Garland v. Garland, 736

• Decision Date: 15 July 1974
• Docket Number: No. 736,736
• Citation: 22 Md.App. 80,321 A.2d 808
• Parties: Thomas A. GARLAND v. Mary R. GARLAND.
• Court: Court of Special Appeals of Maryland

Page 80

22 Md.App. 80

321 A.2d 808

Thomas A. GARLAND v. Mary R. GARLAND.

No. 736.

Court of Special Appeals of Maryland.

July 15, 1974.

Thomas A. Garland, Columbia, with whom were William T. Glasgow, Healy & Garland, Columbia, on the brief, for appellant.

James G. Beach, Jr. and Eugene L. Miles, III, Baltimore, with whom were Buckmaster, White, Mindel & Clarke, Baltimore, on the brief, for appellee.

Argued before MORTON, THOMPSON and LOWE, JJ.

THOMPSON, Judge.

On November 8, 1973, Thomas A. Garland, appellant, was found to be in contempt of a decree of divorce by the Ciricuit Court for Baltimore County, dated May 16, 1973. At the time of the contempt adjudication, the divorce decree was also modified. Mr. Garland appeals.

The decree of May 16: awarded to Mrs. Garland a divorce a vinculo matrimonii; ordered the appellant to pay $30 per week, per child, for each of the four children then in the custody of the wife, to pay $75.00 per week alimony, and to pay $1,250 towards his wife's counsel's fees; and directed that the proceeds of a joint savings and loan account, totaling $9,037.95 plus interest from September 30, 1971, be divided equally between the parties. An appeal to this Court from this decree was timely entered.

While appeal from the divorce decree was pending, the proceedings involved in the instant appeal took place. On June 18, 1973, a petition for contempt and modification of the divorce decree was filed by Mrs. Garland. Appellant, on July 3, 1973, responded with a demurrer and answer. Pursuant to a hearing on the petition, Judge John Grason Turnbull, on November 8, 1973, overruled the demurrer, found the appellant to be in contempt for violating the divorce decree, and modified that decree to reflect changes in circumstances over the preceding 6 months.

I Jurisdiction

The original papers were transmitted to this Court on appeal from the divorce decree under Md.Rule 1026 b. Appellant questions the jurisdiction of the trial court to proceed with the hearing on the petition at a time when the court below neither retained the original papers from the divorce proceeding, under Md.Rule 1026 f nor obtained certified copies thereof under § 10-204 of The Courts Article. Mr. Garland duly objected to proceeding without benefit of the original papers.

The record discloses that counsel was properly served with a copy of the petition on June 22, 1973, and that both counsel and the trial judge had copies of all of the pertinent papers before them during the November 5th hearing. After this had been established by the trial judge, he overruled the objection and proceeded with the hearing. Our research has not disclosed a case in which the precise question has been presented. There are analogous cases, however, holding that a court can take judicial notice of its own orders, a violation of which was the basis for contempt proceedings, and that therefore formal proof of that order was not required. In Schwartz v. United States, 217 F. 866, 870 (4th Cir. 1914) the Court said:

'There is authority for the proposition that the criminal contempt is so far distinct from the original civil proceedings that the order of injunction must be formally introduced. State v. Hudson County Electric Co., 61 N.J.L. 114, 38 A. 818. But we think this rule too technical. The better view is that, as one proceeding grows out of the other and is collateral to it, the court will take judicial notice in the trial of the latter of all orders made in the former. State v. Jones, 20 Wash. 576, 56 P. 369; State v. Thomas, 74 Kan. 360, 86 P. 499; State v. Porter, 76 Kan. 411, 91 P. 1073, 13 L.R.A. (N.S.) 462; Haaren v. Mould, 144 Iowa 296, 122 N.W. 921, 24 L.R.A. (N.S.) 404.'

See also Bailey v. Superior Court, 142 Cal.App.2d 47, 297 P.2d 795, 800 (3d Dist. 1956); Young v. Commonwealth, 194 Va. 780, 72 S.E.2d 479, 481 (1953); Mattos v. Superior Court, 30 Cal.App.2d 641, 86 P.2d 1056, 1059 (1939); Haaren v. Mould, 144 Iowa 296, 122 N.W. 921, 923 (1909); Ex parte Ah Men, 77 Cal. 198, 19 P. 380, 381 (1888).

9 J. Wigmore, Evidence § 2579 (3d ed. 1940) states the rule as follows:

'However, for reasons of convenience, where controversy is unlikely and the expense of a copy would be disproportionate, Courts are often found taking notice of the tenor or effect of some part of a judicial proceeding, without requiring formal evidence. Since this dispensation is not obligatory on the part of the Court, and since it must depend more or less on the practical notoriety and certainty of the fact under the circumstances of each case, little uniformity can be seen in the instances. It is often done for a part of the record in the same proceeding, or in a prior stage of the same controversy; less often for the record of a distinct litigation, especially when in another Court.'

