Flynn v. May

MOYLAN, J. Applicability of the Default Judgment Rule To Child Custody Disputes Imposing a judgment by default is a harsh sanction, but it is a measure that is sometimes called for to unclog the arteries ³⁹¹ of litigation. In its ordinary context, it involves a civil suit between two litigants, and what is at stake is routinely an award measured in dollars. The party suffering the loss has, in major measure, brought it upon himself. The appropriateness of the procedure is far less clear-cut, however, when a party possibly hurt by the sanction is one other than the dilatory litigant and when what is at stake is something other than dollars.

This appeal raises, as a matter of first impression, the question of whether the default judgment procedure should even be available in a dispute over the custody of a child. Whereas in the ordinary civil suit, two litigants are fighting about money, in a child custody contest the very object of the suit is a real, albeit unnamed, party whose best interest transcends that of either formal litigant. Should the custody of a young child, arguendo, ever be taken away from a more fit custodian and awarded to a less fit custodian simply because the more fit custodian had been guilty of a procedural default? Should the failure to file a responsive pleading, a matter of great moment perhaps to administrative judges, ever be permitted, ipso facto, to render a mother an unfit custodial parent of her child?

In such a case, does the law’s legitimate interest in unclogging the arteries of litigation “trump” the best interest of the child? It may well be, as we are unabashedly suggesting, that the default judgment procedure has no applicability in child custody cases, but it is unnecessary to propound so sweeping a holding in this case. It is enough for us to hold that, in the circumstances of this particular case, the award of a change of custody by default, without a hearing on the merits, constituted an abuse of discretion. The larger question, however, remains one that merits serious further consideration.

The First Seven Years The appellant, Jennifer Flynn (“Mother”), had a child, Bryant Austin May, by the appellee, Dannie May, Jr. (“Fa ³⁹² ther”), on August 2, 1996. The Mother and Father were never married, but the Father acknowledged paternity and the couple lived together until November 17, 2000. When the Mother and Father separated, Bryant was four years of age. By informal agreement between the parents, the Mother assumed primary physical custody.

Bryant lived with his Mother and his maternal grandmother in Dundalk until February of 2003. At that time, Bryant and his Mother moved into a home of their own, also in Dundalk. By virtue of the visitation schedule agreed upon by the parties, Bryant spent the weekends, from early Saturday morning until early Sunday evening, with the Father. Bryant also spent time with his Father on Monday and Wednesday evenings from 3 P.M. until 8 P.M. None of this was by court order; nor was there any court order establishing the amount of child support.

The Case Goes to Court On April 10, 2003, the Father filed a petition in the Circuit Court for Baltimore County seeking both the primary physical custody of Bryant and child support from the Mother. It was at that point that procedural momentum took control of the case. The Mother was served with a copy of the Father’s petition on April 24. She attempted to respond pro se.

The decision to proceed pro se was a serious tactical mistake on her part with, as this case illustrates, potentially grievous consequences. On May 21, the Mother sent to the court her one-page typewritten answer to the petition, in which she responded to each and every one of the thirteen paragraphs of the petition. On the following day, however, the clerk of the circuit court returned the response to the Mother, along with a form that had a checkmark beside the following entry: No certification of mailing or service (Md. rule 1-323) (Need to mail a copy to the other party and state that you did this on your pleading) Below that entry was the further handwritten message, “State when & how sent.” That is not a simple message for a layman to decipher. ³⁹³ Although there was a dispute, unresolved, about whether the Mother subsequently made successful telephone contact with the Father’s attorney, the bottom line was that the Mother’s answer was never officially received by the court because of the lack of certification of service. As far as the Mother was concerned, she had answered; but officially her ineffectual attempt was a non-answer.

Accordingly, the Father on June 3 filed a Request for Order of Default against the Mother because of her “failure to plead as provided by the Maryland Rule.” On that same day, the circuit court judge, the first of three to make rulings in this case, signed an Order of Default. It cannot be gainsaid that the Order of Default was properly entered. Maryland Rule 2—613(b) provides: (b) Order of default. If the time for pleading has expired and a defendant has failed to plead as provided, by these rules, the court, on written request of the plaintiff, shall enter an order of default.

