Rand v. Rand

• Decision Date: 05 November 1976
• Docket Number: No. 59,59
• Citation: 365 A.2d 586,33 Md.App. 527
• Parties: Florence Mitchell RAND v. Robert C. RAND.
• Court: Court of Special Appeals of Maryland

Page 527

33 Md.App. 527

365 A.2d 586

Florence Mitchell RAND v. Robert C. RAND.

No. 59.

Court of Special Appeals of Maryland.

Nov. 5, 1976.

Certiorari Granted Dec. 30, 1976.

John T. Bell, Rockville, with whom were Frank S. Cornelius, Elbert R. Shore, Jr. and Bell & Cornelius, Rockville, on the brief, for appellant-cross-appellee.

Allen J. Katz and George W. Young, Jr., Gaithersburg, for appellee-cross-appellant.

Argued before THOMPSON, MENCHINE and MELVIN, JJ.

MENCHINE, Judge.

A decree passed by the Circuit Court for Montgomery County on March 17, 1971, inter alia, required Robert C. Rand (Robert) to pay $250.00 monthly for the support and maintenance of a minor child, Virginia Rand (Virginia) and to pay $75.00 monthly as alimony to Florence Rand (Florence). ¹

On August 7, 1975, Florence filed a petition to increase child support. On September 11, 1975, Robert filed a petition for modification of alimony. The petitions were referred to a Domestic Relations Master pursuant to Sixth Circuit Rule S74.b. (ii). ²

The petitions were consolidated and heard together by the Master on October 27, 1975. The Master's report detailed his findings of fact and recommended that the court pass an order: (a) requiring Robert to pay $480.00 monthly for the support and maintenance of the minor child of the parties and (b) terminating the payment of alimony by Robert to Florence subject to reconsideration upon future showing of need and a substantial change of the financial circumstances of the parties. ³ Exceptions to the Master's report were filed by both Florence and Robert. Both sought further hearing in the Circuit Court for Montgomery County.

On December 9, 1975, the chancellor passed the following order:

'The Court has read and considered the plaintiff's and defendant's Exceptions to the Report of the Domestic Relations Master. The Court has further considered the report itself with accompanying exhibits and has generally reviewed the two files. Exceptions to the findings of a Master will not be sustained except in the case of clear error or unless he misapplies the law.

'Exceptions to a report of an auditor or Master will not be sustained unless his findings of fact from the evidence are clearly erroneous or unless he misapplies the law in his findings of fact.' Bris Realty Co. vs. Phoenix Savings and Loan Association, 238 Md. 84 (208 A.2d 68).

'A Masters finding of fact from the evidence are prima facie correct and they are not to be disturbed unless determined to be clearly erroneous.' Bar Association vs. Marshall, 269 Md. 510 (307 A.2d 677).

'The Court finds no clear error or misapplication of the law in this case and it is therefore, this 9th Day of December, 1975, by the Circuit Court for Montgomery County, Maryland,

'ORDERED that the Exceptions filed by the plaintiff and defendant are hereby overruled and that the request for a hearing in open court is denied and it is further

'ORDERED that the defendant's counsel promptly prepare an Order in accordance with the findings of the Domestic Relations Master.'

A subsequent order of the Circuit Court for Montgomery County passed on January 6, 1976, reads as follows:

'ADJUDGED, ORDERED and DECREED, that the Plaintiff, Robert Collom Rand, pay to the Defendant, Florence Mitchell Rand, for support and maintenance of the minor child of the parties, namely, Virginia Rand, the sum of Four Hundred Eighty Dollars ($480.00) per month, commencing and accounting from September 1, 1975, and a like sum on the first day of each succeeding month, pending further order of this Court; and, it is, further,

'ORDERED, that the payment of alimony by the Plaintiff to Defendant shall be, and the same is hereby, terminated; however, the Court shall retain continuing jurisdiction for reconsideration thereof upon showing of a need and a substantial change in the financial circumstances of the parties, and it is, further

'ORDERED, that in all other respects the Decretal Order of March 17, 1971, will remain in full force and effect, except as hereby provided for and modified.'

Both Florence and Robert have appealed. Both attack the chancellor's refusal to grant a hearing in the circuit court.

Rejection of Requested Hearing

Sixth Circuit Rule S74.f.4. reads as follows:

'HEARING BEFORE THE COURT. Upon the filing of exceptions pursuant to this section, the proceedings shall be referred to the Court. The Court shall then rule upon the exceptions on the record, unless it shall determine that a hearing is required, in which event the Court shall refer the proceedings and the exceptions to the Assignment Office for the scheduling of a hearing on the exceptions and the notification of counsel.'

