Denningham v. Denningham

Wiener, J., delivered the opinion of the Court. The parties to this dispute were married on November 9, 1963. They separated July 15,1977, having in the meanwhile produced two children — Coren, born 1965, and Elena, born 1968. Prior to their actual separation, they signed a written Separation Agreement providing, among other things, that appellee (the wife) would have custody of the children and that appellant would pay to her $300 every two weeks for their support.

This litigation ultimately proceeded upon appellee’s supplemental bill in the Circuit Court for Prince George’s County, seeking a divorce a vinculo matrimonii, alimony, incorporation of the terms of the separation agreement into the decree, and counsel fees. Virtually everything, including custody, was in dispute. On June 29, 1979, apparently with the acquiescence of both parties, the court ordered its Mental Hygiene Consultation Service to conduct an investigation for the purpose of "evaluating everyone in the Denningham family” and to file a report with the court. It is evident from what subsequently occurred that this investigation, and the report, was ordered primarily in connection with the issues of custody and visitation; and we shall hereafter refer to it as the "custody investigation.” On July 27, 1979, prior to completion of the custody investigation but following an evidentiary hearing, the court proceeded to dispose of the other matters in dispute.

It entered a decree that day that (1) granted appellee a divorce a vinculo matrimonii; (2) allowed temporary custody of the two minor children of the parties to remain with appellee; (3) determined that a $7,670 judgment be entered against appellant for unpaid child support required by the couple’s separation agreement; (4) ordered appellant to pay $433 per month as temporary child support; and (5) required that the parties be evaluated by the Circuit Court Mental Health and ³³⁰ Hygiene Service preparatory to any "final” custody determination. 1 On August 15, appellant discharged his counsel and advised the court clerk that he would thenceforth be representing himself. On September 20, the court routinely sent a notice to counsel (but not to appellant) advising that the custody investigation report had been received, that "counsel” should contact the Mental Hygiene Consultation Service "for information on this report,” and that the matter would be scheduled for further hearing. Appellant, of course, was unaware of the report. On September 25,1979, appellant filed a motion to revise the July 27 decree, seeking to reduce the amount of the monetary judgment entered against him therein.

On the same day, he noted an appeal to this Court from that decree. 2 On November 8, 1979, apparently in anticipation of the further proceeding pertaining to custody and visitation, the court filed a "Memorandum of Court,” calling attention to the custody investigation report and stating that "[ijnasmuch as this report is confidential and the defendant ... is now representing himself in this matter, the court has decided in all fairness that the contents of the aforementioned report will not be made available to counsel for the plaintiff or the defendant.” The parties returned to court on December 7, 1979, presumably in connection with appellant’s motion to revise ³³¹ the monetary judgment. In view of appellant’s appeal, however, the court declined to consider the motion or even the pending matters of "permanent” custody and visitation. It did consider appellant’s request to read the custody investigation report, but again rejected that request. In so doing, it stated "for the record,” its reason: "that these reports are confidential, they are not designed for the parties, they are designed for the attorneys.

Mr. Denningham was represented during the trial and he is now not represented, and I have decided that in fairness, since the report was prepared for my benefit, I would read the report and I would not let you read the report, either.” (Emphasis supplied.) Appellant dismissed his September 25 appeal to this Court on December 20,1979. Nothing happened, however, for over eight months. On September 3,1980, the parties returned to court in connection with the matters of custody, visitation, child support, and appellant’s year-old motion to revise the monetary judgment, which motion the court quickly denied. The balance of the two-day proceeding concerned custody and visitation, and was taken up primarily with testimony presented by and on behalf of appellant, whose complaint was that appellee has been endeavoring to alienate the children from him.

