Flynn v. May

Decision Date30 June 2004
Docket NumberNo. 1719,1719
Citation852 A.2d 963,157 Md. App. 389
PartiesJennifer FLYNN v. Dannie MAY, Jr.
CourtCourt of Special Appeals of Maryland

Emily Miller Rody (Michael Flannery, Sayra Meyerhoff, Legal Aid Bureau, Inc., on the brief), Towson, for appellant.

Barbara Poklis Lewis (Patricia E. McDonald on the brief), Towson, for appellee.

SALMON, EYLER, JAMES R., CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

MOYLAN, J.

Applicability of the Default Judgment Rule To Child Custody Disputes

Imposing a judgment by default is a harsh sanction, but it is a measure that is sometimes called for to unclog the arteries of litigation. In its ordinary context, it involves a civil suit between two litigants, and what is at stake is routinely an award measured in dollars. The party suffering the loss has, in major measure, brought it upon himself. The appropriateness of the procedure is far less clear-cut, however, when a party possibly hurt by the sanction is one other than the dilatory litigant and when what is at stake is something other than dollars.

This appeal raises, as a matter of first impression, the question of whether the default judgment procedure should even be available in a dispute over the custody of a child. Whereas in the ordinary civil suit, two litigants are fighting about money, in a child custody contest the very object of the suit is a real, albeit unnamed, party whose best interest transcends that of either formal litigant. Should the custody of a young child, arguendo, ever be taken away from a more fit custodian and awarded to a less fit custodian simply because the more fit custodian had been guilty of a procedural default? Should the failure to file a responsive pleading, a matter of great moment perhaps to administrative judges, ever be permitted, ipso facto, to render a mother an unfit custodial parent of her child? In such a case, does the law's legitimate interest in unclogging the arteries of litigation "trump" the best interest of the child? It may well be, as we are unabashedly suggesting, that the default judgment procedure has no applicability in child custody cases, but it is unnecessary to propound so sweeping a holding in this case. It is enough for us to hold that, in the circumstances of this particular case, the award of a change of custody by default, without a hearing on the merits, constituted an abuse of discretion. The larger question, however, remains one that merits serious further consideration.

The First Seven Years

The appellant, Jennifer Flynn ("Mother"), had a child, Bryant Austin May, by the appellee, Dannie May, Jr. ("Father"), on August 2, 1996. The Mother and Father were never married, but the Father acknowledged paternity and the couple lived together until November 17, 2000. When the Mother and Father separated, Bryant was four years of age. By informal agreement between the parents, the Mother assumed primary physical custody. Bryant lived with his Mother and his maternal grandmother in Dundalk until February of 2003. At that time, Bryant and his Mother moved into a home of their own, also in Dundalk. By virtue of the visitation schedule agreed upon by the parties, Bryant spent the weekends, from early Saturday morning until early Sunday evening, with the Father. Bryant also spent time with his Father on Monday and Wednesday evenings from 3 P.M. until 8 P.M. None of this was by court order; nor was there any court order establishing the amount of child support.

The Case Goes to Court

On April 10, 2003, the Father filed a petition in the Circuit Court for Baltimore County seeking both the primary physical custody of Bryant and child support from the Mother. It was at that point that procedural momentum took control of the case. The Mother was served with a copy of the Father's petition on April 24. She attempted to respond pro se. The decision to proceed pro se was a serious tactical mistake on her part with, as this case illustrates, potentially grievous consequences. On May 21, the Mother sent to the court her one-page typewritten answer to the petition, in which she responded to each and every one of the thirteen paragraphs of the petition. On the following day, however, the clerk of the circuit court returned the response to the Mother, along with a form that had a checkmark beside the following entry:

No certification of mailing or service (Md. rule 1-323) (Need to mail a copy to the other party and state that you did this on your pleading)

Below that entry was the further handwritten message, "State when & how sent." That is not a simple message for a layman to decipher.

Although there was a dispute, unresolved, about whether the Mother subsequently made successful telephone contact with the Father's attorney, the bottom line was that the Mother's answer was never officially received by the court because of the lack of certification of service. As far as the Mother was concerned, she had answered; but officially her ineffectual attempt was a non-answer. Accordingly, the Father on June 3 filed a Request for Order of Default against the Mother because of her "failure to plead as provided by the Maryland Rule." On that same day, the circuit court judge, the first of three to make rulings in this case, signed an Order of Default. It cannot be gainsaid that the Order of Default was properly entered. Maryland Rule 2-613(b) provides:

(b) Order of default.If the time for pleading has expired and a defendant has failed to plead as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default. The request shall state the last known address of the defendant.

