Davis v. Davis

⁴ BISHOP, Judge. Appellant/Cross-Appellee, Frank Joseph Davis (“Mr. Davis”), filed a Complaint for Limited Divorce in the Circuit Court for Charles County against Appellee/Cross-Appellant, Patricia Lee Davis (“Mrs. Davis”). Mrs. Davis filed a Counterclaim for Absolute Divorce, Alimony, and Other Relief. The court granted Mr. Davis an absolute divorce, awarded Mrs. Davis $30,000, and granted other relief with respect to the Davises’ property.

The Davises filed timely notices of appeal. Issues Mr. Davis raises one issue on appeal: I. Whether the court had jurisdiction over the Davises’ property after the expiration of the ninety-day period following the court’s original order of absolute divorce, which was not extended by consent of the parties. Mrs. Davis, as cross-appellant, raises the following issues: II. Whether the court erred when it allowed the testimony and evidence proffered by Mr. Davis in support of his property claims where an earlier discovery order for sanctions ordered that all such matters were to be taken as established in accordance with Mrs. Davis’s claims.

III

Whether the court erred when it failed to award attorney fees and costs to Mrs. Davis given Mr. Davis’s recalcitrant attitude in failing to comply with discovery requests. Facts The Davises were married on December 14, 1985, and they separated in early 1988. Mr. Davis filed a Complaint for Limited Divorce on July 29, 1988, and Mrs. Davis filed a Counterclaim for Absolute Divorce, Alimony, and Other Relief on August 15, 1988. Along with the counterclaim, Mrs. Davis propounded interrogatories and requested the production of certain documents. ⁵ After the deadline for Mr. Davis’s answers to interrogatories and response to the request for production of documents passed, Mrs. Davis’s counsel made several attempts — on October 31, 1988, December 15, 1988, and March 3, 1989 — to contact Mr. Davis’s counsel.

Those attempts were futile. On April 13, 1989, Mrs. Davis’s counsel filed a motion for sanctions, and, on April 19, 1989, the court ordered that Mr. Davis provide within fifteen days answers to the interrogatories and a response to the request for production of documents. On May 30, 1989, Mrs. Davis filed a second motion for sanctions, in which she alleged that Mr. Davis provided the answers to interrogatories and response to request for production of documents after the expiration of the fifteen day period and that those answers and response did not comply with the Maryland Rules and were otherwise non-responsive, incomplete, and devoid of useful information. Upon consideration of Mrs. Davis’s motion, the court, on June 20, 1989: ADJUDGED, that [Mr. Davis’s] Answers to Interrogatories fail[ed] to adhere to the form prescribed by Rule 2-421(b).

ORDERED, that [Mr. Davis] ... provide complete discovery to [Mrs. Davis] within five (5) days. ORDERED, that matters sought to be discovered by the Interrogatories and Request for Production of Documents be taken as established in accordance with [Mrs. Davis’s] claims. ORDERED, that [Mr. Davis] pay the costs and attorney’s fees incurred in filing th[e second] Motion for Sanctions. On February 28, 1990 (February 27, 1990 according to the docket entry, which appears to be incorrectly dated), Mr. Davis amended his complaint to seek an absolute divorce, and the trial court conducted an evidentiary hearing on the issue of the grounds for divorce.

At the conclusion of the hearing, the following exchange took place: THE COURT: The Court concludes, based on the testimony, that [Mr. Davis] has established grounds to grant to him a divorce absolute on the grounds that the parties have ⁶ lived separate and apart for the statutory period of more than two years. The Court reserves, however, the authority under the statute to make a marital award, if any, after hearing testimony on the property interest of the parties and that the parties will be entitled at that time to present any testimony that they desire to present on the issues or the factors that are to be considered by the Court in reaching a conclusion as to what award, if any, ought to be made. And those factors are listed in the statute, and therefore all parties are entitled to present any evidence they care to on the issues, including the cause of the breakup of the marriage. MR.

MALOOF [MRS. DAVIS’S COUNSEL]: Could we have a time reservation on that? THE COURT: 90 days. MR.

MALOOF: And if we cannot get a date within that period, Your Honor— THE COURT: Then the Court will extend it beyond the 90 days, if need be, but I would suggest — we ought to try to get this settled as soon as possible, so you just inform the assignment office that we need this to be heard within 90 days. MR. MALOOF: Maybe we can go over there from here, Your Honor. THE COURT: Yes.

