Glass v. Glass

Citation284 Md. 169,395 A.2d 485
Decision Date20 December 1978
Docket NumberNo. 9,9
PartiesCatherine A. GLASS v. Kenneth E. GLASS.
CourtCourt of Appeals of Maryland

Wallace Dann, Towson, for appellant.

Mary S. Elcano, Baltimore (Eric Peltosalo, John C. Eidleman, Annapolis, and Richard F. Pecora, Baltimore, on the brief), for Legal Aid Bureau, Inc., amicus curiae.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

DIGGES, Judge.

We granted certiorari in this divorce action to determine whether the Court of Special Appeals was correct in concluding that it was reversible error to proceed against a member of the armed forces of the United States as a defaulting defendant without appointing counsel to represent him under the provisions of the federal Soldiers' and Sailors' Civil Relief Act. 50 U.S.C.App. § 520(1) (1970). Because an examination of the circuit court proceedings in this case reveals that following service of process on the husband-defendant there was neither the filing of an initial pleading by him, Maryland Rule 307, nor the entry of a decree pro confesso, Rules S73 and 310 b, either of which was required before the trial court was authorized to sign a final divorce decree, we will direct a vacation of the decree entered here without considering the import of the Civil Relief Act.

What happened may be briefly stated. On October 29, 1976, petitioner Catherine A. Glass, claiming she was abandoned and deserted by her husband, filed a complaint in the Circuit Court for Anne Arundel County seeking an a vinculo matrimonii divorce or, in the alternative, one a mensa et thoro from respondent Kenneth E. Glass. The bill of complaint, with its accompanying interrogatories, was served on the husband on November 8, 1976. When Mr. Glass did not file an answer or other responsive pleading to the command of either the subpoena or the interrogatories, his wife filed a "Petition for Hearing" alleging that, although the respondent was "a member of the United States Army," he was "well able to conduct a defense of this cause of action" and requested that the court set a date for a hearing on the matters raised by the complaint. 1 On January 28, 1977, the circuit court set a hearing on all "open matters" in the case for April 14 of that year at 1:30 p. m. In the interval, specifically on March 3, the wife, because of the respondent's failure to answer the interrogatories, filed a motion for sanctions pursuant to Rule 422 c by which she sought a decree pro confesso and other relief. Although served on March 10 with a copy of this motion, the husband made no response to it. At the hearing conducted on April 14, without the husband being present either in person or through counsel, the trial judge announced at the conclusion of the testimony produced by the wife that "Mrs. Glass is entitled to a decree pro confesso and a final decree and (I) will sign the decree as of this date." 2 Following this statement, but without a decree pro confesso being entered, the trial judge proceeded to sign a final decree that, in addition to granting Mrs. Glass an a mensa et thoro divorce and an award of $200 per month as permanent alimony, also provided that she alone owned certain enumerated personal property, and directed that the husband pay the costs of the proceedings as well as $750 compensation to the wife's attorney. The husband noted a timely appeal from that decree.

Initially we mention "that In equity the pleadings and definitive actions of the Chancellor Must be done by Written documents duly filed in the equity case," Eggert v. Montgomery Co. Council, 263 Md. 243, 246, 282 A.2d 474, 476 (1971) (emphasis in original); Accord, e. g., Tvardek v. Tvardek,257 Md. 88, 99, 261 A.2d 762, 768 (1970); Sellman v. Sellman,238 Md. 615, 618, 209 A.2d 61, 62 (1965) (per curiam); E. Miller, Equity Procedure § 284, at 354 (1897), and, therefore, the court's announcement here that the wife was entitled to a decree pro confesso was not such a decree because it did not conform with the well-established equity practice in this State. Thus, no decree pro confesso was ever entered in this divorce action.

The Maryland Rules of Procedure that require, before proceeding upon default, the entry of a decree pro confesso, E. g., Rules S73, 310 b, 422 b and c, 611, 675, as well, as their statutory predecessors, are based on chapter 161 of the Acts of 1820. The object of these rules is

to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which plaintiffs were subjected by defendants disobeying the mandates of the court requiring them to appear and answer bills filed against them. The design was, in the event of the defendant's continuing disobedience to the order of the court, to give to the plaintiff a remedy against him, as nearly as may be, as expeditious and effectual as if an appearance and answer had in due time followed the order of the court. The (rules are) a means of relief against the delay and neglect of defendants. (E. Miller, Supra, § 272, at 338-39 (footnotes omitted).)

Thus, a decree pro confesso is a tool by which in default of appearance or in default of answer, plea, or demurrer after appearance, a plaintiff, within the time allowed, is enabled to proceed ex parte against a neglectful defendant.

Rule S73 governs defaults by the defendant in divorce...

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9 cases
  • Peay v. Barnett
    • United States
    • Court of Special Appeals of Maryland
    • March 29, 2018
    ...and neglect of defendants." See Smith–Myers Corp. v. Sherill , 209 Md. App. 494, 508, 60 A.3d 90 (2013) (quoting Glass v. Glass , 284 Md. 169, 172, 395 A.2d 485 (1978) ); see also Md. Rule 2–613. The Rule provides the circuit court with broad discretion to vacate an order of default before ......
  • Smith–Myers Corp. v. Sherill
    • United States
    • Court of Special Appeals of Maryland
    • January 24, 2013
    ...374, 539 A.2d 1127 (1988). “ ‘[These rules are] a means of relief against the delay and neglect of defendants.’ ” Glass v. Glass, 284 Md. 169, 172, 395 A.2d 485 (1978), superseded by statute as noted in Davis v. Davis, 97 Md.App. 1, 12–13, 627 A.2d 17 (1993) (quoting Edgar Miller, Equity Pr......
  • Berrain v. Katzen, 147
    • United States
    • Maryland Court of Appeals
    • September 1, 1992
    ...322 Md. 154, 163, 586 A.2d 25, 29 (1991); Adams v. Mallory, 308 Md. 453, 460-61, 520 A.2d 371, 375 (1987); Glass v. Glass, 284 Md. 169, 170-72, 395 A.2d 485, 486-87 (1978). The question remains, however, whether such sanctions were appropriate in the instant case where the infant plaintiffs......
  • Davis v. Davis
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...was a long-standing requirement in Maryland that decrees in equity be in writing, and signed by the Chancellor. See Glass v. Glass, 284 Md. 169, 171, 395 A.2d 485 (1978); Eggert v. Montgomery County Council, 263 Md. 243, 246-47, 282 A.2d 474 (1971); Tvardek v. Tvardek, 257 Md. 88, 99, 261 A......
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