Furman v. Glading

• Citation: 36 Md.App. 574,374 A.2d 414
• Decision Date: 15 June 1977
• Docket Number: No. 1192,1192
• Parties: Lynn A. FURMAN formerly Lynn A. Glading v. Peter T. GLADING.
• Court: Court of Special Appeals of Maryland

Page 574

36 Md.App. 574

374 A.2d 414

Lynn A. FURMAN formerly Lynn A. Glading v. Peter T. GLADING.

No. 1192.

Court of Special Appeals of Maryland.

June 15, 1977.

Glenn M. Cooper, Chevy Chase, with whom were Ivan J. Shefferman and Shefferman, Paley & Rothman, Chartered, Chevy Chase, on the brief, for appellant.

Jeffrey N. Greenblatt, Rockville, with whom were Brodsky & Greenblatt, Rockville, on the brief, for appellee.

Argued before THOMPSON, POWERS and LOWE, JJ.

LOWE, Judge.

In 1972 appellant Lynn A. Furman was divorced from appellee Peter T. Glading by the Circuit Court for Montgomery County, following proceedings in which the court obtained personal jurisdiction over both parties by virtue of their presence in this State. Custody of their then two-year-old daughter was awarded to Mrs. Furman, but the decree was silent as to child support. On June 17, 1976 Mrs. Furman petitioned the Circuit Court for Montgomery County to award her a reasonable sum for the child's support and maintenance. Mr. Glading, who had become a resident of Virginia, was served in that state with the petition and rule to show cause.

Mr. Glading challenged the jurisdiction of the circuit court over his person by motion raising preliminary objection, which motion was granted by order of October 8, 1976 dismissing Mrs. Furman's petition for child support. For reasons not revealed by the record, the court signed two additional but conflicting orders on October 22, 1976. One order denied Mrs. Furman's motion for reconsideration of the October 8, 1976 dismissal, and the other order granted that motion to reconsider and overruled Mr. Glading's motion raising preliminary objection. Recognizing this oversight, the court on November 8, 1976 passed an order pointing out the conflict and clarifying the situation by

1. denying Mrs. Furman's motion for reconsideration of Mr. Glading's motion raising preliminary objections, and

2. vacating the order of October 22, 1976 which overruled Mr. Glading's motion raising preliminary objections.

Mrs. Furman noted an appeal on November 10, 1976.

Taking advantage of these errors, Mr. Glading moved to dismiss Mrs. Furman's appeal on the ground that she was appealing the order of October 8, 1976 beyond the 30 days permitted by Md. Rule 1012 a. We summarily denied the motion to dismiss.

Still seeking what advantage may be left to him arising from the chancellor's oversight, Mr. Glading now contends that this appeal may not reach the jurisdictional issue at the basis of the October 8, 1976 order dismissing Mrs. Furman's petition, but that appellant must address herself solely to the denial of her motion to reconsider that order. The reason for his contention is obvious. The denial of a motion to reconsider is an exercise of the chancellor's discretion. To emphasize the severity of the burden he imposes upon her, appellee quotes from Zimmer v. Miller, 64 Md. 296, 299, 1 A. 858, 859:

"There is, perhaps, no principle more firmly established by numerous decisions in this State than that there can be no appeal from the determination by a Court of equity of questions addressed to its sound discretion.",

and from Carlile v. Two Guys, 264 Md. 475, 477-478, 287 A.2d 31, 33:

"There is probably no principle of law that rests on more decisions of this Court than the concept that a trial judge's granting or refusing a new trial fully, partially, conditionally, or otherwise is not reviewable on appeal except under the most extraordinary or compelling circumstances. This is true even though the trial judge's decision is based on mistake or erroneous conclusions of law or fact. Our adherence to this rule is unwavering and we do not find any extraordinary or compelling circumstances in the present case which would permit a review. In fact, this Court, in its long history, has never found such circumstances to exist. (emphasis added)."

Even if we consider the language of Zimmer somewhat an overstatement of the burden, and note that Carlile dealt with a motion for a new trial rather than a motion to reconsider, the test appellant must meet is a severe one even in the eyes of a more contemporary Court of Appeals which is not prone to overstatement. The granting or denial of a motion to reconsider an unenrolled judgment is within the discretion of the trial court, Int'l-Indus. Developers v. Berg, 269 Md. 250, 251, 305 A.2d 121, and while an appeal will lie from that determination, the lower court's decision will not be reversed unless it was an abuse of discretion. J. B. Corporation v. Fowler, 258 Md. 432, 265 A.2d 876.