The request shall state the last known address of the defendant. (Emphasis supplied). As the well settled caselaw makes clear, however, that order of default, as opposed to an ultimate judgment of default, was only interlocutory. The interlocutory nature of such an order was made clear by Banegura v. Taylor, 312 Md. 609, 618 , 541 A.2d 969 (1988): [N]o appeal may be taken from the entry of an order of default.

Likewise, an immediate appeal could not have been taken from the denial of Banegura’s motion to strike the default order. That order was interlocutory. (Emphasis supplied). See also O’Connor v. Moten, 307 Md. 644 , 647 n. 2, 516 A.2d 593 (1986); Adams v. Mallory, 308 Md. 453, 459-60 , 520 A.2d 371 (1987) (“[A]n order of default is no longer appealable as a final judgment.”); Curry v. Hillcrest Clinic, 337 Md. 412, 425-26 , 653 A.2d 934 (1995); Breuer v. Flynn, 64 Md.App. 409, 420 , 496 A.2d 695 (1985); Bliss v. Wiatrowski, 125 Md.App. 258, 265 , 724 A.2d 1264 (1999) (“[A]n order of default is interlocutory in nature and can be revised ³⁹⁴ by the court at any time up until the point a final judgment is entered.”); Holly Hall v. County Banking and Trust, 147 Md.App. 251, 261-62 , 807 A.2d 1201 (2002).

See also Paul Niemeyer and Linda Schuett, Maryland Rules Commentary at 469-74 (2d ed.1992). In the World of Contumacy, There Are Degrees of Contumaciousness We interrupt the narrative for a moment to place in perspective what the Mother had done wrong so as to incur the order of default. The nature of her legally inefficacious effort to file a proper response bears not, of course, on the technical actuality of a pleading failure, but on the degree of blameworthiness of that failure. The caselaw tells us that the severity of the sanction must be commensurate with the flagrancy of the procedural failure.

In Holly Hall v. County Banking and Trust, supra, this Court held that a trial judge had abused his discretion in failing to vacate a judgment by default. The appellant in that case had unquestionably been guilty of a procedural failure in that “counsel prepared responsive pleadings but ‘inadvertently’ failed to file them.” 147 Md.App. at 267 , 807 A.2d 1201 . Notwithstanding that failure, Judge James Eyler observed for us that “there was no suggestion by appellee that appellants or their counsel acted wilfully or contumaciously.” Id. There is similarly no suggestion in this case that the Mother, in failing to satisfy the certification of service requirement, “acted wilfully or contumaciously.” In that case, Judge Eyler held: In light of appellants’ showing -with respect to a defense on the merits, and considering all relevant circumstances as to whether “it is equitable to excuse the failure to plead, ” we hold that the circuit court abused its discretion in failing to vacate the order of default.

Id. (emphasis supplied). The Hearing Was Apparently Still on the Track Curiously, the Order of Default further directed that “testimony to support the allegations of the Complaint be taken ³⁹⁵ before one of the Standing Masters of this Court.” The Mother received proper notice that the Order of Default had been filed on June 4 and that she had 30 days within which to move to vacate the order. She filed no such motion.

Notwithstanding the Order of Default, which was filed on June 4, subsequent developments gave the appearance that the case was still on track for a hearing on the merits, and this may have contributed to the pro se Mother’s going procedurally astray. On July 8, a notice was sent to the parties scheduling a hearing on August 1 on the “issues of custody, visitation and child support (Default).” Also on July 8, the attorney for the Father wrote to the Mother, requesting her answers to the interrogatories that had been mailed to her on May 14. The Mother submitted her answers on July 31 and the Father utilized some of that information at the hearing on August 1. The Mother appeared at the hearing on August 1 with five witnesses, who were prepared to testify on her behalf.

The Procedural Crack of Doom At the very outset of the August 1 hearing, the trial judge, the second to make rulings in this case, advised the Mother that neither she nor any of her witnesses would be permitted to testify and that she would not be permitted to offer evidence of any kind. [COUNSEL FOR FATHER]: Your Honor, this is a Petition for, to establish custody. Mrs. Flynn was served with it. Failed to file an Answer. An Order of Default was entered on June 3, 2003.

