Early v. Early

RAKER, Judge. The principal issue in this case is whether the circuit court, in a contempt proceeding brought by a child support enforcement agency against a father for violation of a Uniform Reciprocal Enforcement of Support Act (“URESA”) 1 support order, has the power to terminate the father’s ongoing child support obligations and waive arrearages. We shall hold that the trial court lacked authority to modify a URESA child support order when no motion to modify the support order was filed and the mother and child were not given notice and an opportunity to respond. An attempt by the Prince George’s County Office of Child Support Enforcement (the “OCSE”) to enforce a 1982 child support order entered in a URESA proceeding eventually generated the issue raised in this appeal.

In 1990, the OCSE filed a petition in the Circuit Court for Prince George’s County seeking to have Stephen Early, the appellant-father, held in contempt for failing to pay ordered support. In 1993, in the same proceeding, the circuit court entered an order that: (1) terminated the father’s ongoing child support obligations; (2) assessed arrearages at zero; and (3) dismissed the contempt proceeding. More than 30 days after entry of that order, on motion by the OCSE, the Honorable Robert J. Woods vacated the enrolled judgment. The father appealed from Judge Woods’ order to the Court of Special Appeals, and we issued a writ of certiorari on our own motion before consideration by that court.

We shall affirm the circuit court’s order vacating the enrolled judgment. ⁶⁴⁴ I. Beverly and Stephen Early were married in Idaho in February 1978 and had one child, Andrew, who was born in February 1979. The mother applied for public assistance; as part of her application, the mother assigned her rights to child support to Idaho’s welfare department. See 42 U.S.C. § 602 (a)(26)(A) (1988); cf. Maryland Code (1957, 1991 Repl.Vol.) Art. 88A, § 48(2) (parent required to assign child support rights to state to receive AFDC). In November 1979, the mother and father were granted an absolute divorce, and the Idaho decree ordered the father to pay monthly child support.

In 1980, the State of Idaho IV-D Agency (the Idaho agency that provided child support enforcement services under the federal Aid to Families with Dependent Children program, Part D of Subchapter IV of the Social Security Act, 42 U.S.C. §§ 651-669 (1988 & Supp. V 1993)), as an “obligee,” 2 filed a URESA complaint in Idaho. The URESA complaint sought monthly support and arrearages as reimbursement of public assistance paid for the child’s benefit. The complaint was transferred to the Circuit Court for Prince George’s County, Maryland, where the father resided. 3 ⁶⁴⁵ The State’s Attorney for Prince George’s County represented the Idaho IV-D Agency. See FL §§ 10-115, -317(b).

On September 28, 1982, the circuit court entered a final order for ongoing child support of $100 per month and for payment of $1,600 in arrearages. The father made fairly regular support payments to the OCSE 4 from 1983 through 1986. His last child support payment was made in August 1986. On September 11, 1990, the OCSE filed in the URESA action a motion to cite the father for contempt of the 1982 Maryland child support order.

The OCSE filed this motion without the mother’s knowledge and had, in fact, not been in contact with her since 1984. 5 In the years following the original URESA action, the mother remarried, made several interstate moves, and received public assistance for part of that time. By 1992, she apparently had moved back to Idaho and again was receiving public assistance. Although the trial court made no findings on the amount of arrearages, the OCSE estimated that in November 1993 arrearages were in excess of $20,000, of which approximately $500 would be payable to the mother, with the remainder payable to Idaho as reimbursement for public assistance. ⁶⁴⁶ In May 1992, 6 counsel for the father entered his appearance in the contempt proceeding. A hearing on the motion for contempt was scheduled for August 26.

On July 17, the father filed a Motion for Pendente Lite Relief asserting that he believed his son had been adopted. He also filed a motion to have the mother held in contempt for, among other things, failure to inform the appropriate agencies of the alleged adoption. Both motions were served on the OCSE. The father’s Motion for Pendente Lite Relief requested that the OCSE be enjoined from enforcing the child support order until the mother, by deposition or affidavit, clarified the “status” of the adoption.

The father did not request modification of the 1982 Maryland child support order in the Motion for Pendente Lite Relief or in any subsequent motion. The OCSE objected to the pendente lite motion, arguing that the father had no proof that an adoption had occurred and that the OCSE was required to enforce the existing support order. The circuit court (Woods, J.) granted the father’s Motion for Pendente Lite Relief on August 10,1992. The order provided as follows: UPON CONSIDERATION of Defendant’s Motion for Pendente Lite Relief, good reasons having been shown therefor, it is this 10th day of August, 1992, by the Circuit Court for Prince George’s County, Maryland, ORDERED, that Défendant’s Motion be, and the same is hereby, GRANTED; and it is further ORDERED, that the Plaintiff appear in the jurisdiction of this Honorable Court to be deposed on the matter of the status of the adoption proceedings in Kings County, California; and it is further ⁶⁴⁷ ORDERED, that, in the alternative, the Plaintiff issue a signed and sworn affidavit regarding the matters of the adoption in Kings County, California, and any disposition thereof; and it is further ORDERED, that until such time as the deposition and/or affidavit is completed and received by the Defendant, the Defendant be relieved of any payments of child support to any child support enforcement agency; and it is further ORDERED, that the Prince George’s County Child Support Enforcement Agency be enjoined temporarily and/or permanently from further attempts to enforce the Idaho court order.