Florence's initial attack is more basic than Robert's. Pointing out that Maryland Rule 1.f.1. prohibits local rules that are inconsistent with the Maryland Rules, she contends that Sixth Circuit Rule S74.f.4. is in conflict with Maryland Rule 321.d. Maryland Rule 321.d reads as follows:

'd. Disposition.

The court may decide demurrers and motions (except motions for a new trial or for judgment n. o. v.) without a hearing unless a party requests a hearing at the time or within fifteen days after the demurrer, motion or reply is filed. A request for hearing shall be in writing and may be either in a separate peading, or incorporated in the body of the demurrer, motion or reply at the end thereof under an appropriate heading.' (Emphasis added.)

The issue, in short, raised in the first prong of Florence's attack, requires determination as to whether Rule 321.d was intended to encompass exceptions to the report of a Master and thus to confer a right to a court hearing upon timely application therefor. We think that it was not.

The antiquity of the office of Master is the subject of lengthy explication in Townshend v. Duncan, 2 Bland 45 (1828), in the course of which it was said at 55-57:

'In England, the officers called masters in Chancery are assistants and associates to the Chancellor; and two of them at a time, by turns, usually sit with him in Court. They have the power to administer oaths, take affidavits, and acknowledgments of deeds, recognizances, &c. 1 Harri.Prac.Chan. 73. It is the duty of a master to execute the orders of the Court upon references made to him by it, acting either in exercise of its original jurisdiction, or under the authority of any Act of Parliament. The heads of reference that may be made to a master are almost as numerous as the matters subject to the jurisdiction of the Court.

'In general, there is no question of law or equity, or disputed fact, respecting which a master may not be called upon to make a report, . . ..

'If, however, a master is directed to ascertain a particular fact, he ought himself to draw the conclusion from the evidence before him, and not merely to state the circumstances. Lee v. Willock, Ves. 605.'

In Miller, Equity Procedure (1897) § 555, page 653, it is said:

"A master in chancery is an officer of the court who acts as an assistant to the chancellor. . . . In Maryland the office at one period existed under the inherent jurisdiction of the court of chancery, independently of statute. Masters may now also be appointed under the constitutional provision that 'the judge or judges of any court may appoint such officers for their respective courts as may be necessary."'

The nature and effect of the report of a Master was succinctly stated by Judge J. Dudley Digges, speaking for the Court of Appeals, in Bar Assn. v. Marshall, 269 Md. 510, 516, 307 A.2d 677, 680 (1973):

'Previous opinions of this Court have discussed the importance to be attached to the findings of fact in a master's report by the ultimate trier of fact. In those cases we have said that although the report is only advisory, the court should give full consideration to it, particularly with respect to the credibility of witnesses, where the testimony is conflicting. And, the master's findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous.'

The contention that exceptants to the report of a Master have a per se right to present evidence de novo to the court by reason thereof was considered and rejected in Bris Realty v. Phoenix Svgs. & Loan Assn., 238 Md. 84, at 88 et seq., 208 A.2d 68, 69 (1965), wherein it was said:

'(I). The refusal of the chancellor to permit the appellants to take testimony before him on the exceptions. The record shows that the exceptions, as filed by the appellants to the special master's report, were general in form and failed to point out any finding of fact not supported by the testimony before the master, or any law misapplied by him to such facts in arriving at his allowance or disallowance of the respective claims.

'The appellants take the position that as to matters contained in those parts or paragraphs of the master's report to which they have generally excepted, they had the right to present testimony before the court de novo, citing Egerton v. Reilly, 1 Gill & J. 385 and Worthington v. Hiss, 70 Md. 172, 16 A. 534, 17 A. 1026, as authority. These to cases furnish no such authority. In Egerton, this Court merely held that the lower court erred in referring a matter to an auditor before preliminary pleadings had brought the case to issue; and in Worthington, the appeal was from a decree remanding a case to an auditor with specific instructions to state an account upon principles laid down in the opinion accompanying the decree. Both sides appealed from the directions given to the auditor and no procedural question with respect to testimony either before the auditor or before the court was raised, and nowhere does it appear that the trial court, in hearing exceptions to the auditor's account before its remand, heard any testimony. The appellants also cite Sewell v. Sewell, 218 Md. 63, 145 A.2d 422, for the proposition that a master is not a judicial officer and therefore the...