Zouck v. Zouck

• Decision Date: 23 April 1954
• Docket Number: No. 90,90
• Parties: ZOUCK et al. v. ZOUCK.
• Court: Maryland Court of Appeals

Page 285

204 Md. 285

104 A.2d 573

ZOUCK et al. v. ZOUCK.

No. 90.

Court of Appeals of Maryland.

April 23, 1954.

A. K. Nelson Sterling, Baltimore (John Wesley Smith, Baltimore, on the brief), for Zouck.

W. Thomas Kemp, Jr., Baltimore (Piper & Marbury and E. Clinton Bamberger, Jr., Baltimore, on the brief), for Safe Deposit & Trust Co.

Thomas J. Kenney and Avrum K. Rifman, Baltimore (Walter R. Haile, Towson, and Kenney & Kaiser, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appeal in this case is from a decree ordering Henry Charles Zouck, one of the appellants, to perform the obligation he had assumed in a separation agreement executed several years before by him and his wife, Betty Long Zouck, the appellee. A consideration of the agreement was the dismissal of a bill for divorce by the wife and a cross-bill by the husband, which had been filed in Baltimore, the matrimonial domicile. The agreement provided that the custody of the daughter, then seven years old, would continue in the mother, that the father was to pay $25 a week for the support of the child and to assign certain insurance policies to the daughter and execute a will, under which there would pass to her his remainder interests in three trust estates. One of the trust estates was created by deed from the husband's father to the Safe Deposit and Trust Company, Trustee, the other appellant. The husband has not paid a cent since the execution of the agreement in 1949 and has never complied with any other of its terms, having thrown his executed copy into a trash can as he left the lawyer's office where it was signed.

The decree of the lower court directed the husband to pay up the arrearages in a lump sum and, thereafter, to pay $25 a week, as well as to assign the policies and to execute the will, as agreed. It awarded custody of the daughter to the mother.

The trust held by the Safe Deposit and Trust Company, as Trustee, is a spendthrift trust. Nevertheless, the court, in order to enforce compliance with its decree, held that jurisdiction of the court attached to the interest of the husband in the trust, both as to principal and income--in other words, that the spendthrift trust could be invaded for the satisfaction of the court's decree.

Both the husband and the wife are non-residents of Maryland. She lives in North Carolina, where she has supported herself and her daughter since the separation. He, an engineer by profession, has worked in various places in this country and abroad. In December, 1951, knowing that he was to be in Maryland, Mrs. Zouck filed a bill of complaint in the Circuit Court for Baltimore County against her husband and the Safe Deposit and Trust Company, Trustee under the deed of trust from the husband's father. In the bill, it was alleged that although the husband was a non-resident, his 'legal residence' was Glyndon, Baltimore County, where his mother resided and where it was customary to send his mail. After the bill was filed, it was learned that Zouck was at the home of a sister in Baltimore City and he was served there with process by a deputy sheriff of Baltimore City. He filed a petition for the sole purpose of challenging the jurisdiction of the court. After a demurrer to the petition was sustained, he sought leave of court to amend the petition to substitute the word 'venue' for the word 'jurisdiction' wherever the latter appeared in the original petition. The request was denied on objection of the appellee. A demurrer to the bill was over-ruled and an answer was filed, which neither admitted nor denied the allegations of the bill. The answer of the Safe Deposit and Trust Company was to set out the provisions of the deed of trust, which made it a spendthrift trust under the law of Maryland.

