Adams v. Mallory

• Decision Date: 01 September 1986
• Docket Number: No. 49,49
• Citation: 308 Md. 453,520 A.2d 371
• Parties: Kevin Derrick ADAMS v. Charisse Annette MALLORY. ,
• Court: Maryland Court of Appeals

Page 453

308 Md. 453

520 A.2d 371

Kevin Derrick ADAMS v. Charisse Annette MALLORY.

No. 49, Sept. Term, 1986.

Court of Appeals of Maryland.

Jan. 30, 1987.

Leonard S. Bernstein, Baltimore, for appellant.

Joseph B. Spillman, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty., for Baltimore City and Robert M. Moss, Asst. State's Atty., on the brief), Baltimore, for appellee.

Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

COUCH, Judge.

The essential question presented herein is whether a default judgment on the issue of paternity may be entered ex parte against an alleged father in a paternity proceeding as a sanction for failure to answer or otherwise respond to interrogatories, which included questions directed to the issue of paternity. ¹

I

The facts of this case have been presented in an agreed statement. On July 11, 1984, Charisse A. Mallory (appellee), a single mother, filed a paternity petition in the Domestic Relations Division of the Circuit Court for Baltimore City. In the petition, she named Kevin D. Adams (appellant) as the father of her minor child, who was born on June 18, 1984. Before a Domestic Relations Division hearing examiner, appellant denied paternity and stated that he would secure legal counsel. The case was then referred to the State's Attorney's Office for Baltimore City to schedule a court hearing.

On October 5, 1984, the case came before the Circuit Court for Baltimore City (Watts, J.). The appellant failed to appear, and the court postponed the proceedings until October 17. ² The court signed a warrant for appellant, which would be forwarded to the sheriff if he failed to appear for the next hearing. The appellant appeared in the Assistant State's Attorney's office on October 8th, and was given a summons to appear on the 17th.

On October 17th, the parties appeared before Judge Watts. The appellant again denied that he was the father of the minor child and requested a blood test. The appellant also alleged that he was indigent and could not afford the test. The court ordered the Mayor and City Council of Baltimore City to advance the costs for the test, which appellant would have to reimburse if the court determined that he was the father. The blood test was scheduled for November 7th, but again the appellant did not appear. After another court hearing before Judge Watts on November 28th, when the court again indicated that a warrant would be forwarded to the sheriff if appellant did not show up for the next scheduled blood test, all parties appeared at the Baltimore Rh Typing Laboratory on December 10th.

On January 18, 1985, the parties were back in the circuit court. The blood test results did not exclude the appellant, and indicated a probability of paternity of 83.44%. ³ The appellant reiterated his denial of paternity, and requested a jury trial, which was scheduled for April 24, 1985. The appellant was told of his right to have his attorney present or to have an attorney appointed for him if he could not afford his own.

Thereafter, appellee's counsel ⁴ sent interrogatories to the appellant. ⁵ When no response was received by March 11, appellee's counsel sent a letter to appellant indicating that a response was overdue and should be received within five days or a default judgment would be requested. ⁶ Receiving no answer, appellee filed a Motion for Default Judgment or Sanctions on March 21 and mailed a copy to appellant. Five days later, appellant indicated to the Assistant State's Attorney that he never received the interrogatories. He was given a copy and told to secure an attorney and to respond to the document.

On the scheduled trial date (April 24, 1985), the appellant, without counsel, asked for a postponement. The case was referred to Judge Ward, who denied the request. The appellant reiterated his request later that afternoon before Judge Hammerman, arguing that he had just secured an attorney. The Assistant State's Attorney asked the court to rule on the default judgment motion. After considering arguments, the court granted appellee's request for a default judgment for appellant's "failure to answer interrogatories."

An ex parte hearing was held approximately one month later--May 29, 1985--to take testimony in support of the default judgment and to determine the relief to which appellee was entitled. The appellant was not informed about this hearing, and thus he was not present. After appellee presented witnesses and testimony on her behalf, a Decree Determining Paternity was signed. The Decree declared the appellant to be the father of the minor son and granted custody of the child to appellee. The Decree further ordered "that all other issues including visitation, child support, reimbursement of hospital costs ... reimbursement of blood test costs" be postponed until a subsequent hearing when the appellant would be present.

