Michaels v. Nemethvargo

• Decision Date: 01 September 1989
• Docket Number: No. 1007,1007
• Citation: 571 A.2d 850,82 Md.App. 294
• Parties: , 58 USLW 2597 Lucille MICHAELS, et al. v. Carol Joann NEMETHVARGO. ,
• Court: Court of Special Appeals of Maryland

Page 294

82 Md.App. 294

571 A.2d 850, 58 USLW 2597

Lucille MICHAELS, et al. v. Carol Joann NEMETHVARGO.

No. 1007, Sept. Term, 1989.

Court of Special Appeals of Maryland.

March 30, 1990.

ROSALYN B. BELL, Judge.

The facts before us set out a cause of action for parents who have lost the services of their minor child; the parents also claim a loss of companionship and society. We agree with them that there is a valid claim for the loss of services and necessary expenses, but will leave it to the Legislature to provide parents with a cause of action for the loss of their minor child's society and companionship, if it determines this is advisable.

This appeal arose from a decision of the Circuit Court for Anne Arundel County dismissing the complaint of Lucille and John Michaels, and their 17-year-old son, Anthony (Tony) Michaels. The Michaelses sued Carol Nemethvargo for the loss of Tony's services and companionship as a result of his current imprisonment. In the spring of 1986, Mrs. Nemethvargo employed Tony and three other young men to kill her husband. In return, Mrs. Nemethvargo promised to pay Tony $6,000 for murdering her husband. The plan to kill Mr. Nemethvargo failed and Tony was ultimately tried as an adult and found guilty of attempted first degree murder. He was sentenced to six years imprisonment, while Mrs. Nemethvargo was placed on probation for her role in the plot.

The Michaelses filed suit on July 10, 1987. A summons was issued on July 14, 1987 and served on Mrs. Nemethvargo on September 15, 1987, more than 60 days after the summons was issued. A Motion for Default Judgment was filed on December 11, 1987, after which an Order for Default was filed on December 30, 1987, pursuant to Rule 2-613(a). Mrs. Nemethvargo was sent notice of the default on January 18, 1988. On April 5, 1988, she appeared in court for a damages hearing in the present suit. Damages, however, were never assessed. The following day, the court enjoined the buyers of Mrs. Nemethvargo's house from paying the money directly to her. The order required the proceeds be placed into an escrow account until this suit was resolved.

On May 13, 1988, Mrs. Nemethvargo filed a Motion to Revise Judgment, ¹ alleging that the complaint was served three days after the summons had expired. Despite the title of the motion, there was no default judgment to revise, only an order of default. The Michaelses filed an answer to this motion. On July 5, 1988, the trial court struck the order of default and ordered the dissolution of the injunction.

Nearly nine months later, on March 20, 1989, Mrs. Nemethvargo filed a Motion to Dismiss Complaint and Memorandum, alleging that the Michaelses had no cause of action because her contract with Tony was illegal. At the April 13, 1989 hearing on the motion to dismiss, she also argued that the Worker's Compensation Act invalidated any common law action the Michaelses might have had. ² The trial judge ruled in favor of Mrs. Nemethvargo and dismissed the case. This appeal followed.

On appeal, the Michaelses complain:

-- The trial court erred in striking the default judgment against appellee where the appellee did not file a motion to revise until 38 days after she had personally appeared in court and over 90 days after judgment was enrolled where she offered no reason for the delay and made no showing whatsoever of having acted with due diligence.

-- -- One who contributes to the delinquency of a minor by inducing the minor to enter into an attempted first degree murder is liable in tort to both the minor and the parents.

Appellants, parents of a minor child, have a cause of action where they were deprived of the services of their minor child and lost the child's companionship, and sustained other losses, as a result of appellee's employing the minor child to murder appellee's husband without obtaining the parents' consent to the employment.

We disagree with the Michaelses on their claim that the trial court erred in striking the default judgment. We agree, however, with the Michaelses that there is a cause of action for parents who lose the services of their minor child; consequently, we reverse the trial court's dismissal of their cause of action regarding their minor son's services. In light of the Court of Appeals' recent decision on a related issue, however, we leave the creation of a cause of action for a parent's loss of a child's society and companionship to the Legislature. We also hold that under the facts in this case there is no action for causing the delinquency of a minor.