Charles T. McCormick in an exhaustive analysis of this area regarded it to be settled that courts trial and appellate, may take judicial notice of '. . . their own respective records in the present litigation, both as to matters occurring in the immediate trial, and in previous trials or hearings.' C. McCormick, Judicial Notice, 5 Vand.L.Rev. 296, 311 (1952).

These authorities seem not to be at variance with general statements from the Court of Appeals of Maryland, LeBrun v. Marcey, 199 Md. 223, 228, 86 A.2d 512, 515 (1952):

'We may, however, repeat that this court takes judicial notice of its own records. Fletcher v Flournoy, 198 Md. 53, 81 A.2d 232. The lower court, therefore, may and should take judicial notice of the record in this court of a case in that court.'

In Fletcher v. Flournoy, 198 Md. 53, 60-61, 81 A.2d 232, 235 (1951), cert. denied, 343 U.S. 917, 72 S.Ct. 649, 96 L.Ed. 1331, the Court said:

'. . . the United States Court of Appeals for the Fourth Circuit quoted and followed a statement in its opinion by Judge Soper in Morse v. Lewis, 4 Cir., 54 F.2d 1027, 1029, 'The general rule undoubtedly is that a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties, and in the same court, unless the proceedings are put in evidence; and the rule is sometimes enforced with considerable strictness. * * * But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the courts, in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation.' In the instant case, the demands of justice do not suggest an exception to settled rules. Rule 2 itself provides a simple and inexpensive way to present such records in the form of 'sworn, or certified or photostatic copies' attached to or filed with an affidavit. This court, like the Supreme Court (DeBearn v. Safe Deposit and Trust Company, 233 U.S. 24, 32, 34 S.Ct. 584, 58 L.Ed. 833), takes judicial notice of its own records, in the instant case as in other cases. Christopher v. Sisk, 133 Md. 48, 50, 104 A. 355; Snodgrass v. Stubbs, 192 Md. 287, 292, 64 A.2d 130, 133. As to trial courts, the general rule stated by Judge Soper is law in Maryland.'

See also Matthews v. Matthews, 112 Md. 582, 589, 77 A. 249 (1910). In view of the authorities cited above and their sound reasoning, we hold that, though not the favored practice, it was not error for the trial judge to proceed in the instant case with the hearing based upon copies which satisfied him as to their authenticity, albeit without formal proof thereof, and in the absence of any contention that the copies before the court were inaccurate.

It is not contended that the lower court lacked jurisdiction because the appeal from the divorce decree was pending; however, we will briefly discuss this question. Finding changed circumstances, Judge Turnbull modified the divorce decree by altering the amount of the support payments for the children. The cases have held that the trial court can modify the alimony payment provisions of a divorce decree with respect to matters which arise after the passage of the decree and while an appeal therefrom is pending. Horntein v. Hornstein, 195 Md. 627, 638, 75 A.2d 103 (1950); Berman v. Berman, 191 Md. 699, 706, 62 A.2d 787 (1948); Rohrback v. Rohrback, 75 Md. 317, 319, 23 A. 610 (1892); Annot., 19 A.L.R.2d at 717. It would seem by analogy that the trial court would have the power, pending an appeal, to modify the support payment provisions of a divorce decree in the event of changed circumstances which arise subsequent to the original decree. See Lewis v. Lewis, 219 Md. 313, 316, 149 A.2d 403 (1959); Chappell v. Chappell, 86 Md. 532, 541-542, 39 A. 984 (1898), cert. denied, 165 U.S. 720, 17 S.Ct. 992, 41 L.Ed. 1185; Annot., 163 A.L.R. 1319 (1946).

It is apparent that the adjudication for contempt was in support of the divorce decree, and operating as an enforcement of the prior decree; thus there is no jurisdictional infirmity. See Md.Rule 685 a; § 1-202(a) of The Courts Article. See generally State v. Roll & Scholl, 267 Md. 714, 728, 298 A.2d 867 (1973); Gatuso v. Gatuso, 16 Md.App. 632, 636, 299 A.2d 113 (1973); Annot., 19 A.L.R.2d at 709.

II Contempt

Mrs. Garland's 'Petition for Contempt Citation and Modification of Decree' alleged that Mr. Garland was in contempt because he failed to make two alimony and support payments, in accordance with the terms of the divorce decree of May 16, 1973, and for his interference with the right of the wife to collect her one-half of the joint savings & loan account awarded to her by that decree. The trial judge found appellant in contempt on both grounds. Mr. Garland alleges that he was denied due process because the court considered his failure to make payments subsequent to the date the petition was filed. He contends specifically that he was denied due process because he had no notice that the court would consider, in the proceedings, his failure to make payments after the...