Schneider v. Schneider

• Decision Date: 11 March 1977
• Docket Number: No. 524,524
• Citation: 35 Md.App. 230,370 A.2d 151
• Parties: Kyong Sun SCHNEIDER v. Karl SCHNEIDER.
• Court: Court of Special Appeals of Maryland

Page 230

35 Md.App. 230

370 A.2d 151

Kyong Sun SCHNEIDER v. Karl SCHNEIDER.

No. 524.

Court of Special Appeals of Maryland.

March 11, 1977.

Wallace Dann, Baltimore, with whom were Bregel & Bregel, Chartered, Baltimore, on the brief, for appellant.

Mark J. Hardcastle, Baltimore, with whom were Thomas G. Gray, Baltimore, Cornelius F. Sybert, Jr., and Sybert, Sybert & Nippard, Ellicott City, on the brief, for appellee.

Argued before MOYLAN, MENCHINE and MOORE, JJ.

MOORE, Judge.

Almost six years ago, the parties to this appeal were divorced a vinculo matrimonii on grounds of voluntary separation. More than three years after the date of the decree, the appellant-wife filed a motion to set it aside on grounds of fraud. The chancellor (Childs, J.) denied the motion, holding that an attempt to reopen the decree by petition, rather than by original bill, was improper; and finding in effect that the appellant-wife had not made an appropriate showing of fraud. We affirm on the latter ground, although it is our conclusion that appellant's motion, under Maryland Rule 625 a., was proper.

I

Appellant, Kyong Sun Schneider, a citizen of Korea, and appellee, Karl Schneider, a native Marylander, were married in Baltimore City on December 27, 1968, in a church ceremony. Appellant had come to the United States as a 'war bride' and had been divorced from her first husband. After she and appellee had been married less than a year, they entered into a separation agreement on September 2, 1969, wherein he agreed to pay her $15,000 in cash in consideration of which she waived alimony. Although the agreement recited that they had mutually agreed to live apart without cohabitation as of the date of the signing of the agreement, the wife did not leave the marital residence for several days. Thereafter she returned to the marital abode from time to time for significant periods of time and the parties engaged in sexual relations on such occasions. Eventually, according to the appellee's testimony, he engaged his former wife as a housekeeper in the matrimonial residence upon payment to her of $100 a week. The appellant contended, on the other hand, that she was not a hired housekeeper and that appellee maintained and supported her as his wife.

Coincident with his termination of this arrangement-whatever it may have been- and on or about September 16, 1974, appellant filed a motion to set aside the final decree of divorce dated May 19, 1971. The gravamen of the motion was that the testimony on which the decree was granted was false. Included among the appellant's allegations were the following:

'The defendant is a citizen of the Republic of Korea and a permanent resident of the United States. She does not read or write the English language and is unfamiliar with local legal customs and procedures. She was aware that something in the nature of a divorce proceeding was progressing, but she believed her husband who fraudulently told her that the proceeding was not going to forever dissolve the bonds of matrimony between them. Plaintiff further told defendant that he wanted her to continue to live with him and that upon his death she would inherit all of his real and personal property.'

Elsewhere in the motion, appellant claimed that there was never any actual separation between the parties and that from May, 1971 until July, 1974, when appellee filed eviction proceedings against her, appellee supported her and held her out as his wife; and that testimony given by appellee and his witness before the Master with respect to their being separated was false. The motion concluded with a prayer that the decree of divorce be set aside 'because of a lack of grounds for granting such divorce.' The appellee by his answer to the motion specifically denied the wife's allegations and averred that she had accepted the lump sum cash settlement of $15,000 in 1969, and that such continued cohabitation as took place was subsequent to the dete of the divorce decree.

A hearing on the petition and answer was held before Judge T. Hunt Mayfield in June, 1975 and the matter was taken under advisement. Prior to disposition of the case, Judge Mayfield retired and the parties then elected to submit on the existing record rather than have the cause set in for rehearing.

After consideration of the pleadings and the testimony taken before Judge Mayfield, the chancellor ruled on the authority of Gray v. Gray, 245 Md. 713, 228 A.2d 441 (1967):

'. . . the movant has alleged fraud but has attempted to reopen the decree by petition and not by an original bill. The instant petition does not fall within the ambit of either of the two recognized exceptions to the rule allowing an enrolled decree to be attacked by petition.'

