Maryland Divorce Mental Cruelty Lawyers Proceedings Grounds Extreme Attorneys

COLBY v. COLBY

COLBY v. COLBY

Court of Appeals of Maryland

May 20, 1958

Benjamin and Sarah Colby were married in Chicago in 1927, had three children, and lived together in Chevy Chase for over four years prior to March 4, 1955. On the latter date, the wife, without prior notice to her husband, took their fifteen year old daughter and went to the home of the wife's mother in Glencoe, Illinois, and immediately thereafter, went to Las Vegas, Nevada. Exactly six weeks after her arrival, she filed suit fora divorce in Nevada on the ground of extreme mental cruelty. She made plans to return to Washington after the divorce proceedings by making a reservation at a Washington hotel. On June 9, the husband was served in Washington with Nevada process, and twenty-one days later, the Nevada court granted a decree of divorce.

The husband made no appearance and the divorce was granted. The husband later filed an action for a divorce a mensa et thoro in Maryland. The Maryland trial court declared the Nevada divorce null and void and granted the husband's petition for a divorce. Appellant wife sought review of a decision by the Circuit Court for Montgomery County Maryland.

Whether the husband is estopped from collaterally attacking the decree of the Nevada court?

The Court rejected the wife's claim that the husband was barred by the doctrine of res judicata from questioning the Nevada court's jurisdiction. The court found that the wife was never a bona fide resident of Nevada and, more importantly, that the husband had never made an appearance in the Nevada action. The factual point of view, the husband was not in Nevada when his wife filed suit and therefore did not have the "opportunity" referred to by thewife to defend the action on the jurisdictional question. Of course, he could have remained in Nevada to contest the suit but there is no evidence that he definitely knew when the wife would file suit. Besides he was under no legal compulsion to remain. Second, it could be argued that the husband had the opportunity to employ a Nevada attorney to contest the divorce. Such an opportunity, however, was not sufficient to bar the husband from subsequently attacking the decree collaterally in this State. The court cited several cases in which one party was held to have been barred from contesting an out-of-state divorce because that party had either been served in the divorce-granting state or had made an appearance to contest jurisdiction. In this case, the court found that the husband was not served in Nevada and made no appearance there. Thus, the husband was entitled to relitigate the issue of jurisdiction.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

Maryland Divorce Mental Cruelty Lawyers Proceedings Grounds Extreme Attorneys

By: Atchuthan Sriskandarajah

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