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Fisher v. Demarr

Decided: October 19, 1961.

FISHER, ADMINISTRATRIX D. B. N. ET AL.
v.
DEMARR



Appeal from the Circuit Court for Prince George's County; Powers and Bowie, JJ.

Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

In 1947 Alexander Middleton married Mary Richardson, who had shortly before divorced her first husband in the Circuit Court for Charles County. After Middleton's death intestate in 1960, his brothers and sisters, who would inherit all his estate if he died unmarried, filed a bill in the Circuit Court for Prince George's County by which they -- and one of them in her capacity as administratrix d. b. n. -- sought to disinherit the wife by establishing the invalidity of the marriage. Their claim was that the divorce decree was void for lack of jurisdiction in the Charles County court, in that both husband and wife were residents of Prince George's County and not of Charles County, and because of fraud in the procurement of the decree in that the wife testified falsely she had been chaste and faithful, whereas in truth she had led a dissolute life and been unfaithful.

Judges Powers and Bowie rejected the contentions of the brothers and sisters. The appeal is from the dismissal of their bill, after the sustaining of the widow's demurrer.

The specifics of the bill in the present case were that the defendant, then Mary Richardson, filed suit for divorce in the Circuit Court for Charles County against her husband, Norman Richardson, in May 1947, and in the following August was granted an absolute divorce; that in September 1947 Mary Richardson married Alexander Middleton, the brother of the complainants, and lived with him on his farm in Prince George's County until his death in 1960; that in 1959 Middleton sold all the farm, except the dwelling, for $141,890.70, of which $24,122.00 was in cash, with the balance of $117,768.70 secured by a mortgage payable to husband and wife, and that the cash was deposited in a bank in joint names; that the

widow had been named administratrix of the estate by the Orphans' Court for Prince George's County and then had been removed by the said court on petition of the complainants, one of whom, a sister, had been appointed administratrix d. b. n.; and that the widow had in her hands the proceeds of sale of certain corn, tobacco, cattle, farm implements, and other assets "that rightly belong to the estate."

The prayers for relief were that the divorce decree and the subsequent Richardson-Middleton marriage be declared void, that the mortgage securing part of the purchase price of the farm be declared an asset of Middleton's estate, that the widow be declared ineligible to inherit any part of his estate and that she be required to surrender all assets of the estate and to suffer judgment for any loss she has occasioned the estate by selling its assets below their market values.

Filed with the bill of complaint as an exhibit was a certified transcript of the divorce proceedings. The bill alleged that the wife had lived in Charles County with her parents for more than two years prior to the filing of the bill and that there had been a deliberate, final and uninterrupted abandonment by the husband for more than eighteen months and that the husband was a resident of Prince George's County. The husband appeared by counsel and in his answer admitted the allegations of the wife as to her residence and his. His counsel acknowledged receipt of notice of the taking of testimony and waived the husband's right to produce witnesses and to cross-examine witnesses of the wife and agreed to a provision in the decree calling for the payment of $5.00 a week for the support of the infant child of the couple.

The wife testified as to her residence with her parents in Charles County from the time her husband entered the service until the filing of the bill, more than two years, that her husband had refused to live with her when he came back from the war and that she had tried to be a true and faithful wife and do what she could to make a happy home. Her mother and another witness testified that she had made her home with her father and her mother in Charles County continuously since her husband entered the service, and that she was as good to her husband as could be and "had given him all the chance she can give him."

The parties to the case at bar proceeded below and have gone forward here on two assumptions, which we think justified. The first is that the assault of the appellants on the divorce decree is a collateral one, and the second is that if the appellants are to prevail on their first contention -- which is that the divorce decree was void because neither party was a resident of Charles County -- the words of the applicable statute, Code (1957), Art. 16, Sec. 22, that any person desiring a divorce "shall file his or her bill in the Court either where the party plaintiff or the defendant resides," impose a jurisdictional requirement.

The Courts do not always agree on when an attack is collateral and when it is direct. Some Courts regard an attack as direct only if it is made in the same proceeding in which the judgment attacked was rendered. This Court has given some indication of its belief that this is a correct rule. Peters v. League, 13 Md. 58; Thomas v. Hardisty, 217 Md. 523. Cf. Master v. Master, 223 Md. 618; Hinden v. Hinden, 184 Md. 575; Croyle v. Croyle, 184 Md. 126. Restatement, Judgments, Sec. 11, says a direct attack is not only the taking of proceedings in the action in which the judgment was rendered either in the trial or the appellate court but includes the taking of independent proceedings in equity to prevent the enforcement of the judgment, and continues: "Where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or reversed or modified or by a proceeding in equity to prevent its enforcement, the attack is a 'collateral ...


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