The docket entry for that date (number sixty-nine) indicates that the court “grant[ed] Absolute Divorce to ... [Mr.] Davis from ... [Mrs.] Davis” and “reserve[d] authority to make marital award for ninety (90) days.” On May 8, 1990, the court conducted a discovery conference, at which the parties attempted unsuccessfully to settle the property dispute. In a letter to the court clerk dated May 25, 1990, Mrs. Davis’s counsel requested that the case be set in for a hearing “as soon as possible.” The letter was filed in the record on May 30, 1990, one day after the expiration of the ninety-day period following the February. 28, 1990 hearing. The clerk set a September 28, 1990 hearing date. On June 11, 1990, the court signed an order which reads: ⁷ This matter having come on for a hearing on the 28th day of February, 1990, and testimony and evidence having been taken herein, it is ...

ORDERED, that the Plaintiff, FRANK JOSEPH DAVIS, is hereby granted a Judgment of Absolute Divorce from the Defendant, PATRICIA LEE DAVIS; and it is further ORDERED, that the Court reserves the authority to make a marital award, if any, after taking testimony and evidence on the property interests of the parties ...; and it is further ORDERED, that the Court reserves the authority to take testimony and evidence on any and all other issues including alimony and the cause of the break-up of the marriage which exist by and between the parties. A docket entry dated June 11, 1990 (number seventy-seven) reads: “Order for Judgment of Absolute Divorce filed and copy mailed Attorneys.” On August 2, 1990, the parties filed a “Joint Stipulation of Counsel” in which they consented, “as provided by the Annotated Code of Maryland Family Law Article, Section 8-203[,] ... to extend the ninety (90) days from the date of Absolute Divorce signed on June 11, 1990, within which the issue of marital property and property distribution would be reserved.” The court conducted a four-day evidentiary hearing, between September 28 and December 13, 1990, on the marital property issues. During the course of those proceedings, Mrs. Davis objected to Mr. Davis’s attempts to offer evidence that he failed to provide her through discovery. Despite those objections and the prior court order for sanctions, the court admitted the evidence, but reserved its rulings on the objections.

Apparently, Mr. Davis made similar objections, which were disposed of in the same fashion. After the hearing concluded, the Davises filed motions to strike testimony. The court denied the motions. The court’s order reads in pertinent part: ⁸ A Motion to Strike Testimony was filed by both parties in the above entitled case.

Previous to the trial in this case, Judge Robert C. Nalley filed an Order granting sanctions to [Mrs. Davis]. The Order did not set forth the sanctions to be imposed and, accordingly, the Court will make an independent determination of the Motions to Strike Testimony. There were objections made to testimony by counsel on both sides, based on the failure to comply with discovery requests. At the time of the objections, the Court overruled them and informed counsel that they could file Motions to Strike such testimony at the conclusion of the trial.

Both sides have submitted their Motions. After reviewing the file and spending several hours with counsel in negotiation before trial, and hearing the evidence produced by each side, it is the conclusion of this Court that the Motions to Strike Testimony by each side should be denied. This conclusion is reached because some of the information requested by each side to strike is evidence needed to make a decision about what is or is not marital property. Before trial, I spent several hours in settlement conference with both sides and conclude that each made available to the other all documents and information requested.

It is my belief, therefore, that it would be unfair to both parties to strike the testimony requested. On July 2, 1991, the court filed an opinion and order. The court awarded Mrs. Davis a $30,000 marital award and ordered Mr. Davis to pay court costs, but denied Mrs. Davis’s request for alimony and counsel fees. The Davises filed motions to alter or amend judgment, both of which the court denied.

Discussion I A Section 8-203(a) of the Family Law Article of the Annotated Code of Maryland (1991) provides: ⁹ Time of court action. — In a proceeding for an annulment or an absolute divorce, if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property: (1) when the court grants an annulment or an absolute divorce; (2) within 90 days after the court grants an annulment or divorce, if the court expressly reserves in the annulment or divorce decree the power to make the determination; or (3) after the 90-day period if: (i) the court expressly reserves in the annulment or divorce decree the power to make the determination; (ii) during the 90-day period, the court extends the time for making the determination; and (Hi) the parties consent to the extension. (Emphasis added). Mr. Davis argues that the court was without jurisdiction to grant the monetary award on July 2, 1991, because the parties did not consent to an extension of time before the expiration of the ninety-day period that commenced on February 28, 1990. In order to reach the merits of Mr. Davis’s argument, we must first address the threshold question of whether the court “granted” Mr. Davis a divorce during the February 28, 1990 hearing.

Pursuant to § 8-203(a)(2), the ninety-day period during which the trial court may determine marital property begins to run from the date the court “grants” the divorce, if the court expressly reserves in the divorce “decree” the power to make such determination. Mr. Davis contends that the court entered the judgment for absolute divorce during the February 28, 1990 hearing, as reflected by the docket entry; thus, the ninety-day period began to run on February 28, 1990, the date the court granted the divorce. We disagree. Rule 2-601 provides in pertinent part: (a) When Entered. — Upon a general verdict of a jury or upon a decision by the court allowing recovery only of costs or a specified amount of money or denying all relief, the ¹⁰ clerk shall forthwith enter the judgment, unless the court orders otherwise.

