Miller v. MillerMiller v. Miller
delivered the opinion of the Court.
These appeals, concerning the claimed right of a father residing in Maryland to have a son and daughter domiciled in Florida visit and communicate with him, stem from the failure of the chancellor (Shearin, J.) to give full faith and credit to a Florida decree awarding custody to the mother, retaining jurisdiction over the children and denying the father all present visitation privileges.
Stated chronologically, the events leading to the passage of the orders appealed from are:
The father (James R. Miller) and the mother (Betty G. Miller) were married on February 14, 1954, and both of them resided in Maryland until June 16, 1965.
The wife moved with the children to Florida and, on June 21, 1965, filed a sworn manifestation of domicile with the clerk of the Circuit Court of Volusia County declaring that she resided and maintained a place of abode in DeLand. She and the children have since continuously resided there.
The husband, on September 17, 1965, claiming desertion by tacking the periods of separation, filed a bill in Montgomery County for an absolute divorce and custody of the children. Constructive notice to the wife was given by publication as in non-resident cases.
The wife, on October 27, 1965, alleging that the children had resided with her in Florida since June 17, 1965 and charging the husband with excessive drinking, cruelty of treatment and abuse of marital privileges, instituted a suit in Volusia County for custody of the children. Thereupon the Florida court awarded temporary custody to the mother and enjoined the father from removing the children from the state. A certified copy of the order of court was personally served on the husband in Maryland and constructive notice of the suit was given by mail and publication.
On November 22, 1965, the wife filed a motion (along with copies of the Florida domicile manifesto and custody order) to dismiss the Maryland proceeding for lack of jurisdiction over her and the children for the reason that she and they were bona fide residents of Florida. When the chancellor denied the motion to dismiss and the petition for a rehearing thereof, the wife appealed to this Court. 1 Notwithstanding the appeal, the chancellor entered a decree pro confesso against the wife, but this, was stricken by consent and the wife was granted fifteen days, from May 18,1966 to file a responsive pleading.
In the intervening six months period (from November 1965 to May 1966) the Florida court heard the custody proceeding,
Promptly after the Florida decree became final, the wife informed this Court that the questions raised in the first appeal had become moot and requested that it be dismissed. It was so ordered on May 20, 1966.
On June 2, 1966, the wife, answering the husband’s suit in Maryland, admitted the marriage and birth of the children, denied the desertion, alleged the adulterous conduct of the husband and informed the court of the Florida decrees awarding her custody of the children and granting her an absolute divorce from her husband.
On June 7, 1966, the husband filed a petition for visitation rights pendente lite. The wife answered the petition and moved for summary judgment on the ground that the Florida decree, which had fully and finally adjudicated the matters set forth in the bill of complaint, was entitled to full faith and credit. Argument on the motion was heard on July 20, 1966.
The chancellor filed an opinion and order on September 28, 1966. Although apparently recognizing that the divorce decree was entitled to full faith and credit, he was of the opinion, since he had
“in personam
jurisdiction” over the mother, that he was not required to give full faith and credit to the custody decree because other than
mere presence
the evidence was insufficient to enable him to make a determination as to whether or not the mother had acquired a bona fide permanent domicile in Florida. On the premise that the last certain domicile of the mother and children was Maryland and that a change of domicile could not be presumed by absence from one state and presence in another, the chancellor held that the children were still domiciled in Maryland and that the father had a right to visit, receive visits and communicate with them. He concluded the opinion by saying that since the mother rested her case wholly on his lack of jurisdiction, the matter of custody must be decided against her. The order, in addition to specifying periodic visits
The mother entered an appeal [No. 485/66] from the order allowing the father visitation rights and when the chancellor, instead of granting the motion of the mother for a stay of the visitation order pending the appeal, found her in contempt (in absentia) for not affording the father the opportunity to communicate with the children, the mother entered another appeal [No. 80/67] from the contempt order. The father, on the ground that the order allowing visitation rights was a pendente lite order and not a final one moved to dismiss the appeal.
The principal contention on appeal is that because the lower court was required to give full faith and credit to the Florida custody decree, it had no jurisdiction to enter an order affecting the children or adjudging her in contempt.