The chancellor also made the following finding:

'The court finds that the movant had the benefit of both notice of the hearing before Master Cicone and representation by her counsel, Mr. Pusey, at that hearing. Movant had the opportunity to attend the hearing but chose not to attend.'

Dismissing the petition, the court also ordered that the transcript be referred to the State's Attorney for Howard County, 'for any action he may deem appropriate.'

II

Contrary to the holding of the chancellor, we conclude that there was no procedural defect in the proceedings below. We recognize that the earlier cases and older treatises abound with pronouncements that generally enrolled decrees may be reopened or set aside only upon the filing of a bill of review for patent error on the face of the decree or upon the filing of an original bill for fraud. See, e.g. E. Miller, Equity Procedure §§ 293-300 (1897); Pugh v. Waclawski, 211 Md. 346, 350, 127 A.2d 376, 379 (1959); Vierling v. Holt, 197 Md. 522, 525, 80 A.2d 24, 26 (1951); Tabeling v. Tabeling, 157 Md. 429, 146 A. 389 (1929); Pressler v. Pressler, 134 Md. 243, 245, 106 A. 686, 687 (1919); Whitlock Cordage Co. v. Hine, 125 Md. 96, 102, 93 A. 431, 433 (1915). See also Gray v. Gray, supra.

In Tebeling, supra, Judge Sloan cited Whitlock Cordage Co. v. Hine, supra, and quoted from the opinion therein by Chief Judge Boyd, who stated for the court:

'It must be confessed that it is not always easy to determine under the authorities when a petition to rescind an order or set aside a decree, which has become enrolled, should be entertained. The general rule undoubtedly is that a decree or a decretal order, after enrollment, can be revised or annulled only by a bill of review or original bill, and not by a petition, but there are exceptions to the rule, equally well established as the rule itself, which are generally classified as follows: (1) In cases not heard upon the merits. (2) Where the circumstances are such as to satisfy the court that the decree should be set aside, and (3) where the decree was entered by mistake or surprise.' (Emphasis added.) 157 Md. at 433, 146 A. at 391, quoting, 125 Md. at 102, 93 A. at 433. ¹

In the instant case, the chancellor relied upon similar language in a per curiam opinion of the Court of Appeals in Gray v. Gray, supra, where a former husband filed a petition to set aside a decree of divorce entered some seven years previously, and quoted the following language from that opinion:

'Rule 671 a provides: 'A final decree, . . . shall be considered as enrolled from and after the expiration of thirty days from date of same.' The court's revisory power over an enrolled decree is limited to cases of 'fraud, mistake, or irregularity.' Rule 625 a. It is settled Maryland law once a decree has been enrolled it may be reopened or set saide only upon a bill of review for error patent upon the face of the decree, or upon the allegation of newly discovered evidence, or upon the filing of an original bill for fraud. Here the appellant has alleged fraud but has attempted to reopen the decree by petition and not by an original bill.

However, there are two recognized exceptions to the above stated rule which allow an enrolled decree to be attacked by petition. The first is where there is a showing that the decree was entered by surprise or mistake; the second is where the circumstances warrant the court to use its sound discretion and set aside the decree; however, these exceptions are only applicable if the case, in which the decree was rendered, was not heard upon its merits. Pinkston v. Swift, 231 Md. 346, 351, 190 A.2d 533, 536 (1963); Cramer, Trustees v. Wildwood Co., 227 Md. 102, 107, 175 A.2d 750, 753 (1961); Kennard v. McKamer Realty Co., 224 Md. 490, 496, 168 A.2d 369, 372 (1961).

'At bar the original divorce proceeding was heard upon the merits at which appellant was represented by counsel; thus the two exceptions to the general rule discussed above will not better the appellant's position.' ² (Emphasis added.) 245 Md. at 715-16, 228 A.2d at 443.

The Gray case was decided by the court some ten years after the adoption by the court in 1956 of Mayland Rule 625 which became effective January 1, 1957. The rule provides in part:

'a. Generally.

For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.' (Emphasis added.)

As the Court of Appeals made abundantly clear in Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A.2d 837 (1975), there is no distinction to be made between law and equity in the application of Maryland Rule 625 a. and, after the expiration of thirty days from the entry of a judgment, a court has revisory power and control only in case of fraud, mistake or irregularity; there being no exception for equity cases not heard upon their merits. ³ The court in Hughes did not have occasion to consider the question presented here, i. e., whether the issue of frand, mistake or irregularity under Rule...