Barrett v. Barrett

• Citation: 207 A.3d 646,240 Md.App. 581
• Decision Date: 01 May 2019
• Docket Number: No. 68, Sept. Term, 2018,68, Sept. Term, 2018
• Parties: Brian M. BARRETT, Sr. v. Carol J. BARRETT
• Court: Court of Special Appeals of Maryland

240 Md.App. 581

207 A.3d 646

Brian M. BARRETT, Sr.

v.Carol J. BARRETT

No. 68, Sept. Term, 2018

Court of Special Appeals of Maryland.

May 1, 2019

Argued by: John K. Phoebus (Kristy M. Hickman, Anthenelli, Phoebus & Hickman, LLC, on the brief) all of Salisbury, MD, for Appellant.

Argued by: Peter J. Golba (Seidel, Baker & Tilghman, PA, on the brief) all of Salisbury, MD, for Appellee.

Panel: Fader, C.J., Wright, Leahy, JJ.

Leahy, J.

A hearing on the merits of the divorce filed by Carol Barrett, appellee, against Brian Barrett, Sr., appellant, was held on October 2, 2017, before a magistrate in the Circuit Court for Wicomico County. About three months after the hearing, the magistrate issued her Report and Recommendations ("Report"). Rather than serve the parties through the Maryland Electronic Courts ("MDEC") system or regular mail, the clerk of the court placed copies of the Report, along with notices regarding the filing of exceptions and certificates of service, in mailboxes located at the courthouse that are assigned to the parties' counsel. Brian¹ did not retrieve the Report from the mailbox until February 5, 2018—the last day on which he could file timely exceptions to the judgment of divorce. The circuit court entered a judgment of absolute divorce the following day, February 6. On February 7, Brian filed exceptions and a motion for leave to file them, along with a separate motion to alter, amend or to revise the judgment. He argued that because he was not properly served, the time for filing exceptions should not run from the date that the Report was docketed. On February 21, the court summarily denied Brian's filings.

Brian appealed from the court's denial of his motion to alter, amend, or revise the judgment and the denial of his exceptions, and presents one question for our review:

"Is the placement of a Magistrate's report and recommendations in a courthouse mailbox proper service under Rule 1-321?"

Wicomico County is an MDEC County² governed by Title 20 of the Maryland Rules. For the reasons explained in this opinion, we remand to the circuit court with instructions to consider whether service of the Report in this case satisfied the Maryland Rules, specifically Title 20 governing electronic service in MDEC counties.

BACKGROUND

Carol filed for divorce on February 7, 2017. On June 14, 2017, with the parties' consent, the Circuit Court for Wicomico County referred the divorce proceeding to a magistrate. Following a merits hearing held on October 2, 2017, Magistrate Connie G. Marvel invited the parties to submit written closing statements, which the parties duly submitted several weeks later.

About three months after the parties submitted their closing arguments, Magistrate Marvel issued the Report, along with a notice to the parties regarding filing exceptions and a certificate of service.³ The court uploaded all three documents to MDEC, docketing them on January 23, 2018.⁴ The clerk's office then placed paper copies of all three documents, dated January 23, 2018, in mailboxes located at the courthouse that are assigned to the parties' attorneys. The certificate of service, signed by the clerk of the court, indicated that the court served the parties on January 23 by "Courthouse Mailbox" rather than hand delivery or U.S. mail. The notice informed the parties that they would have "[10 days] from the date [the Magistrate's] written Report/Proposed Order is served" to file exceptions.

On February 6, 2018, having received no exceptions to the Report, the circuit court entered a judgment of absolute divorce premised on the magistrate's recommendations.

The following day, February 7, Brian filed three papers with the court: a motion for leave to file exceptions, exceptions, and a motion to alter or amend the judgment pursuant to Maryland Rule 2-534 or to revise under Maryland Rule 2-535. In his motions, he contended that placing the Report in the attorneys' courthouse mailbox did not constitute proper service under the Maryland Rules. Brian asserted that the time for filing exceptions should not run from the date of the January 23 docket entry because the magistrate did not properly serve the Report. Brian further argued that the irregular service was a sufficient ground for the circuit court to exercise its revisory power.

Attached to Brian's motion for leave to file exceptions was an affidavit by Janet Lane, the secretary for Brian's attorney. She attested that she checked the courthouse mailbox on January 23 and January 25, 2018, between the hours of 10:00 a.m. and noon, and "[n]othing was in the box." She did not work on January 26-30 because she was ill, and she did not check the courthouse mailbox when she returned to work on January 31. One of Lane's colleagues checked the mailbox around noon on February 5, found the Report, and brought it to Lane. Lane sent the Report to the firm's Crisfield office in "a courier bag used to transport paper documents between offices" and did not notify Brian's attorney that she received the Report. Brian's attorney received the report on February 6 when the courier bag reached the Crisfield office.