Upon a special verdict of a jury or upon a decision by the court granting other relief, the clerk shall enter the judgment as directed by the court.... (b) Method of Entry — Date of Judgment. — The clerk shall enter a judgment by making a record of it in writing on the file jacket, or on a docket within the file, or in a docket book, according to the practice of each court, and shall record the actual date of the entry. That date shall be the date of the judgment. (Emphasis added).

A judgment for absolute divorce is clearly in the nature of “other relief’ as contemplated by this rule. Thus as conditions precedent to the entry of judgment for absolute divorce, the court must (1) direct the clerk to enter judgment, and (2) the clerk must enter judgment on the docket. The docket entry for February 27, 1990 clearly reflects that the clerk entered a judgment for absolute divorce; however, the first requirement was not satisfied. In Rohrbeck v. Rohrbeck, 318 Md. 28 , 566 A.2d 767 (1989), the Court of Appeals addressed the closely related issue of the characteristics which a ruling must have to be considered a final judgment for purposes of appeal.

The Court explained: If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md.Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md.Rule 2-601. Id. at 41 , 566 A.2d 767 . In the case sub judice, it is not necessary to determine whether the supposed judgment was final for purposes of appeal; however, it is necessary to determine whether it was a judgment at all. The first element of Rohrbeck’s tripartite test requires that the court intend its action to be “an unqualified final disposition of the matter in controversy.” Under ¹¹ Rule 2-601(a) the court must direct the clerk to enter the judgment.

If the court “indicates that a written order embodying the decision is to follow,” the ruling from the bench will not be considered final. Id. at 42 , 566 A.2d 767 . In the case sub judice, the court did not indicate that a written order would follow. We consider the language the court used to ascertain the court’s intent.

On February 28, 1990, the court did not “intend its ruling to be the final, conclusive, ultimate disposition of the matter[,]” Rohrbeck, 318 Md. at 41 , 566 A.2d 767 , or direct the clerk to enter judgment. The language used by the court does not indicate that the court made a ruling at all. The court merely “conclude[d], based on the testimony, that [Mr. Davis] ... established grounds to grant him a divorce absolute on the grounds that the parties ... lived separate and apart for the statutory period of more than two years.” If a court declares, for example, “ ‘considering the present situation of [Bonnie], it would appear to us that the best interest of this child will be taken care of in the future. So, the Petition to Terminate is granted [,]’ ” then it can easily be said that the court intended its ruling to be an unqualified, final disposition of the matter.

Carroll County Dep’t of Social Servs. v. Edelmann, 320 Md. 150, 159-60 , 577 A.2d 14 (1990) (emphasis added) (alteration in original); see also id. at 165, 577 A.2d 14 . But when the court comments on its findings of fact and conclusion of law without making an express ruling, there is not “an unqualified, final disposition of the matter in controversy.” Also, unless the record clearly indicates that the court directed the clerk to enter judgment, the clerk has no authority to do so. Our conclusion that the court’s comments did not constitute the grant of an absolute divorce on February 28, 1990, is further supported by the fact that, on June 11, 1990, the court, by decree, “ORDERED, that the Plaintiff, FRANK JOSEPH DAVIS, is hereby granted a Judgment of Absolute Divorce from the Defendant, PATRICIA LEE DAVIS” (emphasis added). The language the court used on February 28, 1990, and the content of the decree, clearly establish that the divorce was granted on June 11, 1990. ¹² On February 27 [28], 1990, the clerk erred when he entered the judgment for absolute divorce on the docket.

That judgment should be reflected in the docket entry of June 11, 1990. Pursuant to Rule 8-414(a), we shall order the correction of those docket entries. We need not consider the merits of Mr. Davis’s argument. The Joint Stipulation of Counsel to extend the time for dealing with the marital property and property distribution issues was dated August 2, 1990, well within ninety days of June 11, 1990.

B Because of its practical importance, we will discuss briefly Rule 2-601. “A decree is defined to be a sentence or order of court determining the rights of matters in question according to equity, and ordering the parties accordingly....” Edgar G. Miller, Jr., Equity Procedure § 259 (1897) (footnote omitted). It 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.2d 762 (1970); Sellman v. Sellman, 238 Md. 615, 618 , 209 A.2d 61 (1965) (per curiam). Although the cases do not suggest the underlying rational for this requirement, we are convinced that decrees were required to be in writing because of their complexity.