The motion to dismiss will be denied. We think the visitation order was appealable for, while it may have the appearance of an interlocutory order, it is final in that it modified the Florida custody decree. Nor did the fact that the mother had been adjudged in contempt bar her from taking an appeal and litigating her substantial rights in connection with which the contempt was committed.
Rethorst v. Rethorst,
As to the merits, the conclusion of the lower court that it had jurisdiction over the children because it had jurisdiction over the parents was erroneous and must be reversed. Rather, since the children were neither present nor domiciled in Maryland, it is clear that the court was without jurisdiction to either pass an order concerning the right of the father to visit and communicate with the children or to find the mother in contempt for failing to comply therewith.
In
Zouck v. Zouck,
“The term jurisdiction imports not only power over the parties to the action but the right to adjudicate as to the subject matter in a given case. In matters of custody, jurisdiction of the pers'on who seeks custody is not enough. There must be jurisdiction over the one of whom custody is sought for the court to have jurisdiction of the subject matter.” [Italics ours.]
This is so because as was said in Nelson on Divorce, 2nd ed., § 15.32, at p, 287—
“A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res, or the subject matter, being the child’s status or his legal relationship to another. If the court does not have jurisdiction of the children it does not have jurisdiction of the subject matter to determine the right to custody as between the parties even though it does have jurisdiction of the parties, who are the parents of the children.” [Italics ours.]
Also see Nelson, op.cit., § 33.62; Beale, Conflict of Daws, Vol. 2, § 144.13.
The law, therefore, is settled that absent jurisdiction over children, a court has neither the power nor a right to judicially determine questions concerning custody and visitation rights. And, for the same reason in this instance, the rule would apply to a contempt proceeding arising out of failure to comply with an order in either of the other respects.
Whether or not the Maryland court was required to give full faith and credit to the Florida custody decree necessarily depends on whether the children were domiciled in that state. And this fact, in turn, depends on whether the mother was domiciled there at the time the order granting the father visitation and communication rights was passed.
That the children and mother were not domiciled in Maryland is certainly not in doubt. So far as the children are concerned, the record indicates that they were domiciled in Florida several months before the Maryland divorce action was instituted; that they remained in Florida throughout these proceedings ; and that they are still there.
The domicile of children, ordinarily, is the same as that of both or one of the parents. In the case of a separation or divorce, the domicile of a child is that of the parent to whom legal custody has been awarded; if custody has not been determined or fixed, it reposes in the parent with whom the child resides; and if it lives with neither of the parents, the child retains the domicile of the father.
Ross v. Pick,
The domicile of a parent, or parents, however, is always determined by his or her place of residence coupled with intention that it be permanent and not temporary. In
Shenton v. Abbott,
While the general rule is that in the absence of a decree of separation or divorce the domicile of a wife is the same as that of the husband,
Whiting v. Shipley,
The father relied on
May v. Anderson,
It should also be noted that this was not a case for the application of the continuing jurisdiction rule, adopted in Berlin v. Berlin, supra, as the lower court undertook to do, for in order to have a continuing jurisdiction the Maryland court, rather than the Florida court, must initially have had jurisdiction over the children.
Applying the law to the facts and circumstances of this case, it is apparent, inasmuch as the mother as well as the children were domiciled in Florida, that the lower court was required to give full faith and credit to the Florida custody decree and that the failure to do so was a violation of Section 1 of Article IV of the Constitution of the United States. See Rethorst v. Rethorst and Naylor v. Naylor both supra; Restatement, op. cit. supra, § 147; Nelson, op. cit. supra, §§ 15.32, 33.62.
While this ruling is conclusive of the status of the children for the present, the father is not precluded, as the Florida decree indicates, from hereafter seeking modification in a Florida ■or another court which may obtain jurisdiction. Taylor v. Taylor, supra.
There is no reason to consider the subsidiary questions raised iby the appeal.
Orders of court as to visitation and communication rights and as to contempt of appellant reversed; appellee to pay the costs.
Notes
. See No. 501, September Term, 1965.