Fritz v. Fritz

• Decision Date: 03 February 1977
• Docket Number: No. 431,431
• Citation: 34 Md.App. 600,368 A.2d 502
• Parties: Eugenia B. FRITZ v. Ernest S. FRITZ.
• Court: Court of Special Appeals of Maryland

Page 600

34 Md.App. 600

368 A.2d 502

Eugenia B. FRITZ v. Ernest S. FRITZ.

No. 431.

Court of Special Appeals of Maryland.

Feb. 3, 1977.

William R. Voltz, Washington, D.C., for appellant.

No appearance for appellee.

Submitted to MENCHINE, MOORE and LOWE, JJ.

MENCHINE, Judge.

Ernest S. Fritz (husband) was divorced a vinculo matrimonii from Eugenia B. Fritz (wife) by a decree of the Circuit Court for Montgomery County passed on October 21, 1975. His bill had been grounded on desertion. The decree read as follows:

'ADJUDGED, ORDERED and DECREED, that the Plaintiff ERNEST S. FRITZ, be, and he hereby is, divorced a vinculo matrimonii from the Defendant EUGENIA B. FRITZ, and it is further

'ORDERED, that Plaintiff pay the costs of this suit.'

It will be noted that the decree did not deal in any way with the property rights of the parties or with the maintenance and support of a minor child of the parties.

Wife, through counsel, on November 19, 1975, filed a 'motion to vacate judgment'-within 30 days after passage of the final decree.

The oral opinion of the chancellor included the following comment: 'when I read the pleadings and I read everything.' We assume from this language that no evidentiary hearing was had upon wife's motion. In any case, the transcript of the hearing below as it appears in the record is limited to an oral opinion of the chancellor.

The following order was passed on March 17, 1976:

'ORDERED, that the judgment herein be and it hereby is vacated and remanded to the Domestic Relations Master for hearing and consideration as to the property rights to be adjudicated, if any, and it is further

'ORDERED, that as to the divorce granted by the judgment herein, the defendant's motion be and it hereby is denied.'

It will be observed that the judgment was vacated as to a subject it had not addressed but the motion was denied as to the subject it did address.

The wife has appealed from the denial of her motion to vacate the divorce decree.

A motion to vacate, interposed within 30 days after entry of final judgment, is directed to the discretion of the trial court. Maryland Rule 625 a. Clark Baridon v. Union Co., 218 Md. 480, 483, 147 A.2d 221, 222-23 (1958).

In Hamilton v. Hamilton, 242 Md. 240, 218 A.2d 684 (1966), the Court of Appeals, although affirming denial of such a motion in a divorce proceeding, declared the rule and policy in appellate assessment whether discretion in such cases has been abused, saying at 243 (686):

'When a motion is made to set aside an unenrolled decree the trial court possesses an extremely broad power of revision and must exercise its discretion liberally 'lest technicality triumph over justice.' Eshelman Motors v. Scheftel, 231 Md. 300, 189 A.2d 818 (1963). The trial court's discretion is not restricted in regard to setting aside an unenrolled decree as it is where the decree has become enrolled, after which it may then only be revised on grounds of fraud, mistake or irregularity. Maryland Rule 625 a. In the case of an enrolled decree even a possible error in the entry of a summary judgment may not constitute such a mistake as would warrant setting it aside. Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 146 A.2d 771 (1959). See Tasea Investment Corp. v. Dale, 222 Md. 474, 160 A.2d 920 (1960) and Newark Trust Co. v. Trimble, 215 Md. 502, 138 A.2d 919 (1958).

'While there is a strong public policy in favor of sustaining the finality of divorce decrees (Leatherbury v. Leatherbury, 233 Md. 344, 196 A.2d 883 (1964)), this policy would not operate in regard to an unenrolled decree before parties could have changed their position and relied on it to their detriment. Cf. Pryor v. Pryor, 240 Md. 224, 213 A.2d 545 (1965) and cases cited therein.'

In the subject case there is no evidence that the parties have changed their position.

We shall detail the proceedings below from the time of the filing of the bill of complaint to the time of the passage of the decree.

Husband's bill of complaint had alleged that he had been a resident of Montgomery County for more than one year; that wife was an adult resident of Rome, Italy; that the parties had been married on November 12, 1949 in Charleston, South Carolina; that three children were born of the marriage, only one of whom was a minor (residing with wife in Rome, Italy); that wife on June 26, 1973, deserted and abandoned him without just cause or reason and that such desertion was continuous and uninterrupted since that date. He prayed for divorce a vinculo matrimonii, with a general prayer for such other and further relief as may seem just and proper.

