the Court of Special Appeals. We granted certiorari prior to consideration of the case by the intermediate appellate court, and we shall reverse the judgment of the trial court, 331 Md. 719, 629 A.2d 720.

II.

Because the alleged grounds for divorce in the case sub judice occurred outside the state, the residency requirement of § 7-101(a) of the Family Law Article must be met before the court may exercise subject matter jurisdiction over the case. See Adams v. Adams, 101 Md. 506, 508, 61 A. 628, 629 (1905) (applying the predecessor statute to § 7-101(a)); Fletcher v. Fletcher, 95 Md.App. 114, 123, 619 A.2d 561, 564 (1993); 24 Am.Jur.2d, Divorce & Separation, § 238, at 336 (1983) ("a court must have jurisdiction of the res, or marital status, in order that it may grant a divorce"). There has been no claim that Johanna resided in Maryland; thus, the subject matter jurisdiction of the court depends on whether Richard has resided in this State within the meaning of § 7-101(a).

We have held consistently that "the words 'reside' or 'resident' in a constitutional provision or statute delineating rights, duties, obligations, privileges, etc. would be construed to mean 'domicile' unless a contrary intent is shown." Bainum v. Kalen, 272 Md. 490, 497, 325 A.2d 392, 396 (1974). This has been true in the contexts of qualification for voting, Howard v. Skinner, 87 Md. 556, 559, 40 A. 379, 380 (1898); eligibility for elected office, Dorf v. Skolnik, 280 Md. 101, 116, 371 A.2d 1094, 1102 (1977); Gallagher v. Board of Supervisors, 219 Md. 192, 208, 148 A.2d 390, 398 (1959); state income taxation, Comptroller v. Haskin, 298 Md. 681, 690, 472 A.2d 70, 75 (1984); Comptroller v. Lenderking, 268 Md. 613, 615, 303 A.2d 402, 403-04 (1973); estate probate, Shenton v. Abbott, 178 Md. 526, 530, 15 A.2d 906, 908 (1940); eligibility to file a claim against the former Unsatisfied Claim and Judgment Fund, Hawks v. Gottschall, 241 Md. 147, 149, 215 A.2d 745, 746 (1966); Maddy v. Jones, 230 Md. 172, 179, 186 A.2d 482, 485 (1962); determination of venue for filing a divorce, Harrison v. Harrison, 117 Md. 607, 612, 84 A. 57, 58 (1912); and application of full faith and credit to out-of-state divorce decrees. Walker v. Walker, 125 Md. 649, 662, 94 A. 346, 352 (1925). We see no reason why our consistent interpretation of the term "resided" should not be equally applicable in the context of § 7-101(a), and in fact, the Court of Special Appeals recently reached that same conclusion. See Fletcher v. Fletcher, supra, 95 Md.App. at 120-24, 619 A.2d at 563-65 (reviewing legislative history of § 7-101(a) and its predecessors and concluding that in the context of that statute, residence means domicile). We must decide, then, whether Richard was domiciled in Maryland for at least one year before the complaint was filed.

III.

The law governing the determination of domicile is well-established and was summarized succinctly by Judge Smith for the Court in Dorf v. Skolnik, supra:

"A person may have several places of abode or dwelling, but he can have only one domicile at a time. Domicile has been defined as the place with which an individual has a settled connection for legal purposes and the place where a person has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning. The controlling factor in determining a person's domicile is his intent. One's domicile, generally, is that place where he intends it to be. The determination of his intent, however, is not dependent upon what he says at a particular time, since his intent may be more satisfactorily shown by what is done than by what is said. Once a domicile is determined or established a person retains his domicile unless the evidence affirmatively shows an abandonment of that domicile. In deciding whether a person has abandoned a previously established domicile and acquired a new one, courts will examine and weigh the factors relating to each place. This Court has never deemed any single circumstance conclusive. However, it has viewed certain factors as more important than others, the two most important being where a person actually lives and where he votes. Where a person lives and votes at the same place such place probably will be determined to be his domicile. Where these factors are not so clear, however, or where there are special circumstances explaining a particular place of abode or place of voting, the Court will look to and weigh a number of other factors in deciding a person's domicile."

280 Md. at 116-17, 371 A.2d at 1102-03 (emphasis added). Such "special circumstances" are frequently presented by members of the armed forces. Because they are often moved from place to place under military orders, determining their domicile for purposes of maintaining legal actions can be a difficult task.

We have not yet considered the precise issue before us, i.e., whether one who established a Maryland domicile prior to entering military service but who has not lived in Maryland may retain that domicile. We have, however, previously encountered an analogous situation, i.e., whether one who established an out-of-state domicile prior to entering military service but who has been stationed in Maryland may claim a Maryland domicile. We have considered this...