Collins v. Collins5/30/2002
Lieutenant Colonel Daniel Collins ("Lt. Col. Collins") appeals a decision of the Circuit Court for Montgomery County disposing of marital property, awarding child support, and awarding attorney's fees to appellee, Cynthia Collins, Ph.D. ("Dr. Collins"). On appeal, Lt. Col. Collins poses for our consideration three questions, which we have rephrased as follows:
I. Did the trial court commit reversible error in arriving at the form and the amount of the monetary award, the pension award, and the reservation on the issue of alimony, made in favor of Dr. Collins?
II. Did the trial court commit reversible error in its child support award?
III. Did the trial court commit reversible error by awarding attorneys' fees to Dr. Collins?
For the reasons set forth below, we vacate the portion of the court's monetary award requiring Lt. Col. Collins to pay Dr. Collins $5,896. We vacate the child support order and attorneys' fees award, and remand the case for further proceedings on those issues. In all other respects, we affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in Utah on July 21, 1979. When they divorced, Dr. Collins was fifty-one years old and Lt. Col. Collins was forty-nine years old. Their only child, Jason Collins, was born on October 28, 1984. The family moved a number of times due to Lt. Col. Collins' Air Force career, but, at the time of the divorce, they had lived in Maryland for twelve years. Lt. Col. Collins, however, maintained his residency in the State of South Dakota, as members of the armed forces are permitted to do.
In early January 2000, Lt. Col. Collins traveled from Maryland to South Dakota for a family funeral. On or about January 8, 2000, while still in South Dakota, he filed for divorce on the grounds of irreconcilable differences. During this time, Lt. Col. Collins was in the process of retiring. His retirement became effective March 31, 2000.
Lt. Col. Collins subsequently returned to the marital home in Maryland, without telling Dr. Collins that he was seeking a divorce. On January 14, 2000, Dr. Collins returned from work to find that Lt. Col. Collins had left, taking a number of belongings with him. He left notes for both Dr. Collins and Jason, but the notes did not explain why he had left or that he had filed for divorce.
On January 15, 2000, a process server arrived at the marital home and served the South Dakota divorce papers. The petition for divorce alleged, inter alia, that Jason was not Lt. Col. Collins' son and requested paternity testing. Jason, who was looking at the papers over Dr. Collins' shoulder, became immediately aware of these allegations. Consequently, Jason does not wish to see his father and has, throughout the proceedings below, refused visitation, even though Lt. Col. Collins apparently had a paternity test conducted and has satisfied himself that Jason is his son.
Dr. Collins immediately retained counsel in both Maryland and South Dakota in an effort to dismiss the South Dakota case for lack of jurisdiction. On February 1, 2000, Dr. Collins filed a complaint for absolute divorce in the Circuit Court for Montgomery County.
On March 21, 2000, the Circuit Court of the Second Judicial Circuit of South Dakota determined that it had jurisdiction to grant or deny the divorce, but that it lacked jurisdiction to decide issues of alimony, child support, child custody, and the division of marital property. The divorce was granted on August 7, 2000.
In the interim, the Maryland case was proceeding on the division of property, alimony, and child support and custody
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