In February 1984, the mother had sent the father (forwarded through the OCSE) a letter inquiring whether he would consent to the adoption of his child by the mother’s then current husband. The father responded by letter that he would give his consent. Both the mother’s letter and the father’s response refer to the fact that a consent form would need to be executed by him. There apparently was no further correspondence between the two parents.

No consent form was ever prepared. These two letters were the sole basis for the father’s claimed belief that an adoption had occurred. As subsequently revealed by the mother’s affidavit, accepted by the court for filing at the hearing on the motion to vacate held on November 29, 1993, the child was not adopted. On August 26, 1992, the father’s counsel served a Request for Admissions of Fact on the OCSE.

Request for Admission No. 5 stated: “Andrew Early, son of Stephen Early, was adopted on or about June 1, 1984.” On October 5, 1992, the OCSE requested a protective order excusing its response to the Request for Admissions. The OCSE stated that it had not been in contact with the mother since February 1984 and did not know or need to know her address because “most of the payments were due to the state, since the Plaintiff was receiving public assistance, and therefore were sent to the state and an address for the Plaintiff was unnecessary.” The OCSE’s motion for a protective order also ⁶⁴⁸ requested that the father be directed to serve the Request for Admissions on the mother directly. The father opposed the OCSE’s motion, asserting that the requests were deemed admitted under Maryland Rule 2-424 when there was no timely response. On October 20, 1992, the Honorable William D. Missouri granted a protective order “excusing the response by the Office of Child Support Enforcement to request for admissions.” Judge Missouri also denied the father’s pending motion to have the mother held in contempt.

Despite the grant of the protective order to the OCSE, and the fact that the Request for Admissions was never personally served on the mother, the father took the position that his requests, not having been timely denied, were now deemed admitted for purposes of the proceeding. On November 12, based on this “admission” of the adoption, the father filed a Motion for Summary Judgment. He also had filed a motion to dismiss in part, asserting a statute of limitations defense to enforcement by contempt of some of the arrearages. On March 8, 1993, a hearing was held on the outstanding motions before Domestic Relations Master Arnold L. Yochelson.

A transcript of that hearing is not part of the record, but the master made written recommendations. On March 19, 1993, in the Circuit Court for Prince George’s County, the Honorable William B. Spellbring, Jr., signed the following order 7 (based on the master’s recommendations): A hearing was held before the Master for Domestic Relations Causes on the 8th day of March, 1993. The Master’s Recommendations having been considered, it is thereupon this 19th day of March, 1993, by the Circuit Court for Prince George’s County, Maryland: ⁶⁴⁹ ORDERED, that this matter be continued and rescheduled for hearing by the Assignment Office; and it is further ORDERED, that the Motion to Withdraw Appearance filed herein by counsel for the defendant be and the same hereby is withdrawn; and it is further ORDERED, that the Plaintiff be and she hereby is required to submit an affidavit under oath stating the status of any adoption proceeding filed involving the minor child, Andrew Owen Early, born on February 10, 1979, within sixty (60) days of the date of the aforesaid hearing; and it is further ORDERED, that, in the event plaintiff fails to do so, ongoing child support be terminated, arrears assessed at zero, and the above-captioned action dismissed. A hearing was scheduled for June 21, 1993, and notice of the hearing was sent to the OCSE and the father’s counsel.

On May 10, 1993, 63 days after the March 8 hearing, the father’s counsel submitted a proposed order to the Honorable James Magruder Rea, which Judge Rea signed. That order stated: Pursuant to an Order of Court dated the 19th day of March, 1993, from this Honorable Court, and in consideration of the fact that the Plaintiff has failed to fulfill the requirement ordered by the Court at that time, it is, this 10th day of May, 1993, by the Circuit Court for Prince George’s County, Maryland, hereby, ORDERED, that the ongoing child support between the parties is hereby terminated; and it is further ORDERED, that arrearages in this matter be assessed at zero; and it is further ORDERED, that the above-captioned action be, and is hereby, DISMISSED. ⁶⁵⁰ The order was docketed on May 13, 1993. 8 The OCSE did not learn of the May 13 order until after June 21, 1993, the scheduled hearing date. Thereafter, the OCSE moved to set aside the May 13 order, and the father opposed the motion. On November 29, 1993, a hearing was held before Judge Woods on the motion to vacate.