The court interviewed the children in chambers, alone — apparently without even a court stenographer 3 — and announced that "they are adamant that they want to live with their mother” and that even weekend overnight visits "is going to be difficult for them.” At the conclusion of the proceeding, the court, mentioning both its own interview with the children and the custody investigation report and recommendation, 4 determined that ³³² "there really has been no showing that I should take the children away from the mother and place them with [appellant].” On October 17,1980, the court entered an order awarding permanent custody of the children to appellee, requiring appellant to pay child support of $433 a month, establishing a specific visitation schedule, and directing the Mental Hygiene Consultation Service to review the case in five months and again in ten months. Appellant responded with a motion for rehearing which was denied on November 3, 1980. The next day, he filed this appeal, raising eight issues that go to virtually everything the court decided. He complains about the money judgment, visitation, custody, and child support on a variety of constitutional, procedural, and substantive grounds.

In the interests of clarity, we have divided the issues raised by appellant into two categories — those that question the monetary judgment of July 27, 1979, and those that attack the custody, visitation, and child support decisions. The Monetary Judgment Appellant’s first three complaints concern the entry of the monetary judgment for child support arrearages. Two of them attack the judgment directly on procedural grounds; the third deals with the court’s refusal to grant appellant’s motion to set it aside on the ground that the separation agreement from which the judgment arose was induced by fraud. The money judgment challenged here was part of the July, 1979, divorce decree that resolved all pending matters between the parties except permanent custody, 5 which raises the initial question of whether the current appeal of the money judgment — filed more than a year after that ³³³ judgment was entered — is a timely one under Maryland Rules 605a and 1012.

In Pappas v. Pappas, 287 Md. 455 (1980), the Court of Appeals reminded both bench and bar that Maryland Rule 605a is a general rule and that it applies to domestic cases. With one possible caveat, which it unfortunately left somewhat imprecise, the Court made clear that a divorce decree which adjudicates less than all of the claims pending before the trial court is not a final and appealable one except to the extent that the determination and direction required under the rule is validly made, and that, unless dealing with an order for which an interlocutory appeal is allowed under Courts article, § 12-303, no part of such a decree may be appealed until finality is achieved through the resolution of the remaining issues. The caveat referred to appears on p. 463 of 287 Md. The decree at issue in Pappas granted a divorce and awarded alimony, child support, guardianship of the minor children, and counsel fees, but reserved ruling on the issues of property division, custody, and the amounts of alimony, child support, and counsel fees. Absent a Rule 605a determination and direction, the Court concluded that too much had been left open — that less than all the claims had been decided and that no part of the decree was final or appealable.

It then said, however: "For purposes of this opinion it is not necessary for us to determine whether the reservation of the amount of counsel fees or the reservation of the amount of alimony and support without more would render the decree other than final. It is sufficient for our purposes to hold that where the issue of property division, the amount of counsel fees, and the amount of alimony and support remain to be determined, the judgment was not final.” (Emphasis in original.) The Court did not explain in this caveat what is so special about the amounts of support (spousal or child) that might exempt a reservation of those items from the operation of the ³³⁴ rule. Was it suggesting perhaps that those items may be different because they are always subject to the further jurisdiction of the court, and therefore never achieve the status of true finality? If so, it would seem that orders of child custody and visitation should be treated likewise.

Read literally (and until Pappas rather consistently), Rule 605 a would seem to admit of no exceptions — that a decree which fails to resolve a pending issue in dispute, whether support or custody, does indeed adjudicate "less than all the claims” and therefore does "not terminate the action as to any of the claims” unless the authorized determination and direction is made. See Estep v. Estep, 285 Md. 416, 423-24 (1979). The Court’s suggestion in Pappas that there might be exceptions to the rule, at least with respect to support, ought to be clarified. Litigants (and their attorneys) must have some assurance as to whether a divorce rendered by a decree that leaves open an issue of support (or custody or visitation) is or is not final.

There is more at stake than the timeliness of appeals, although that, of course, is the heart of the matter. In this case, it makes no practical difference whether the current appeal is timely. We have examined the substance of appellant’s complaints about the money judgment and find them to be without merit. The trial court made its findings based on disputed evidence, and we find neither clear error in the findings nor an abuse of discretion in the court’s declining to revise them.

Thus, whether the current appeal is timely by