Flanagan v. Department of Human Resources

HARRELL, Judge. The Circuit Court for Baltimore City found, on 18 October 2007, the Petitioner, Rafael Flanagan (“Flanagan”), in constructive civil contempt for his failure to pay child support in accordance with a 1987 consent paternity and child support decree. Prior to the contempt finding, Flanagan filed a motion to dismiss the civil contempt petition, contending that the Circuit Court lacked personal jurisdiction over him because the Respondent, the Department of Human Resources, Baltimore City Office of Child Support Enforcement (“DHR”), failed to effect proper service of process upon him, as required by the Maryland Rules and the Family Law Article of the ⁶²⁰ Maryland Code. Obviously, the Circuit Court denied Flanagan’s motion.

On Flanagan’s appeal, the Court of Special Appeals affirmed. For reasons we shall explain, we reverse the judgment of the Court of Special Appeals and hold that the Circuit Court erred in denying Flanagan’s motion to dismiss the civil contempt petition. FACTS Sherry Flanagan, now emancipated, was born to Cynthia Rhodes on 13 August 1983. On 19 March 1987, Rhodes filed in the Circuit Court a petition to establish the paternity of Sherry, then three years old, alleging that Flanagan was Sherry’s father.

In response to the paternity petition, Flanagan entered into a consent paternity decree on 5 May 1987. The decree declared Flanagan to be Sherry’s father and obligated him to pay $20 per week in child support. In addition, the terms of the consent decree required Flanagan: (1) to obtain the court’s consent before leaving the State of Maryland; (2) to report any change in address to the Bureau of Support Enforcement; and, (3) to appear in response to any notice served by mail or by a peace officer in connection with the consent order. The consent decree provided that its provisions pertaining to guardianship, custody, support, bond, and relationship “remain subject to further Order of the Court.” Over the years that followed entry of the consent paternity decree, Flanagan utterly failed to make any child support payments.

On 9 July 1990, Rhodes petitioned the Circuit Court to issue a contempt of court show cause order. The court issued the order, which required that Flanagan appear for a 6 August 1990 show cause hearing to explain why he should not be held in contempt for his failure to make the child support payments, which were by that time $2,780 in arrears. The record indicates that, on 26 July 1990, the Sheriff attempted to serve a copy of the petition and show cause order on Flanagan at 3459 Cottage Avenue, Baltimore, Maryland, the address Flanagan had provided the court in the earlier paternity proceedings. Copies of the petition and ⁶²¹ order were left at the address, without making personal contact with Flanagan.

The Sheriff made a non est return, according to the court record. Five years later, on 11 August 1995, DHR, on behalf of Rhodes, filed with the Circuit Court a new petition for a contempt of court show cause order, alleging that Flanagan was in contempt for failure to pay ordered child support, which now totaled $5,568.47 in arrears. On 21 August 1995, the Circuit Court issued the requested show cause order, which directed Flanagan to appear at a hearing scheduled for 11 September 1995, provided the order was served on him by 1 September 1995. The record indicates that, on 24 August 1995, a copy of the show cause order was left under the door of the residence at 1925 Pennsylvania Avenue, Baltimore, Maryland, which, according to DHR, was Flanagan’s last known address at that time.

On 11 September 1995, Flanagan’s case was called, but he was not present. Accordingly, the Circuit Court issued a paternity contempt arrest warrant for Flanagan. 1 Flanagan was not arrested on the paternity contempt arrest warrant until January 2007, twelve years after issuance of the warrant. At Flanagan’s bail review hearing on 26 January 2007, he was served with an Incarceration Show Cause Order, which again required him to appear at a hearing, scheduled initially for 24 April 2007, but postponed until 18 October 2007, to explain why he should not be held in contempt for failure to pay the agreed child support. On 23 May 2007, Flanagan, now represented by an attorney from the local State Public Defender’s Office, filed a motion to dismiss the contempt petition pursuant to Rule 2-507(b), 2 based on lack of personal ⁶²² jurisdiction.