The father’s counsel summarized the earlier proceedings and framed the issue as a failure of the OCSE to comply with a discovery order. The following colloquy took place between counsel for the father and the court: [COUNSEL FOR FATHER]: There was a hearing before Master Yochelson on March 8th on all pending motions. We were going to try to get this resolved finally. We got into the preliminary discussion of discovery and the fact that this requests for admissions had not been answered.

At that time Master Yochelson sua sponte had a motion to compel that within sixty days of his recommendation that an answer to the requests for admissions would be filed with the court. THE COURT: Whether the child is adopted or not? [COUNSEL FOR FATHER]: Exactly. And additionally sua sponte also had sanctions if the motion to compel was not complied with. THE COURT: What were the sanctions? [COUNSEL FOR FATHER]: The sanctions were ongoing arrearages were to be terminated, the arrearage assessed at zero and the case dismissed.

THE COURT: Pretty severe sanctions. The father’s argument focused on the authority of the court to impose the ordered sanctions on the OCSE. The court rejected the father’s argument. [COUNSEL FOR FATHER]: This matter I believe can be narrowed down to something very, very simple. My client ⁶⁵¹ has a right to discovery.

As every attorney we have to comply with the rules and we filed the requests for admissions. The plaintiff didn’t provide them. We had a hearing before a master. The master made a recommendation.

The judge signed off on it to — in the best light to the plaintiff. THE COURT: But who are we affecting? We’re affecting the child and its right to support. It’s the child’s right.

Later, Judge Woods announced his ruling: THE COURT: I’m going to rule on this. I certainly understand your client’s position, but I really think I’m affecting the rights of a child that I just can’t affect by some discovery order and I think public policy ... dictates that the discovery rules in this case are not applied to that child.... On November 30, 1993, Judge Woods vacated the May 13 and March 19 orders. 9 The father timely appealed from the November 30 order.

II

We recently had cause to discuss, at length, the precept “that once a case is decided, it shall remain decided with certain very narrow exceptions.” Tandra S. v. Tyrone W., 336 Md. 303, 324 , 648 A.2d 439, 449 (1994) (reversing circuit court order that vacated enrolled paternity judgment). Those very narrow exceptions are embodied in Maryland Rule 2-535, which provides in pertinent part- ía) Generally. — On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action ⁶⁵² was tried before the court, may take any action that it could have taken under Rule 2-534. (b) Fraud, Mistake, Irregularity. — On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity. See also Maryland Code (1974, 1989 Repl.Vol.) § 6-408 of the Courts and Judicial Proceedings Article.

The terms “fraud, mistake, or irregularity” as used in Rule 2-535(b) and its predecessor, Rule 625(a), are narrowly defined and are to be strictly applied. See Autobahn v. Baltimore, 321 Md. 558, 562 , 583 A.2d 731, 733 (1991). 10 A. An “irregularity,” as used in Rule 2-535(b), means “the doing or not doing of that, in the conduct of a suit at law, which, conformable to the practice of the court, ought or ought not to be done.” Weitz v. MacKenzie, 273 Md. 628, 631 , 331 A.2d 291, 293 (1975)), quoted in Tandra S., 336 Md. at 318 , 648 A.2d at 446 . In other words, an “irregularity” is a failure to follow required process or procedure. See Weitz, 273 Md. at 631 , 331 A.2d at 293 .

An example of an “irregularity” is the failure of the clerk to send required notice of a default judgment to the defendant. Maryland Lumber v. Savoy Constr. Co., 286 Md. 98 , 405 A.2d 741 (1979); see also Hardy v. Hardy, 269 Md. 412 , 306 A.2d 244 (1973) (court’s grant of waiver of publication of name change petition for infant on motion by mother was “irregularity,” even though court had discretion to waive publication on motion showing good cause). The final judgment in this case was the order dismissing the action, entered by the court on May 13, 1993.

The OCSE was not given notice that the father’s counsel intended ⁶⁵³ to present a proposed order to Judge Rea, and no hearing was held at that time. Maryland Rule 1-324 requires the clerk to send a copy of any order not made in the course of a hearing or trial to all parties entitled to service. 11 Counsel for the OCSE stated that the OCSE did not receive a copy of the May 13 order until the hearing date, more than 30 days after entry of the order. This statement was undisputed. It appears that the notations on the bottom of the order may have misled the clerk into believing that copies of the order were sent to the parties by the judge, and therefore the clerk failed to send copies of the order to the parties.