(Emphasis supplied).

As the well settled caselaw makes clear, however, that order of default, as opposed to an ultimate judgment of default, was only interlocutory. The interlocutory nature of such an order was made clear by Banegura v. Taylor, 312 Md. 609, 618, 541 A.2d 969 (1988):

[N]o appeal may be taken from the entry of an order of default. Likewise, an immediate appeal could not have been taken from the denial of Banegura's motion to strike the default order. That order was interlocutory.

(Emphasis supplied). See also O'Connor v. Moten, 307 Md. 644, 647 n. 2, 516 A.2d 593 (1986); Adams v. Mallory, 308 Md. 453, 459-60, 520 A.2d 371 (1987) ("[A]n order of default is no longer appealable as a final judgment."); Curry v. Hillcrest Clinic, 337 Md. 412, 425-26, 653 A.2d 934 (1995); Breuer v. Flynn, 64 Md.App. 409, 420, 496 A.2d 695 (1985); Bliss v. Wiatrowski, 125 Md.App. 258, 265, 724 A.2d 1264 (1999) ("[A]n order of default is interlocutory in nature and can be revised by the court at any time up until the point a final judgment is entered."); Holly Hall v. County Banking and Trust, 147 Md.App. 251, 261-62, 807 A.2d 1201 (2002). See also Paul Niemeyer and Linda Schuett, Maryland Rules Commentary at 469-74 (2d ed.1992).

In the World of Contumacy, There Are Degrees of Contumaciousness

We interrupt the narrative for a moment to place in perspective what the Mother had done wrong so as to incur the order of default. The nature of her legally inefficacious effort to file a proper response bears not, of course, on the technical actuality of a pleading failure, but on the degree of blameworthiness of that failure. The caselaw tells us that the severity of the sanction must be commensurate with the flagrancy of the procedural failure.

In Holly Hall v. County Banking and Trust, supra, this Court held that a trial judge had abused his discretion in failing to vacate a judgment by default. The appellant in that case had unquestionably been guilty of a procedural failure in that "counsel prepared responsive pleadings but `inadvertently' failed to file them." 147 Md.App. at 267, 807 A.2d 1201. Notwithstanding that failure, Judge James Eyler observed for us that "there was no suggestion by appellee that appellants or their counsel acted wilfully or contumaciously." Id. There is similarly no suggestion in this case that the Mother, in failing to satisfy the certification of service requirement, "acted wilfully or contumaciously." In that case, Judge Eyler held:

In light of appellants' showing with respect to a defense on the merits, and considering all relevant circumstances as to whether "it is equitable to excuse the failure to plead," we hold that the circuit court abused its discretion in failing to vacate the order of default.

Id. (emphasis supplied).

The Hearing Was Apparently Still on the Track

Curiously, the Order of Default further directed that "testimony to support the allegations of the Complaint be taken before one of the Standing Masters of this Court." The Mother received proper notice that the Order of Default had been filed on June 4 and that she had 30 days within which to move to vacate the order. She filed no such motion.

Notwithstanding the Order of Default, which was filed on June 4, subsequent developments gave the appearance that the case was still on track for a hearing on the merits, and this may have contributed to the pro se Mother's going procedurally astray. On July 8, a notice was sent to the parties scheduling a hearing on August 1 on the "issues of custody, visitation and child support (Default)." Also on July 8, the attorney for the Father wrote to the Mother, requesting her answers to the interrogatories that had been mailed to her on May 14. The Mother submitted her answers on July 31 and the Father utilized some of that information at the hearing on August 1. The Mother appeared at the hearing on August 1 with five witnesses, who were prepared to testify on her behalf.

The Procedural Crack of Doom

At the very outset of the August 1 hearing, the trial judge, the second to make rulings in this case, advised the Mother that neither she nor any of her witnesses would be permitted to testify and that she would not be permitted to offer evidence of any kind.

[COUNSEL FOR FATHER]: Your Honor, this is a
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