Because the confusion (which resulted in the noting of the appeal two days beyond the original appeal period) was caused by the error of a court of conscience, it is as inconceivable that appellant's chance of success upon appeal should be reduced, as permitting such an error to preclude the right of appeal at all. We hold, therefore, that upon overruling appellee's motion raising preliminary objection and granting appellant's motion to reconsider on October 22, 1976, the court effectively struck out its order of October 8, 1976 dismissing appellant's petition after twelve days of appeal time had run. The dismissal order was no longer viable, and was reborn on November 8, 1976 when the October 22, 1976 order was vacated. The appeal time accordingly began to run again from November 8, 1976 when the court corrected its error. Hess v. Chalmers, 27 Md.App. 284, 288, 339 A.2d 706. The appeal was timely as to both orders.

The issue upon appeal was clearly set forth by the chancellor's ruling following the hearing on October 7, 1976:

"THE COURT: All right. I think probably the language in Renwick (v. Renwick), 24 Md.App. 277, at page 285 (330 A.2d 488) is controlling, where Judge Lowe said, 'We further note that alimony and support are manifestations of a husband's common law liability to provide for his wife and children respectively. It follows then that alimony and support are actions in personam and, as such, require that a judgment against a non-resident defendant based only on constructive service be void. The traditional view, and the current Maryland rule, McSherry v. McSherry, 113 Md. 395 (77 A. 653) is that a non-resident defendant must be served within the territorial jurisdiction of the court, or appear personally or through counsel, in order for in personam jurisdiction to obtain.'

Inasmuch as he has not been served within the jurisdiction, I must conclude that the defendant's motion raising preliminary objections is well taken."

That ruling was correct as far as it went; however, there was an added element which the court claimed to have considered but which it did not address.

"MR. SHEFFERMAN (appellant's attorney): May I say one other thing? Does the Court realize he (appellee) was served within this jurisdiction when the (divorce and custody) case started, this is a case of continuing jurisdiction?

THE COURT: Yes, sir."

We find that the chancellor erred. The case he relied upon, Renwick v. Renwick, supra, did not have before it the question of continuing jurisdiction following personal service within this jurisdiction. We hold that the parties, once having been subject to the court's jurisdiction for purposes of determining custody and child support under Md.Code, Art. 16, § 66 (now in pertinent part Md.Code, Cts. Art., § 3-602), remained subject to such jurisdiction for the purpose of modifying any decree or order which affected the child. Berlin v. Berlin, 239 Md. 52, 57, 210 A.2d 380. ¹

Appellee contends that in adopting the continuing jurisdiction theory (as applied to Md.Code, Art. 16, § 66), the Court of Appeals in Berlin did so within the restrictions comprehended by McSherry v. McSherry, 113 Md. 395, 77 A. 653. While recognizing the established law that alimony and support decrees were in personam, and that a non-resident must be served within the territorial jurisdiction of the court in order for in personam jurisdiction to obtain, McSherry held that prior jurisdiction obtained by proper personal service could continue where the court reserved to itself in the decree, by agreement of counsel, the future determination of the amount of alimony and child support. Id. at 401, 77 A. 653.

llee further contends that because the Court of Appeals, by Md. Rule S72 c. 2., requires a reservation of jurisdiction where a divorce a vinculo follows an a mensa decree before in personam relief may be granted, the enaction of this rule (although restricted to converting an a mensa decree into an a vinculo decree by supplemental bill) somehow revives and enlarges the McSherry reservation principle. We read nothing into Rule S72 c. 2. beyond its expressly stated limitations.

Nor do we agree that Berlin was written within the strictures of McSherry. McSherry was decided June 22, 1910, prior to the enactment of Md.Code, Art. 16, § 66 by Ch. 573 of Laws 1920, and purported to answer only the single question before it without having to go beyond its precise holding. Berlin, on the other hand, was written in express contemplation of Md.Code, Art. 16, § 66 and stated that the adoption of the continuing jurisdiction rule was founded upon the theory of subsequent modification after custodial jurisdiction attached, whether that modification was authorized by the...