Wilburn v. Wilburn, 3252.

• Decision Date: 22 July 1963
• Docket Number: No. 3252.,3252.
• Citation: 192 A.2d 797
• Parties: Yetta R. WILBURN, Appellant, v. Arthur Julius WILBURN, Appellee.
• Court: D.C. Court of Appeals

Page 797

192 A.2d 797

Yetta R. WILBURN, Appellant, v. Arthur Julius WILBURN, Appellee.

No. 3252.

District of Columbia Court of Appeals.

Argued June 17, 1963.

Decided July 22, 1963.

Rehearing Denied September 5, 1963.

Belford V. Lawson, Jr., Arnold A. Stahl and W. Dean Wagner, Washington, D. C., for appellant.

James S. Brocard and Lowry N. Coe, Washington, D. C., for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

QUINN, Associate Judge.

This was a suit by the wife for maintenance and for custody of a child of the parties. The complaint was filed on October 27, 1960, and the answer, coupled with a motion to dismiss on the ground of forum non conveniens, was filed on February 6, 1961. The motion to dismiss was denied on June 9, 1961, and on July 7, 1961, when the husband failed to appear for pretrial following several continuances, the trial court ordered the answer stricken and the case to proceed as in default. In August 1961 the wife and several witnesses who appeared in her behalf gave testimony at a hearing which lasted two days. The husband was represented by counsel who cross-examined extensively. At the close of the hearing, the trial judge took the case under advisement. Sixteen months later, in December 1962, he filed an opinion and order dismissing the complaint on the ground of forum non conveniens.¹ Briefly, the facts are as follows.

The wife and husband were married in 1946 and thereafter became domiciliaries of the District of Columbia where, in 1949, their son was born. In 1956 the family purchased a house and moved to Silver Spring, Maryland. Although both the wife and husband were employed in the District of Columbia — the wife as a school teacher and the husband by the Auditor General's Office — there is substantial evidence that after 1956 the parties became domiciliaries of the State of Maryland. In the summer of 1960 marital difficulties led to their separation. At the same time, the husband by force and over the protests of the wife removed the child from their joint custody. While the child's residence immediately following his forced removal is uncertain, sometime in the fall of 1960 the husband secreted him with his paternal grandmother in North Carolina. Thereafter, it appears the husband returned to his place of employment in the District of Columbia. His exact whereabouts, however, were unknown. The wife was unable to find him at his usual place of employment and his mail and checks bore only a post office box in Langley Park, Maryland.

Constant efforts by the wife to communicate with the child proved futile. She has neither seen nor heard from him since 1960. Upon the advice of her family, she sought redress in the courts. It is apparent from her complaint that she instituted these actions in the District of Columbia because she was unable to effect service of process on her husband in Maryland, and because she hoped to obtain service in the District of Columbia, his place of employment. Her efforts finally met with success in January 1961. Nevertheless, the husband claims that from September 1960 until the present time he has been a resident and citizen of the State of North Carolina.

In dismissing sua sponte on the ground of forum non conveniens, the trial court found that the courts of Maryland or North Carolina were more appropriate forums to determine the issues of custody and maintenance than the courts of the District of Columbia.² We reject this view because we see it as an erroneous application of law to the established facts,³ and because we feel the court abused its discretion in the employment of a traditionally equitable doctrine.

I

In Walsh v. Cresent Hill Co., D. C.Mun.App., 134 A.2d 653 (1957), we had occasion to discuss at length the doctrine of forum non conveniens. In that case we reviewed the comprehensive opinion of Mr. Justice Jackson in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) which set forth the standards to be considered in applying forum non conveniens. In his discussion Mr. Justice Jackson said: "In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them." Id., 330 U.S. at 506-507, 67 S.Ct. at 842. Generally, the defendant has the burden of establishing a strong case for dismissal, and "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id., 330 U.S. at 508, 67 S.Ct. at 843. The rule is not that jurisdiction should be denied unless such denial would work an injustice, but rather that jurisdiction should be taken unless to do so would work an injustice.⁴

In this jurisdiction our highest court has had occasion to consider the applicability of the doctrine with regard to matrimonial disputes. In Curley v. Curley, 74 App.D.C. 163, 165, 120 F.2d 730, 732 (1941), cert. denied, 314 U.S. 614, 62 S.Ct. 114, 86 L.Ed. 494 (1941), the court said: "* * * the public policy of the District of Columbia does not require its courts to take jurisdiction of a matrimonial dispute between two persons who are neither domiciled in the District nor even residents thereof; especially where there is no showing that the welfare of children, rights of property or other public interest, in the District are in any way affected." In Melvin v. Melvin, 76 U.S.App.D.C. 56, 57, 129 F.2d 39, 40 (1942), the court restated the Curley rule as follows: "Our view was, and is, that the District Court's undoubted jurisdiction of maintenance suits between nonresidents domiciled elsewhere should not be exercised unless unusual circumstances justify trial here." The court then found that such unusual circumstances were present. Associate Justice Rutledge in his concurring opinion explained these circumstances as follows:

"Within the period of their matrimonial troubles appellant has resided at various times in Virginia, the District of Columbia and Maryland, and has claimed both residence and legal domicil in Arkansas. Since that claim has been rejected, the location of his domicil in any of the jurisdictions where he has resided might be very difficult for appellee to establish in another suit brought in any of them. She therefore has no convenient forum for securing the service of process on a domiciliary basis. Without that she might be unable to secure personal service in Virginia, her own and the last matrimonial domicil, and other jurisdictions might apply the doctrine of forum non conveniens applied in the Curley case, even though service were secured by catching appellant on the run. To decline jurisdiction here and commit appellee to suit elsewhere might therefore be to put her upon a merry-go-round of litigation in other jurisdictions, with no certainty that any of them could or would exercise jurisdiction in her be-half." (Footnotes omitted.) Id., 76 U.S.App.D.C. at 59, 129 F.2d at 42.

The case at bar is strikingly similar to the situation confronting the appellee in Melvin.⁵ The continued mobility and elusiveness of the husband makes it anything but clear that he will be amenable to process in the courts of Maryland or North Carolina. Consequently, to dismiss on the ground of forum non conveniens is to disregard the admonition of Mr. Justice Jackson that the doctrine presupposes at least two forums in which the defendant is amenable to process.⁶ At the very least, a proper application of the doctrine in this case would have called for either a conditional dismissal with a stipulation that the husband accept service of process in Maryland or a stay of the action pending institution of suit and service of process in Maryland.⁷ Rather, the unconditional dismissal by the trial court sets the wife upon a sea of doubt with no remedy or hope that her claim for custody and maintenance will ever be heard on the merits. That the court felt its decree would be ineffective is belied by its own admission that it "could order compliance with any order it issued." By stating it would "place no undue hardship" upon the wife to seek relief in the courts of Maryland or North Carolina the trial court clearly misconstrued the nature of the doctrine.⁸ We hold, therefore, that the dismissal of the wife's complaint was error because the standards we have discussed were improperly applied to the established facts.

II

It is well recognized that the objection that an action has been instituted in a forum non conveniens may be made by the court sua sponte.⁹ It has also been noted that the objection may be made at any time. Nevertheless, since the basis of the objection is not an absolute lack of jurisdiction over the subject matter, but rather the impropriety of the court's exercising jurisdiction, the defense that want of jurisdiction...