Miller v. Miller

• Citation: 519 A.2d 1298,70 Md.App. 1
• Decision Date: 01 September 1986
• Docket Number: No. 406,406
• Parties: James Arthur MILLER v. Joan Wood MILLER ,
• Court: Court of Special Appeals of Maryland

Page 1

70 Md.App. 1

519 A.2d 1298

James Arthur MILLER v. Joan Wood MILLER

No. 406, Sept. Term, 1986.

Court of Special Appeals of Maryland.

Jan. 16, 1987.

Joseph C. Ruddy, Jr., Hyattsville, for appellant.

James W. Almand (Ayres, Jenkins, Gordy & Almand, P.A., on the brief), Ocean City, for appellee.

Argued before BLOOM, ROBERT M. BELL and WENNER, JJ.

ROBERT M. BELL, Judge.

In 1969, after nearly 11 years of marriage, Joan Wood Miller (wife), appellee/cross-appellant, filed an action in the Circuit Court for Prince George's County for a divorce a mensa et thoro from James Arthur Miller (husband), appellant/cross-appellee. She alleged constructive desertion. The court denied the divorce; however, on October 29, 1970, it awarded the wife custody of the parties' four minor children who then resided with her. The husband was ordered to pay $250.00 per month in child support. This amount was not broken down on a per child basis. The husband did not make the payments when due.

Prior to 1973, the wife initiated at least one contempt action against the husband, alleging his failure to comply with the child support order. In 1973, she initiated a criminal non-support action in Prince George's County. The husband was found not guilty. Thereafter, no further attempts were made in Prince George's County to enforce the child support order. Consequently, the amount of the arrears, at the time of the present action, had not been determined by any Court.

In August, 1984, the wife filed in the Circuit Court for Worcester County a bill of complaint for a divorce a vinculo matrimonii, in which she also sought alimony, child support arrearages, distribution of marital property, and a monetary award. At that time, all of the children, with the exception of the youngest child, were over 21 years of age. The youngest child was 18 years old as of April 18, 1984.

When the husband did not file an answer to the bill of complaint, the wife moved for a default judgment on February 6, 1985, and a copy of the motion was forwarded to the husband. The court entered the order of default on February 13, 1985, and the husband was notified of the court's action. The husband, on March 19, 1985 ¹ filed a Motion To Strike Or Vacate An Order of Default. Following the filing of the wife's opposition and a hearing, held on April 15, 1985, the court denied the husband's motion as to the grounds for divorce, but allowed all other contested matters to be litigated at trial. The husband did not thereafter file an answer or other pleadings denominating and crystalizing the issues he proposed to raise and/or litigate.

Testimony was taken and arguments heard on September 24, 1985. Following receipt of memoranda from counsel concerning the issues raised at trial, the trial judge issued an Opinion and Decree on January 2, 1986. He ruled that: (1) the Marital Property Act did not apply; (2) the wife be granted an absolute divorce; (3) a sale in lieu of partition of the marital home located in Prince George's County be ordered; (4) the husband's request for contribution from the wife for principal, interest, taxes, and insurance payments made by the husband during the separation be denied; (5) the wife was entitled to a judgment for child support arrearages; (6) child support payments were to be paid by the husband until the youngest child reached the age of 21; and (7) the husband pay all of the wife's counsel fees and the costs of the suit. Both parties appealed from the judgment thus entered, raising, between them, seven issues:

1. Whether the trial court erred in refusing to vacate a default judgment while simultaneously fashioning a bifurcated implementation of the judgment that is without precedent in either rule or law, and, as such, constituted an abuse of discretion that denied the appellant an opportunity to plead a legitimate grounds for divorce that would serve as a substantial and sufficient basis for an actual controversy as to the merits of the action.

2. Whether the trial court's refusal to vacate default judgment constituted an abuse of discretion that denied the appellant the right to challenge the venue of the court as to the sale in lieu of partition of the property of the parties, and as to child support arrearages.