Unlike the judgment in a law action, which ordinarily consists of an award for money damages and costs, the decree in equity “specifies what is to be done, when, how, where, by whom, and to or from whom.” 27 Am.Jur.2d Equity § 250 (1966). In Rohrbeck, supra, the Court of Appeals, in dicta, declared that the adoption of the 1984 version of the Maryland Rules, which merged law and equity procedure, and specifically the adoption of Rule 2-601, did away with the absolute requirement of a written decree in equity cases. The Court explained in a footnote: ¹³ As we have indicated, Rule 2-601 does not require a written order to be signed, even in complex decisions. | I]t is certainly the better practice to embody the terms of such decisions in a written order. The extemporaneous recitation of multiple or complex rulings from the bench may be fine for letting the parties and their attorneys know what the court’s decision is in the case, but as it is the actual judgment that will govern the conduct, fortunes, and affairs of the parties, the court must be especially careful that the judgment itself is clear, complete, and precise.

A written order prepared either by counsel ... or by the court itself gives the court an opportunity to review the language, discover and correct any inadvertent imprecisions or inconsistencies, and generally assure itself that the judgment accurately reflects its decision. Upon the filing of a written order, the clerk need do no more than note on the docket that the order was filed and that judgment is entered in accordance therewith. The clerk is relieved of the burden of trying to recall and record what the court said, much less, where the extemporaneous remarks are unclear, of trying to figure out what the court meant. If, for whatever reason, the court decides in such cases to dictate its decision from the bench and allow the clerk to enter the judgment based on the clerk’s recollection of what the court said, the court as a matter of good practice should review the docket entry and assure itself that the entry accurately and adequately reflects the decision. 318 Md. at 46 -47 n. 7, 566 A.2d 767 (emphasis in original).

This certainly appears to be what the Court of Appeals intended when it adopted Rule 2-601. We suggest, however, that the Rules Committee revisit the rule, particularly with respect to divorce decrees and other complex decrees in equity, and consider an amendment which would require that such decrees be in writing, and that the clerk not enter a judgment on the docket until a written decree is filed. An amendment to Rule 2-601 would not significantly change current practice — it is well-known that decrees in equity are almost always placed in writing before the judgment is en ¹⁴ tered on the docket. The amendment, however, would add a degree of certainty in those cases where there is confusion as to what the intent of the judgment of the court is, and whether the court has directed the clerk to enter judgment.

Obviously, this is vital to the parties in the filing of appeals, and the running of statutory periods such as the one provided in § 8203(a)(2) that gave rise to the issue discussed, supra. C Our conclusion that June 11, 1990 is the date on which the court entered judgment for absolute divorce renders Mr. Davis’s argument regarding § 8-203 moot; however, at the same time, it requires that we consider another issue to which Mr. Davis refers in his brief. Mr. Davis contends that, if we determine, as we have, that June 11, 1990 is the operative date, then the court was without jurisdiction to grant the judgment for absolute divorce, because the testimony in support thereof was stale. Mr. Davis cites Rule S75(c), which provides: Stale Testimony.

In an action for divorce, annulment, or alimony in which the testimony has been concluded for more than 90 days without entry of a final decree, a final decree may not be entered until supported by additional testimony justifying the conclusion that there has been no substantial change since the prior testimony was concluded. We note preliminarily that Mr. Davis did not properly raise this issue in his brief. The issue was raised in the “Statement of the Case.” There, Mr. Davis stated: “It should be noted that pursuant to Maryland Rule S75c [sic], the Court did not even have the jurisdiction to issue its June 11, 1990 Order.” Mr. Davis then quoted the text of the Rule and concluded: “As is obvious, June 11, 1990 was more than 90 days after the February 27, 1990 [sic] hearing and no further testimony had been presented subsequent to February 27, 1990.” The statement of the case is limited to a “brief statement ... indicating the nature of the case, the course of the proceedings, and the ¹⁵ disposition in the lower court.” Rule 8-504(a)(2). We may disregard anything in that statement that constitutes argument.

See Rule 8-504(c). We will, however, exercise our discretion and address the issue. Rule S75(c) was addressed recently in Noffsinger v. Noffsinger, 95 Md.App. 265, 279 , 620 A.2d 415 (1993). In that case, a master in chancery took testimony in July 1990, the court heard exceptions to the master’s report over a year later, and another five and one-half months elapsed before the court entered judgment.

We acknowledged that Rule S75(c) was violated. We held, however, that the error was waived because “[n]either party raised the issue of stale evidence or brought it to the attention of the court; neither party requested that additional evidence be taken; neither party moved to vacate, alter, or amend the judgement pursuant to Md.Rule 2-534, in order to comply with Rule S75(c).” Id. at 280 , 620 A.2d 415 . Likewise, in the case sub judice, Mr. Davis did not raise this issue below. In spite of this, we conclude that he did not waive the issue for appellate review on that basis.

In Noffsinger , there was no doubt as to