Ms. Flynn failed to take any steps to have the Order of Default stricken. And, as a result, this case was set in for a half an hour hearing today, based upon the fact that the Default stands. THE COURT: Yes, the record should reflect that Judge Turnbull signed the Order of Default on June the 3rd. 30 days has elapsed. There’s no Motion to Strike.

There’s been no response. Do you understand what that means, Ms. Flynn? ³⁹⁶ MS. FLYNN: No sir. THE COURT: Well it means that you can’t contest anything that’s been asked, cause you didn’t answer it.

Now what are you asking for Ms. Lewis? (Emphasis supplied). At that point, even counsel for the Father balked at the sternness of the court’s position and strongly suggested 1) that the Mother should at least be allowed to proffer what her witnesses would say and 2) that the Mother should be permitted to tell the court “what she thinks about this case.” [COUNSEL FOR FATHER]: Your Honor, we were asking for [is] to be the primary physical custodian of the minor child in this case. You know, this is, this is one of these troubling situations that one of my, that one of my esteemed colleagues, Mr. Lawlor, and I were discussing, what a Default does in a case where there’s children involved and whether, the court is bound to act in the best interest of the child.

My suggestion, Your Honor, would be that perhaps that, that both sides agree to present information to the court by way of a proffer. That way then, you know, you get to hear both sides rather than having, I believe that Ms. Flynn showed up with five people who wanted to testify on her behalf today. But I would think that if she proffered to the court what each of those people would say, as well as tell you what she thinks about this case, and we would do the same thing, that you might be able to make a decision. I know that the issue of a default in a custody matter, I believe, is currently on appeal right now and has not been decided.

(Emphasis supplied). The court nonetheless remained adamant. THE COURT: Well with all due respect, your esteemed colleague, Mr. Lawlor, the court has rules that it goes by. I think that the Default Judgment in the custody cases are handled perfectly fine.

She defaults. She might have five ³⁹⁷ witnesses out there. They’re not entitled to be heard in a default. (Emphasis supplied).

The consideration of the decision to award the custody of Bryant to his Father was then very summary. The Mother was advised of her right to get an attorney and to seek to have the custody award modified. THE COURT: [T]he continued best interest of the child is what guides things. So custody’s awarded to him.

She has a right now to go get a lawyer and file a Motion for Modification of that or [a] change, because the custody of the child is always in the best interest of the child. And the court always has jurisdiction. Continuing jurisdiction. So you can file a Motion to say why it should be changed.

And why you should have custody of the child, if you’re contesting the custody. That’s what has to be done. (Emphasis supplied). There was no information offered to the court about the fitness of either parent.

The sum total of the information about Bryant consisted of 1) his age and 2) his gender. [COUNSEL FOR FATHER]: Okay. Then, Your Honor, then we would ask that you award custody, physical, primary physical custody to Mr. May. That, I believe the parties should be able to work out an access schedule among themselves. That’s what they’ve been doing for three years.

THE COURT: How old is this child? [COUNSEL FOR FATHER]: The child will be seven tomorrow. THE COURT: Is it a boy or a girl? [COUNSEL FOR FATHER]: A boy. THE COURT: A little boy. All right. [COUNSEL FOR FATHER]: And ³⁹⁸ THE COURT: Well custody’s awarded to Mr. May, subject to your right to file a Motion of Modification.

(Emphasis supplied). Again with no information from the Mother, the court ordered her to pay child support in the amount of $221.00 per month. [COUNSEL FOR FATHER]: Your Honor, in terms of child support, I’ve run guidelines. I mean Mr. May has been paying child support to Ms. Flynn. He, since that was entered, his income has changed.

And I believe her income has changed. She’s working part time. I did guidelines, I did them full time and I did them part time so the court could determine. Based upon an hourly rate, I used an hourly rate of $7.50 per hour.

Although she did advise, she answered Interrogatories yesterday and handed them to me, Your Honor, and said that, that she was making $9.00 an hour, at 25 hours a week. So child support is either $186.00 for her to pay or $221.00 depending upon whether it’s gonna be full time or part time employment. And I can, let the record reflect I’m handing her a copy of the guideline worksheets. THE COURT: All right.

