Zouck v. Zouck
| Decision Date | 19 May 1954 |
| Docket Number | No. 90,90 |
| Parties | Henry Charles ZOUCK and Safe Deposit & Trust Co. v. Betty Long ZOUCK. |
| Court | Maryland Court of Appeals |
Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
On the point of venue, I agree that a suit for specific performance of a contract is a transitory action that will lie wherever the defendant can be reached with process, and that no valid objection to a decree for specific performance can be raised on the ground that the contract is one for support. I also agree that the decree cannot properly include an award of custody of a non-resident child having the domicile of its non-resident mother and not present in the State, the father being also a non-resident. Whether the decree could properly require the execution of a will, in its nature ambulatory, is open to doubt. See Pomeroy, Specific Performance (3d ed.) p. 492; 5 Williston, Contracts (Rev. ed.) § 1421; Lorenzo v. Ottaviano, 167 Md. 138, 173 A. 17, 179 A. 536. A required change in the beneficiary of a life insurance policy, where the policy permits a subsequent change at the option of the insured, would seem to be open to the same objection. The opinion treats both these questions as not seriously
pressed. My main point of disagreement is with that part of the decision which holds that funds in a spendthrift trust can be reached to satisfy the obligations, past and future, arising out of a contract for payments in lieu of support.
The bill of complaint relies solely on the contract, and seeks to fasten a lien upon the trust estate, of which the defendant is a beneficiary, to satisfy his contractual obligation. There is no claim for support as such under the pleadings. In the absence of contract, it may be doubted whether a suit in equity for support, unconnected with divorce or custody, would lie even against a resident defendant. Apparently no such redress was available at common law, although at least a moral duty was recognized. Borchert v. Borchert, 185 Md. 586, 590, 45 A.2d 463, 162 A.L.R. 1078; Burns v. Bines, 189 Md. 157, 162, 55 A.2d 487, 57 A.2d 188; Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259 (Miss.); note 33 Harv.L.R. 729. The matter has been dealt with by statute both in England and the United States. 2 Bishop, Marriage, Divorce and Separation, § 1155. None of the Maryland statutes touch the instant case. See Code 1951, Art. 16, §§ 34 and 75. See also Code (1951), Art. 89C, Art. 27, § 96, and Art. 12, §§ 8, 9, 12. Art. 72A, § 1, declares that a father and mother are jointly and severally charged with support, but does not implement the duty. Nor do any of these statutes indicate a policy of enforcing a duty of support when all of the parties are non-residents. Cf. Restatement, Conflict of Laws, secs. 457 and 458, comment (a); Melvin v. Melvin, 76 U.S.App.D.C. 56, 129 F.2d 39; Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870.
In State v. James, Md., 100 A.2d 12, 15, it was held that a resident defendant was properly charged in Maryland with the crime of non-support, although the child was in another State, but it was stated that jurisdiction under Code 1951, Art. 27, § 96(b), was predicated upon the fact that the father was domiciled in Maryland. The Restatement, Conflict of Laws, § 457, was cited to indicate that a State has legislative jurisdiction to impose a penalty on that basis. The opinion in the instant case
relies upon the Uniform Support of Dependents Act, Code 1951, Art. 89C. Acts of 1951, Ch. 301. But that Act also seems to be predicated upon the Maryland residence of the obligor, where the obligee is not a resident of or present in the State, for it declares, section 7, that the 'Duties of support enforceable under this Article are those imposed or imposable under the laws of Maryland upon the alleged obligor during the period for which support is sought.' (Italics supplied.) It may also be observed that the present proceeding is not within the terms of the Statute, for there is no petition from an initiating State, as the Act requires. The opinion also relies upon George v. George, 23 A.2d 599, 20 N.J.Misc. 41. That case was based on a New Jersey statute, and dealt with separate maintenance of a wife. It was held that although both parties were non-residents, property of the husband in the State could be reached. Other courts have held to the contrary. See note 74 A.L.R. 1242. So have we. Keerl v. Keerl, 34 Md. 21. There is no comparable statute in Maryland.
I find nothing in Article III, § 38, of the Maryland Constitution to enlarge the court's jurisdiction to award support against a non-resident. That amendment was adopted to confer on a court of competent jurisdiction the same power to punish for contempt for failure to support, as traditionally exercised for failure to pay alimony. Cf. Knabe v. Knabe, 176 Md. 606, 6 A.2d 366, 124 A.L.R. 1317. It did so by declaring that a decree for support, or approving an agreement for support, should not constitute a debt within the prohibition against imprisonment for debt. The additional remedy for disobedience of the order has no bearing whatever upon jurisdiction to pass the order in the first instance. It is said that a decree approving an agreement for support is equated to a decree for support in the absence of agreement, and that the agreement in the instant case has now been approved by a court. But the amendment seems to contemplate either a decree that presently and prospectively fixes an amount found necessary for support, or one that
adopts an amount presently agreed to by the parties, although the court is not bound by such an agreement. Here, there was no finding as to the present needs of the child or the relative resources of the parties, nor could the court find that the parties were in agreement. The decree was simply for specific performance of an agreement made years ago and immediately repudiated, and the award was by way of damages for past breaches and sequestration to insure future performance. There was no claim for reimbursement of expenditures for necessaries by one who had a joint duty to support, nor would such a claim be maintainable in...
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