Carol filed oppositions to Brian's three motions. The circuit court summarily denied all of Brian's motions on February 21, 2018. In the top margin of Brian's exceptions, the court wrote "[e]xceptions are denied as untimely. Rule 9-208(f)." The court stamped "denied" on Brian's motion to alter, amend, or revise.

Brian timely appealed to this Court on March 19, 2018.

DISCUSSION

Brian contends that the circuit court judge's denial of his motion to alter, amend, or revise the judgment of absolute divorce was an abuse of discretion because "[p]lacing a paper in a courthouse box maintained for the convenience of the court and clerk's office is not a proper method of service under Rule 20-106(b) or Rule 1-321(a)." According to Brian, the rules required the magistrate to serve him electronically; by hand-delivery to his counsel; by leaving a copy at his counsel's office or home; or by mailing a copy to his counsel's office, which is his counsel's address of record. Without proper service, Brian urges, "the time for filing exceptions did not begin to run until February 5, 2018, the date that [he] constructively received the report and recommendations."

Carol responds that the court committed no legal error in denying Brian's motion because Brian knew the Report was forthcoming, Brian's counsel acknowledged his duty to monitor the courthouse box, and Brian's counsel had actual possession of the magistrate's report before the deadline for filing exceptions expired.

The recommendations of a magistrate inform the trial court's final judgment in certain circumstances. If the circuit court has a "standing magistrate for domestic relations matters and a hearing has been requested or is required by law,"the court must refer certain domestic relations matters to the magistrate. Md. Rule 9-208(a)(1). Matters may also come before a magistrate, as in this case, upon agreement by the parties. Md. Rule 9-208(a)(2). Once a magistrate has developed his or her findings, the magistrate must "prepare written recommendations, which shall include a brief statement of [his or her] findings and [ ] be accompanied by a proposed order." Md. Rule 9-208(e)(1). The magistrate must notify the parties of his or her recommendations, "either on the record at the conclusion of the hearing or by written notice served pursuant to Rule 1-321. " Id. (emphasis added).

If a party wishes to contest the magistrate's findings or recommendations, he or she can file exceptions within a narrow timeframe. Specifically, "within ten days after recommendations are placed on the record or served ... a party may file exceptions with the clerk." Md. Rule 9-208(f) (emphasis added). "[I]f exceptions are not timely filed, the court may direct the entry of the order or judgment as recommended by the magistrate." Md. Rule 9-208(h)(1)(B). A party's failure to timely file exceptions forfeits "any claim that the master's findings of fact were clearly erroneous." Miller v. Bosley , 113 Md. App. 381, 393, 688 A.2d 45 (1997) ; see also Green v. Green , 188 Md. App. 661, 674, 982 A.2d 1150 (2009). The party may still, however, challenge the court's "adoption of the [magistrate's] application of the law to the facts." Green , 188 Md. App. at 674, 982 A.2d 1150.

The magistrate must serve written findings to the parties within 10 days after the conclusion of the hearing if the divorce is uncontested, and within 30 days if the parties agreed to be heard before a magistrate. Md. Rule 9-208(e)(1). Brian directs our attention in this appeal, however, to how the magistrate is required to notify the parties of his or her recommendations.

Pursuant to Rule 1-324, which governs the court's "[n]otification of orders, rulings, and court proceedings,"

Upon entry on the docket of (1) any order or ruling of the court not made in the course of a hearing or trial or (2) the scheduling of a hearing, trial, or other court proceeding not announced on the record in the course of a hearing or trial, the clerk shall send a copy of the order, ruling, or notice of the scheduled proceeding to all parties entitled to service under Rule 1-321 ,^{[5 ]} unless the record discloses that such service has already been made.

Md. Rule 1-324(a) (emphasis added).

The above-recited means of paper service apply in all situations "[e]xcept as otherwise provided in the[ ] rules or by order of the court." Md. Rule 1-321(a). Title 20 of the Maryland Rules, entitled "Electronic Filing and Case Management," governs all "new actions and submissions," Md. Rule 20-102(a), in "MDEC Counties."⁶ Md. Rule 20-101(m). Although all Maryland Rules continue to apply to cases filed in MDEC Counties, "[t]o the extent that there is any inconsistency, the Rules in [ ] Title [20] prevail." Md. Rule 20-102(c).

Maryland Rule 20-106(a)(2) provides that "judges, judicial appointees, clerks, and judicial personnel, shall file...