Zouck argues that he was not subject to suit in Baltimore County--that if he was suable in Maryland, it was in Baltimore City, where he was when process was served. He relies on Article 75, Section 158 of the Code 1951, which provides that no person shall be sued out of the county in which he resides until a non est has been returned in such county. The privilege granted by Section 158 is applicable in equity as well as in law. Allender v. Ghingher, 170 Md. 156, 166, 183 A. 610; Evans v. Zouck, 172 Md. 12, 16, 190 A. 523. It has been stated that its purpose is to afford residents of the State an opportunity to avoid the defense of actions in counties distant from their homes or places of employment. Woodcock v. Woodcock, 169 Md. 40, 47, 179 A. 826. Since Zouck himself sets up and relies on his non-residence, he is in no position to claim the privilege granted by the statutes to residents only. Alcarese v. Stinger, 197 Md. 236, 78 A.2d 651. It is clear that a plaintiff can bring a transitory action against a non-resident in any county he selects as long as he can obtain service on the defendant. Eck v. State Tax Comm., Md., 103 A.2d 850. See Harris v. Balk, 198 U.S. 215, 25 S.Ct. 625, 49 L.Ed. 1023. A bill for specific performance of a separation agreement is in personam and transitory in nature. Hagen v. Viney, 124 Fla. 747, 169 So. 391, and Scholla v. Scholla, 92 U.S.App.D.C. 9, 210 F.2d 211. We think, therefore, that Zouck was properly sued in Baltimore County, where it was thought at the time suit was filed that service could be obtained on him. Article 16, Section 221 of the Code 1951 provides that where the court has jurisdiction, but there is doubt as to the residence of the party against whom process is necessary: '* * * several writs may be issued, as of course, to as many counties within the State, * * *' as may be directed; Article 16, Section 230 of the Code 1951 provides: 'A court of equity may issue process of any sort * * * to any part of the State.' Article 87, Sections 17 and 19 of the Code 1951 provides that the sheriff of any county may serve process in another county and return the same to the court issuing the process. The fact that he was sued in Baltimore County and served in Baltimore City is without significance.

We pass then to the consideration of the merits. In our opinion, the court had power to enforce specifically the agreement between husband and wife and did not abuse its discretion under the established rules when it did so, either as to the arrearages or as to the weekly payments to be made in the future. Traditionally, equity has had, and exercised, jurisdiction as to separation agreements between husbands and wives and, in appropriate cases, has specifically enforced payment of maintenance, including both that due and unpaid and that to be paid in the future. In Guth v. Guth, 3 Bro.C.C. 614, 29 Eng.Rep. 729, decided in 1792, the husband and wife had executed a separation agreement, whereby he had promised to pay her one hundred pounds per annum: '* * * for the full maintenance of herself and one of her children, named Henry, * * *' He fell behind in his payments, pleading inability to pay. The Court held that the agreement could be specifically enforced, saying: '* * * therefore, let it be referred to the Master, to take an account of what is due for the arrears of the annuity from the date of the receipt, and let the same be paid, together with the growing payments, to her, or such person as she shall appoint, * * *' The reporter noted that the Master of the Rolls declared that: '* * * 'the agreement between the parties ought to be specifically performed and carried into execution:' * * *' This decision was the subject of some criticism in English decisions thereafter which considered the validity of separation agreements. Often these turned on the question of whether the agreement was to separate and so void as against public policy or whether equity would interfere with the ecclesiastical courts and their power to order restitution of conjugal rights. Generally, equity would not enforce an agreement so as to require separation, but would require the husband to perform the part of it which related to the payment of the stipulated separate maintenance. The matter was laid to rest by a decision of the House of Lords in the case of Wilson v. Wilson, decided in 1848, 1 H.C.L. 538, 9 Eng.Rep. 870. There the decree appealed from directed specific performance of the articles of separation, and the argument was that equity lacked jurisdiction for the performance of such articles. The Lord Chancellor held that illegality as to the part of a separation agreement calling for separation would not make void arrangements for property and maintenance. He advised the affirmance of the whole of the decree appealed from and it was so ordered. A number of the earlier cases were cited in the opinion of the Lord Chancellor. In 1870, the Supreme Court, in Walker v. Walker's Ex'r, 9 Wall. 743, 19 L.Ed. 814, approved and enforced the provisions of the articles of separation, whereby the husband established a trust fund for the wife, from which she was to receive annual maintenance.

The courts of a number of states have decreed specific performance of agreements for maintenance and support of a wife or a child, or both, directing payment of the amount in arrears and the future payments. In Burke v. Burke, Del.Ch., 86 A.2d 51, 54, the court in enforcing an agreement for the support of a wife and minor child, said: 'Courts favor the enforcement of such an agreement as a matter of public policy. From an early day courts of equity have assumed jurisdiction to enforce separation agreements between husband and wife and have enforced payment of allowances to be paid by the husband to the wife as stipulated in such agreement.' In Whitten v. Bird, 23 Del.Ch. 36, 2 A.2d 83, the court overruled a demurrer to a bill which sought specific performance of an agreement for the maintenance of the children of the couple, both as to arrearages and future payments. In Colburn v. Colburn, 279 Pa. 249, 123 A. 775, the lower court...