He contended that the court lacked jurisdiction over him because he was not served personally and properly with the petition as required by the Maryland Rules governing service of pleadings that originate a new civil action. As his argument went, Flanagan iterated that service of the order by leaving it under the door at 1925 Pennsylvania Avenue was insufficient, and that service of the paternity contempt warrant in 2007 was invalid because the warrant had been issued improperly (in sort of a “fruit of the poisonous tree” theory). In addition, he argued that service of the Incarceration Show Cause Order on him at the January 2007 bail hearing was inadequate because the original contempt petition was not served with it and more than 120 days elapsed since the contempt petition was filed. After a hearing on 5 September 2007, the Circuit Court denied Flanagan’s motion to dismiss the petition for lack of personal jurisdiction.

On 18 October 2007, Flanagan appeared in the Circuit Court for the contempt hearing and, after presentation of an agreed admission of fact that Flanagan was $11,683.47 in arrears on his child support payments, the court found him in constructive civil contempt, but deferred disposition. 3 ⁶²³ Flanagan appealed timely to the Court of Special Appeals. On 11 March 2009, the Court of Special Appeals, in an unreported opinion, affirmed the Circuit Court, rejecting Flanagan’s claim that the lower court lacked personal jurisdiction over him. Specifically, the Court of Special Appeals found: (1) that the 1987 consent paternity decree provided Flanagan with notice of his obligation to pay child support; (2) that the Circuit Court obtained personal jurisdiction over Flanagan at the outset of the paternity proceedings in 1987 and continued to have jurisdiction to enforce the terms of the consent decree; and, (3) that the personal delivery of the incarceration show cause order to Flanagan at his bail review hearing constituted proper service. The court noted that, while it agreed that service of the 21 August 1995 show cause order at 1925 Pennsylvania Avenue was defective, Flanagan’s substantive due process right to notice and his procedural due process right were satisfied; thus, the Circuit Court obtained personal jurisdiction over him to adjudicate the contempt proceedings.

We granted Flanagan’s petition for writ of certiorari, 409 Md. 46 , 972 A.2d 861 (2009), to consider whether the Circuit Court, at the time of the 2007 contempt proceedings, lacked personal jurisdiction over Flanagan and therefore erred in denying Flanagan’s motion to dismiss the contempt petition. 4 For reasons we shall explain, we are obliged to agree with Flanagan and reverse the judgment of the Court of Special Appeals. ANALYSIS “It is fundamental that before a court may impose upon a defendant a personal liability or obligation in favor of ⁶²⁴ the plaintiff or may extinguish a personal right of the defendant it must have first obtained jurisdiction over the person of the defendant.” Lohman v. Lohman, 331 Md. 113, 125 , 626 A.2d 384, 390 (1993). Stated another way, we have observed that “[tjhere can be no judgment nor decree in personam unless the defendant has been notified of the proceeding by proper summons, for the court has no jurisdiction over him until such service is properly accomplished, or is waived by a voluntary appearance by the defendant, either personally or through a duly authorized attorney.” Id. at 130 , 626 A.2d at 392 . The Maryland Rules governing service of process “are declaratory of the basic requirements of due process of law in the prosecution of constructive contempts,” Reamer v. Reamer, 246 Md. 532, 535 , 229 A.2d 74, 76 (1967), and failure to comply with those Rules constitutes a jurisdictional defect that prevents a court from exercising personal jurisdiction over the defendant.

Lohman, 331 Md. at 130 , 626 A.2d at 392 . In the present case, we must determine whether, at any relevant point in time, Flanagan was served properly in accordance with the Maryland Rules such that the Circuit Court obtained personal jurisdiction over him for purposes of the exercise of its contempt authority in aid of execution on the 1987 child support order. We conclude that Flanagan was not served properly, and, thus, the Circuit Court lacked personal jurisdiction to adjudicate the contempt petition against him in 2007. A. The 1995 Show Cause Order To recapitulate, in 1995, in response to DHR’s petition for a contempt of court show cause order, the Circuit Court issued an order directing Flanagan to appear at a show cause hearing scheduled for 11 September 1995, provided the order was served on him by 1 September 1995.