3. Whether the trial court erred by ordering the appellant to pay child support payments beyond the age of majority when the appellee never pleaded before the court the issue of continued lump sum child support payments.

4. Whether the trial court erred in denying the appellant's request for contribution from the appellee for payments previously rendered by the appellant for principal, interest, taxes and insurance on the marital abode of the parties.

5. Whether the trial court's order directing the appellant to pay all of the appellee's counsel fees and costs of suit constituted an abuse of discretion.

6. Whether the trial court erred in limiting the judgment for child support arrearages to a period commencing one year prior to the filing of appellee's complaint.

7. Whether the trial court erred in ruling that the Marital Property Act was not applicable to the case.

Although we find no error in the court's ruling on the default judgment, we hold that the Marital Property Act does apply to this case. This necessitates that we discuss, for the guidance of the trial court on remand, the issues relative to the award of counsel fees and the costs of suit, the age of majority of the minor children, contribution, and the period of limitations for the recovery of child support arrearages.

Default Judgment

Although the default judgment was entered by the court on February 13, 1985, the husband's motion to strike or vacate was not filed until March 19, 1985, 34 days later. In the motion, the husband proffered the existence of grounds, ² i.e., desertion and abandonment on the part of the wife, which would entitle him to a divorce. He also proffered that, were the default judgment stricken, he would allege these grounds in an answer which he would then file. Furthermore, the husband proffered that if permitted, he would move to strike the wife's pleadings or, in the alternative, move for a change of venue because prosecution of the case in Worcester County "represents bad faith or unjustified proceedings." Thus, asserting that he had a meritorious defense, he prayed that the default judgment be vacated or rescinded and the issues joined for trial.

Citing its untimely filing, the wife moved to strike the husband's motion, to which the husband responded by filing Defendant's Opposition To Plaintiff's Motion To Strike and/or Motion To Extend Time For Filing Defendant's Response To Order Of Default. Although admitting that his motion was untimely filed, ³ and acknowledging that the motion to extend time was filed after expiration of the specified time, the husband urged that the court nevertheless consider the motion because "the failure to file ... was due to excusable neglect" pursuant to Maryland Rule 1- 204(a)(3). ⁴ The wife's motion to strike was denied because although "[the husband's motion] was two or three days late", the court felt that:

"... the Motion to Vacate should be considered by the Court. In order to consider the Motion to Vacate, I have got to rule against the Motion to Strike.... On procedural grounds, I am not going to kick the defendant out of court, so to speak, on the issue, because his counsel was two or three days late.

After conducting a hearing on the Motion to Vacate, the court denied the motion as to the grounds for divorce. It reasoned that the husband's failure to answer was an admission that an involuntary separation did occur on May 1, 1969, and continued to the date of the hearing. On the other hand, it specifically determined that the husband was entitled to oppose the relief requested by the wife; thus, the court ruled that all issues, other than grounds for divorce, would be litigated at trial.

The husband urges that this approach was error since his motion clearly delineated, and the trial court's decision confirms, that he too had grounds for divorce. And, he says, his grounds were an absolute defense to the wife's grounds. The husband also complains that Worcester County was not the proper venue in which to try this divorce action, particularly those aspects of it relating to child support arrearages. Finally, the husband argues that the trial judge abused his discretion when he refused to find an agreement between counsel to the effect that the husband's counsel would be given ten (10) days notice before the wife's counsel filed a motion for default judgment.

Maryland Rule 2-613 permits the entry of a default judgment against a party when that party has failed to plead "as provided by these rules" and "notice informing the defendant that the order of default has been entered and that the defendant may move to vacate the order within 30 days after its entry" has been mailed to the defendant or his counsel of record. Rule 2-613(a) and (b). The party against whom an order of default has been entered "may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim." Rule 2-613(c).

"If a motion was not filed under section (c) of this Rule or was filed and denied, the court, upon request, may enter a judgment by default if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (b) of this Rule was mailed. If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings, or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury."

Rule...