The May 13 docket entry reads: “Order of Court dated 5-10-93, ongoing support be terminated, arrears $0, Action be dismissed FD (Judge Rea) CC. sent by Court.” It appears that when the clerk sent copies of court orders, the docket entry read, “Copies to OCSE & Def. Atty.” See Record at 70 (3/26/93 docket entry). The requirements of Rule 1-324 were not satisfied because the clerk failed to send a copy of the order to all parties. This failure to follow required procedure was an “irregularity” within the meaning of Rule 2-535(b).

We hold that the court properly vacated the May 13 order, in its entirety, based on irregularity. B. We also believe that the circuit court lacked the power to enter a judgment modifying ordered child support in a contempt proceeding. ⁶⁵⁴ The circuit court has fundamental jurisdiction to determine and enforce child support obligations owed to a nonresident under URESA. Section 10-310 of the Family Law Article provides: Jurisdiction of all civil enforcement proceedings under this subtitle is vested in the circuit court for any county and juvenile courts having jurisdiction over the enforcement of laws respecting duties of support. A key purpose of Maryland’s URESA “is to provide liberal enforcement in Maryland of the claims of out-of-state welfare departments which have made support payments to nonresident parents and children entitled to support.” Commonwealth of Virginia v. Autry, 293 Md. 53, 57 , 441 A.2d 1056, 1058 (1982).

Where Maryland is the responding state in a URESA action, the circuit court determines, applying Maryland law, whether and to what extent a duty of support will be imposed. See FL § 10-307; Autry, 293 Md. at 59 , 441 A.2d at 1059 (law of responding state governs determination of existence and extent of duty of support). Clearly, in non-URESA cases, the circuit court may exercise continuing subject matter jurisdiction to modify child support orders it enters. Under FL § 1 — 201(a)(9), “[a]n equity court has jurisdiction over ... support of a child” and therefore may determine whether a duty of support is owed, set the amount of child support, and later modify that ordered support.

The court may, in the exercise of its jurisdiction: (3) decide who shall be charged with the support of the child, pendente lite or permanently; (4) from time to time, set aside or modify its decree or order concerning the child.... FL § 1—201(b); see also FL § 8-103(a) (court may modify any provision of an agreement or settlement with respect to support of a minor child in the best interests of the child); Wooddy v. Wooddy, 258 Md. 224, 228 , 265 A.2d 467, 470 (1970) (court may modify child support order in exercise of its sound discretion). ⁶⁵⁵ A URESA proceeding is an equitable action. Commonwealth of Penna. v. Warren, 204 Md. 467 , 105 A.2d 488 (1954). In a URESA action, the circuit court may exercise its general equitable powers to further the purposes of the Act.

See Autry, 293 Md. at 67-68 , 441 A.2d at 1064 (Act must be liberally construed to allow Maryland court to address child’s current needs); see also Abb v. Crossfield, 23 Md.App. 232, 237 , 326 A.2d 234, 238 (1974) (court in URESA action has whatever equitable powers are necessary to effectuate the Act’s purpose); cf FL § 10-322 (when Maryland is responding state, court may order support upon finding a duty of support). As we held in Autry : Ordinarily, a responding state court in a URESA proceeding has the authority to consider child support matters and to enter whatever support orders are proper, notwithstanding any action taken in a prior judicial proceeding. Thus, a responding state court has the authority to issue an independent order fixing an amount of support different from that previously ordered by a court. 293 Md. at 64 , 441 A.2d at 1062 . The same rationale we followed in Autry regarding authority of a Maryland court to enter a URESA order different from that initially entered in another jurisdiction applies to the authority of a Maryland court to modify a URESA child support order initially entered in Maryland.

Therefore, the circuit court has basic authority to modify a child support order originally entered by a Maryland court in a URESA proceeding. Although the circuit court has the authority to modify a URESA support order, that authority must be invoked by appropriate pleadings. Carroll County v. Edelmann, 320 Md. 150 , 577 A.2d 14 (1990) (court had no authority to exercise jurisdiction over termination of parental rights on petition by mother, with consent of father, where statutes required either adoption or guardianship proceeding). In Edelmann , where the circuit court had fundamental jurisdiction, the remaining question was “under what circumstances the court may appropriately exercise that jurisdiction; is it authorized, by some provision of law or by some inherent authority, to exercise it ⁶⁵⁶ in this kind of case? ” Id. at 170, 577 A.2d at 23 (emphasis added); see also First Federated Com.

Tr. v. Comm’r, 272 Md. 329, 334-35 , 322 A.2d 539, 543 (1974) (where circuit court had jurisdiction over the parties, inquiry limited to whether court had authority to consider the subject matter involved, i.e., fundamental jurisdiction, and