On the same date the attorney for husband filed an order directed to the Clerk of Court requesting issuance of 'summons per Rule 107.' ¹

On April 24, 1975, the attorney for husband filed in the proceedings an affidavit purporting to be in compliance with the provisions of Rule 107 but reading as follows:

'I HEREBY CERTIFY that I personally delivered to the Rockville Post Office an envelope containing a true copy of the Bill of Complaint of Divorce A Vinculo Matrimonii filed herein and a true copy of the summons directing the defendant to file an answer or make other defense within 60 days after completion of service, ² addressed to the Defendant, EUGENIA B. FRITZ, at Viculo del Gallinaccio, 8, Int. 10, 00187 Roma, Italy; and that I prepaid the registered mail costs and the restricted delivery (addressee only) costs as well as costs for a return receipt and other postage as evidenced by the attached original receipt for registered mail, labeled Exhibit 1; and that I received back through the postal service the attached signature card, labeled Exhibit 2, which bears the signature of the defendant as having received it on March 21, 1975.' (Emphasis added.)

Decree pro confesso was taken on July 14, 1975.

On July 30, 1975, notice was given to husband's counsel-but not to wife-that a hearing would be had on September 11, 1975, at 11 a. m. before a Domestic Relations Master.

On September 3, 1975, a letter dated August 25, 1975, addressed by Eugenia B. Fritz to the Clerk of Court was filed in the proceedings. The letter read as follows:

'Viculo del Gallinaccio, 8, Int. 10

00187, Rome, Italy

Dear Mr. Smith:

This is my defense to Equity No. 51837, with special reference to Article 5 of said Equity. It represents also reply to James R. Trimm, Attorney for Plaintiff, Ernest S. Fritz.

(signed) Eugenia B. Fritz'

Attached to that letter and dated simultaneously therewith, was a letter purporting to have been addressed to counsel for husband containing, inter alia, the following allegations:

'. . . the Plaintiff has perjured himself in the following manner; the phrase, 'without just cause or reason,' is a deliberate untruth in Article 5, and I am prepared to present evidence and witnesses to testify that in fact that there was just cause and very concrete reason for my action. A statement was made by the Plaintiff on or about May 30, 1973 in the presence of my parents and my children that he intended to divorce me. This was a statement made by the Plaintiff in a rare instance of sobriety and with all deliberate forethought. I further contend that said Plaintiff also stated: 'I found you in Charleston and I am going to leave you in Charleston' . . ..

'In regard to the phrase 'without just cause,' I would call 'just cause' the fact that Plaintiff over a period of years has: 1) threatened my life with physical violence and that these threats were more often than not executed. 2) locked me out of own home, making me spend the night in the garage. 3) wilfully destroyed articles of furniture in our home. 4) was subject to continual periods of inebriation. 5) jeopardized my mental and physical health; 6) received compromising letters from two women on or about July 15, 1968-said letters are in my possession.'

Notwithstanding the filing of the tardy proper person answer ³ of wife, the hearing before the master went forward as scheduled without notice to her. Harrison v. Morton, 87 Md. 671, 677, 40 A. 897, 899 (1898).

On October 6, 1975, the Domestic Relations Master filed his report. The report noted that the 'defendant did not appear at the hearing and was not represented by counsel.' The report also noted that 'The defendant having defaulted by reason of her failure to file a responsive pleading, the Court signed a Decree Pro Confesso on July 14, 1975.' The report made no reference to wife's proper person answer in the form of the letters referred to herein, supra. The report recommended that 'Ernest S. Fritz be awarded a divorce a vinculo matrimoni . . .' and that 'the costs . . . be paid by the plaintiff.' The report noted, however, that a copy had been mailed to wife at the address appearing on her letters, supra.

On October 21, 1975, a decree was passed granting to husband a divorce a vinculo matrimonii.

On November 19, 1975, the wife, through counsel, filed her motion to vacate, that read in pertinent part as follows:

'1. Defendant is presently residing in Rome, Italy and mail service to and from Rome is very slow. Upon receiving the report of the Domestic Relations Master, Defendant immediately attempted to communicate with Counsel to object to the Decree being entered and to take whatever other actions were necessary for her to have a full hearing of her case. Upon receiving prior Court papers, Defendant had written directly to the Court and was of the opinion and belief that her letter would serve as a responsive pleading and avoid default.

'2. Defendant has a meritorious defense to Plaintiff's cause of action and a counter claim she wishes to pursue. A copy of the Answer and Counter-Claim is attached hereto and the allogations (sic) set forth therein adopted as a part of this Motion.'

The 'answer' referred to in the second paragraph of wife's motion denied that she had deserted and abandoned husband as alleged and alleged that 'there are certain property rights to be...