On August 14, 1985, the parties appeared in the circuit court (Friedman, J.). Represented by an attorney, the appellant again argued that he was not the child's father, and that he never received a jury trial on that issue. According to the Agreed Statement of Facts, the court indicated that it was too late to raise such issues. The default judgment and the Decree Determining Paternity had become enrolled, and there was no fraud, mistake or irregularity. The court noted that the appellant should have appealed or filed a motion within thirty days to set aside the default judgment. The court then proceeded to take testimony on the remaining issues to be resolved. A Modified Decree Determining Paternity was signed. ⁷

On September 13, 1985, the appellant filed an appeal to the Court of Special Appeals, which was decided in an unreported per curiam opinion (No. 1421, September Term, 1985, filed March 4, 1986). The appeal was limited to the issue of paternity. That court concluded, for reasons hereinafter discussed, that the appeal was untimely. We granted appellant's request for a writ of certiorari. We now reverse the judgment of the Court of Special Appeals.

We shall hold that in a paternity proceeding under Family Law Article, Title 5, subtitle 10, paternity may not be decided against the alleged father by a default judgment as a sanction for failure to provide discovery.

II

We are presented with two threshold issues. Appellee contends initially that the appellant never argued before the circuit court that it lacked the power to enter a default judgment for a failure to answer interrogatories. Md.Rule 885. However, appellee's counsel conceded during oral argument that a request was made to strike out the default judgment during the August 14th hearing before Judge Friedman. We think that appellant's request was adequate to raise the issue before the circuit court.

The second threshold issue concerns the timeliness of the appeal to the Court of Special Appeals. Appellee has moved to dismiss in this Court for a reason which differs from that given by the Court of Special Appeals. Appellee emphasizes the default nature of the judgment, while the appellate court emphasizes the subject matter of the present action (i.e., paternity).

Appellee relies on Himes v. Day, 254 Md. 197, 254 A.2d 181 (1969), which held, under the rules of procedure then in effect, that a default judgment on the issue of liability alone, entered for failure to respond to a complaint, was a final, not an interlocutory, judgment. Under this holding, the entry of a default was appealable before the extension of damages. The holding of Himes v. Day has been changed by the Maryland Rules of Procedure effective July 1, 1984. Under Maryland Rule 2-613(a), the default judgment of prior practice is now "an order of default." ⁸ Thereafter, the court "may enter a judgment by default if it is satisfied" concerning its jurisdiction and the mailing of a required notice. Md.Rule 2-613(e). Under this rule, an order of default is no longer appealable as a final judgment. See O'Connor v. Moten, 307 Md. 644, 647 n. 2, 516 A.2d 593, 594 n. 2 (1986). Ordinarily, the court will have to determine the relief to be awarded against the defaulting party before there is a final judgment on the claim involved in the default. Rule 2-613(e) makes this clear by providing that "[i]f, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may ... conduct hearings[.]"

In the instant case, however, the default judgment was entered as a sanction for a failure of discovery. Md.Rule 2-432(a) provides in part: A discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery ... if a party fails to file a response to interrogatories ... after proper service. Any such failure may not be excused on the ground that the discovery sought is objectionable unless a protective order has been obtained under Rule 2-403.

Rule 2-433(a) then provides in relevant part that

the court, if it finds a failure of discovery, may enter ...

....

(3) An order ... entering a judgment by default against the failing party.... If, in order to enable the court to enter default judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may ... conduct hearings[.]

We hold that the rule of Himes v. Day does not apply to an order of default entered as a discovery sanction under Rule 2-433. Rules 2-613 and 2-433 both contemplate that it may be necessary to conduct further proceedings "in order to enable the court to enter default judgment," Md.Rule 2-433(a)(3), or "to enter judgment," Md.Rule 2-613(e). Consequently, Judge Hammerman's order of April 24, 1985, which purported to enter a judgment of...