Judicial Selection Coalition

MARY RODDY-DUNCAN v. THEODORE DUNCAN
COURT OF Unique APPEALS OF MARYLAND

FACTS:

The appellant, Mary Roddy-Duncan (“Wife”), and the appellee, Theodore Duncan (“Husband”), had been married on March 12, 1988, in Philadelphia.  After the couple’s separation in 1999, the Husband, who worked for the federal government, was reassigned to the Washington, D.C. area.  After living for nine months in northern Virginia, he moved to Montgomery County, Maryland.  The Wife remained at all times in Pennsylvania but had moved, by June 2000, from Cambria County to Philadelphia.  The wife’s divorce proceeding in Pennsylvania was ongoing when the husband, who had moved to Maryland, and was concerned about orders being entered in Pennsylvania regarding the division of his government pension, commenced his own divorce proceeding in Maryland, in which the filings suggested that the only proceedings that had taken place in Pennsylvania related to temporary custody matters.  When the wife failed to appear, the trial court entered a judgment by default.  Defendant wife appealed from an order of the Circuit Court for Montgomery County (Maryland), which denied her motion to vacate for lack of jurisdiction and fraud a default judgment granting plaintiff husband an absolute divorce and custody of the couple’s children and directing the wife to pay child support.

Problems:

The following are the issues that required to be determined:

Whether or not personal jurisdiction was ever obtained by service on the wife, under Md. R. 2-126.
Whether or not the failure to mention the Pennsylvania divorce proceeding to the trial judge meant that the judge failed to make the full jurisdictional inquiry needed in any custody matter by the Uniform Child Custody Jurisdiction Act, at Md. Code Ann., Fam. Law § 9-206.

DISCUSSION:

Whether or not personal jurisdiction was ever obtained by service on the wife, under Md. R. 2-126.

Default judgment may possibly occasionally be suitable and is sometimes needed, but, since of its fundamentally ex parte nature, must not proceed until the court is entirely satisfied that there has been proper notice of the impending proceedings served on the defaulting absentee party.  It is true that in Maryland a proper return is prima facie evidence of valid service of method and a basic denial of service by the defendant is not sufficient to rebut the presumption arising from such a return.  Such references to the presumption are, nonetheless, in the context of the return of service being made by the sheriff.  Under Md. Code Ann., Fam. Law § 9-205, it is clear that if a court is contemplating holding a hearing at which it will, or could, decide custody issues, a parent with custodial rights, or one who has the appropriate to claim custody, need to be notified that such an issue may possibly be the subject of the hearing.  The notice in the case at bar did not notify either parent that the court was contemplating making a custody choice.

Whether or not the failure to mention the Pennsylvania divorce proceeding to the trial judge meant that the judge failed to make the full jurisdictional inquiry needed in any custody matter by the Uniform Child Custody Jurisdiction Act, at Md. Code Ann., Fam. Law § 9-206.

It was clearly brought to the attention of the trial judge that there had at one time been pending litigation between the Husband and the Wife in Pennsylvania.  As to the status of that litigation, however, the judge was selectively furnished with an only partial status report.  The Uniform Child Custody Jurisdiction Act, of which Maryland is a signatory, insists upon complete and successful interstate communication when 1 state is thinking about entertaining a custody action when custody proceedings are still pending in one more state.  Md. Code Ann., Fam. Law § 9-206(a) squarely requires that Maryland defer exercising jurisdiction until the proceeding in another state has been stayed.  Under the Uniform Child Custody Jurisdiction Act, the court must go via a multi-step method in determining regardless of whether to exercise jurisdiction.  First, it must ascertain whether or not it has jurisdiction.  If it finds that there is jurisdiction, then the court must establish whether there is a custody proceeding pending or a decree in an additional state that presently has jurisdiction.  If so, the court need to decline to exercise its jurisdiction.  The point is that when two states are possibly involved in the same or overlapping litigation, neither must plow forward unilaterally with out at least consulting the other.  An equity court in a proceeding relating to child custody has an affirmative duty to examine the question of the pendency of proceedings elsewhere in Maryland or in other jurisdictions and must do so of its own motion even if the problem is not raised by the parties themselves.  It is not only proper but essential for a court of Maryland to decide, as a preliminary matter, whether to exercise its jurisdiction where it becomes apparent that a proceeding concerning the custody of the child or kids is pending in a court in another jurisdiction.  This indeed is the mandate of the Uniform Child Custody Jurisdiction Act.  The Husband did abuse the judicial system in Maryland and Pennsylvania to his greatest advantage.  The Court held that the Maryland trial judge may have been deliberately misled by being selectively furnished with partial details.  The Court deemed it appropriate to reverse the judgment and to remand the case to Montgomery County so that the trial judge may reconsider the Motion to Vacate the Judgment at an adversary hearing with the benefit of full argument and feasible evidentiary input from both parties.

JUDGMENT: The court reversed the default judgment and remanded the matter with directions to conduct a hearing on the motion to vacate.  It also suggested that the trial court contemplate whether or not any ethical lapses had occurred in the husband’s counsel’s presentation of the matter.

Disclaimer:

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