ORDER OF DEFAULT

Appellants contend that the trial court erred in striking the default judgment against appellee. We disagree.

The flaw in appellants' argument is that the trial court did not strike a default judgment; the court struck an order of default. ³ An order of default is an interlocutory order. As we have previously stated, an "order of default determines liability; the default judgment determines the relief Appellants contend, however, that the court erred in striking the "default judgment" because appellee did not comply with the requirements of Rule 2-535. Rule 2-535 provides in pertinent part:

                granted."  Hanna v. Quartertime Video & Vending Corp., 78 Md.App. 438, 444, 553 A.2d 752, cert. granted, 316 Md. 508, 560 A.2d 41 (1989).   Thus, an order of default, as was granted in the instant case, is not appealable as a final judgment since no final relief has been granted.  Adams v. Mallory, 308 Md. 453, 460, 520 A.2d 371 (1987)
                

"(a) Generally.--On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under rule 2-534.

"(b) Fraud, Mistake, Irregularity.--On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity."

In Hanna, we held that Rule 2-535 ordinarily does not preclude

"the exercise by the court of its discretion to revise any interlocutory order until a final judgment is entered. Where Rule 2-535 does not apply because the judgment is not final, the court may, under its inherent power, control its own judgments until finality."

Hanna, 78 Md.App. at 449, 553 A.2d 752. See also Henley v. Prince George's County, 305 Md. 320, 328, 503 A.2d 1333 (1986). Moreover, in the exercise of that inherent power, a trial judge has broad discretion to modify an interlocutory order where that action is in the best interests of justice. Henley, 305 Md. at 328, 553 A.2d 752.

As there was no final judgment in this case, when the trial judge struck the "judgment of default" (the order of default) on July 5, 1988, the trial court was not constrained by the restrictions of Rule 2-535 in revising the order of default. Therefore, the trial judge was free to dissolve the Since we hold that Rule 2-535 did not apply to the instant case, we need not address appellants' claims that appellee did not comply with its requirements. As explained, the trial court simply exercised its authority over an interlocutory order. Similarly, the issue that there was not defective service of process because appellee voluntarily appeared in court which appellants raise, albeit an interesting one, is moot. Regardless of whether service of process was defective, appellants raised this issue in conjunction with appellee's compliance with Rule 2-535, which we hold does not apply since the disposition was of an interlocutory order and not a final judgment.

                injunction ordering appellee to put the proceeds from the sale of her house into an escrow account.   We find no abuse in the exercise of that discretion
                

APPELLANTS' CAUSE OF ACTION: SERVICES

We turn next to the second challenge, namely whether appellants have a cause of action. Appellants contend that they do have a valid cause of action based on the loss of the services and companionship of their minor child as a result of appellee's employment of said minor child without their consent.

We agree with appellants that they have a valid cause of action for the loss of services of their minor child. Consequently, we reverse the decision of the trial court. But we leave the creation of a cause of action for loss of society and companionship to the Legislature.

--Common Law Right--

Appellants rely on Seglinski v. Baltimore Copper Smelting and Rolling Co., 149 Md. 541, 131 A. 774 (1926), which, they contend, is analogous to the instant case. In Seglinski, the defendant hired the plaintiff's minor son for a non-dangerous job in the copper manufacturing business with the plaintiff's approval. Later, without the plaintiffs' approval, the son's job was changed to one involving danger and the son was injured. The Court of Appeals reversed Appellants also cite several cases from other jurisdictions to bulwark their position. We comment on only two of their cases. To support their argument, they cite Kramer v "The parent can recover for the loss of society of his child and for his emotional distress resulting from its abduction or enticement."

                the trial court's judgment for the defendant and recognized the plaintiffs' cause of action for the loss of the minor son's services.  Seglinski, 149 Md. at 548, 131 A. 774.   According to appellants, the instant case is akin to Seglinski.   They argue that murder-for-hire is a dangerous occupation to which appellants would never have consented had appellee asked them for permission.   We agree that Seglinski is on point 4 regarding Maryland's recognition of the common law parental cause of action for the loss of a minor child's services from hazardous employment without the parents' consent.   Accord, Hudson v. Hudson, 226 Md. 521, 528, 174 A.2d 339 (1961). 5  We hold that appellants have a valid cause of action for loss of services and expenses necessarily flowing from the tort.

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