On 24 August 1995, a copy of the show cause order 5 was left under the door at ⁶²⁵ 1925 Pennsylvania Avenue, an address which, according to DHR, was the last known address for Flanagan at that time. The record indicates, however, that 1925 Pennsylvania Avenue was but one of a number of potential addresses that DHR possessed for where Flanagan might be found. A “Wage History Report” contained in the record lists seven additional addresses, apparently of businesses for which Flanagan worked in the years prior to service of the show cause order at 1925 Pennsylvania Avenue. Based on the discussion below, we conclude that the service of process effected in the present case, namely, leaving the show cause order under the door of 1925 Pennsylvania Avenue, was insufficient under the relevant Maryland Rules and case law to provide the Circuit Court with personal jurisdiction over Flanagan for purposes of conducting a contempt proceeding.

Rule 2-121, entitled “Process-—Service—In personam,” governs service of original process in civil actions. The version of that section in effect in 1995 provided: (a) Generally.—Service of process may be made within this State or outside this State when authorized by the law of this State, by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it, or by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery—show to whom, date, address of delivery.” Service by certified mail under this Rule is complete upon delivery. Service outside the State may also be made in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice. (b) Evasion of Service.—When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and ⁶²⁶ delivering a copy of each to a person of suitable age and discretion at the place of business, dwelling house, or usual place of abode of the defendant.

(c) By Order of Court.—When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice. (d) Methods Not Exclusive.—The methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction over a defendant. Rule 2-121 (1995). Rule 1-321, entitled “Service of pleadings and papers other than original pleadings,” governs service of process for subsequent pleadings where an individual is already a party to the action.

As it does today, the version of that section in effect in 1995 provided: (a) Generally.—Except as otherwise provided in these rules or by order of court, every pleading and other paper filed after the original pleading shall be served upon each of the parties. If service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the office of the person to be served with an individual in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of that person with some individual of suitable age and discretion who is residing there.

Service by mail is complete upon mailing. ⁶²⁷ (b) Party in Default—Exception.—No pleading or other paper after the original pleading need be served on a party in default for failure to appear except a pleading asserting a new or additional claim for relief against the party which shall be served in accordance with the rules for service of original process. (c) Requests to Clerk—Exception.—A request directed to the clerk for the issuance of process or any writ need not be served on any party. Rule 1-321 (1995): Regardless of whether service of the show cause order and petition for contempt was required to comply with the rigors of Rule 2-121 as an original pleading or the more relaxed standards of 1-321 as a subsequent pleading, the service effected in the present case was deficient under either. It is readily apparent that service was not effected properly under any of the options listed in Rule 2-121.

Even under the more lenient Rule 1-321, service of a subsequent filing upon an individual at his or her usual place of abode, where the person to be served is not present, must be effected upon an individual of suitable age and discretion who is residing there. In the present case, the show cause order merely was left under the door of 1925 Pennsylvania Avenue, where DHR believed Flanagan to be residing, rather than served on an individual residing at the address and capable of receiving service. In addition, there is no indication that service was attempted at any of the other potential addresses listed for Flanagan (whether residential or places of business), such that a court could conclude that DHR exercised good faith efforts to serve Flanagan or that Flanagan was evading service. The attempt at service effected here falls short of compliance with either of the Rules governing service of process.

Such failure undermines fatally reliance on service of the 1995 show cause order as the basis for personal jurisdiction over Flanagan by the Circuit Court for the purpose of the 2007 contempt proceedings. ⁶²⁸ DHR’s fallback contention is that leaving the order under the door at Flanagan’s alleged residence constituted sufficient notice under the doctrine of continuing jurisdiction. Under that doctrine, if a court obtains personal jurisdiction initially over parties to an action (in this case, the entry of the 1987 consent decree), its jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. Glading v. Furman, 282 Md. 200, 204, 383 A.2d 398, 401 (1978); Michigan Trust Co. v. Ferry, 228 U.S. 346, 353 , 33 S.Ct. 550, 552 , 57 L.Ed. 867, 874 (1913) (noting that, if a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of a State to bind him by every subsequent order in the cause). In order for the court to maintain personal jurisdiction under the doctrine, however, the defendant must receive reasonable notice and be afforded an opportunity to be heard at each new step in the case if an in personam decree is to be rendered against him.

Glading, 282 Md. at 204, 383 A.2d at 401 . To satisfy the requirements of the doctrine, DHR contends that: the contempt proceeding arose out of the original paternity proceedings; the service afforded Flanagan in 1995 provided him with reasonable notice