Well you prepare the Order and present it to me. He gets custody of the child and the child support will be in accordance with the guidelines. [COUNSEL FOR FATHER]: Based upon full time employment? THE COURT: Yes. (Emphasis supplied).

The court’s parting words to the Mother gave the impression that she was being sanctioned, at least temporarily, because of her failure to have obtained counsel. THE COURT: Do you understand what you gotta do? MS. FLYNN: Yes sir.

THE COURT: What? MS. FLYNN: I need to file a Motion. ³⁹⁹ THE COURT: You need to get a lawyer. Okay?

When you represent yourself you have a fool for a client. Get a lawyer. Okay. (Emphasis supplied).

The Motion to Alter or Amend The default judgment was filed on August 6. Shortly after the hearing, the Mother did get a lawyer, through the Legal Aid Bureau, and, on August 18, filed a Motion to Alter or Amend the Judgment pursuant to Rule 2-534. The motion included affidavits recounting the history of the case, an explanation of the Mother’s failure to file a properly certified answer, and argument demonstrating a meritorious defense. On September 15, the Motion to Alter or Amend was denied by a third circuit court judge, without a hearing and without explanation.

The Ameliorating Flexibility of Rule 2-613(e) Our conclusion is that the circuit court applied the default judgment rule too rigidly and failed to take into proper consideration the more flexible subsections, (e) and (f), that ameliorate subsection (b)’s facial harshness. Subsection (e) builds into the default judgment procedure a discretionary flexibility in those cases in which, following an order of default, the defendant, pursuant to subsection (d), moves within 30 days to vacate the order of default, stating in that motion “the reasons for the failure to plead and the legal and factual basis for the defense to the claim.” In such a case, subsection (e) provides: (e) Disposition of motion. If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead, the court shall vacate the order. (Emphasis supplied).

To be sure, the Mother did not move to vacate the order of default within the prescribed 30 days after its entry and did not, therefore, compel the court to consider whether 1) there ⁴⁰⁰ was “a substantial and sufficient basis for an actual controversy as to the merits of the action” or 2) it was “equitable to excuse the failure to plead.” The failure of the Mother to satisfy subsection (d) by filing a motion to vacate within 30 days, however, does not preclude the court from exercising, sua sponte, its discretion to notice such issues. In Banegura v. Taylor, 312 Md. 609, 619 , 541 A.2d 969 (1988), the defendant, following the entry of an order of default against him, failed to file a timely motion to vacate. With respect to the entry of the order of default, there was no error. Banegura was personally served on October 26, 1984, a fact he readily acknowledged.

He did not respond within thirty days, and the order of default was therefore properly entered. Notice of the default was received by Banegura, yet Banegura took no action to have the default set aside within the thirty days permitted by Rule 2-613(c). His motion to strike was not filed until sixty-seven days after the entry of the default order. (Emphasis supplied).

The defendant’s failure, however, does not foreclose the trial judge’s discretionary notice of an issue if “the interest of justice” would nonetheless indicate that the order of default should be modified. Judge McAuliffe observed for the Court of Appeals: Banegura’s motion to strike, filed more than thirty days after the entry of the order of default, must be viewed as a request that the trial court invoke its authority to revise an order intended to be final in nature, but which was, in fact, interlocutory. A trial judge possesses very broad discretion to modify an interlocutory order where that action is in the interest of justice. Id.

(emphasis supplied). See also Michaels v. Nemethvargo, 82 Md.App. 294, 298-300 , 571 A.2d 850 (1990). Our point, for the moment, is not yet that the trial court, on August 1, abused its discretion, but only, as we build our syllogism, that it, at the very least, possessed the discretion to take note of the issues described in subsection (e) and was not ⁴⁰¹ precluded from doing so by the Mother’s failure to satisfy subsection (d). A court must possess discretion before it can abuse it.

That the court possessed such discretion, even under subsection (e), is the immediate premise that we are stating. Proceeding from that premise, the question will ultimately arise as to whether the court’s sua sponte obligation to consider the best interest of the child does not, ipso facto, create 1) “a substantial and sufficient basis for an actual controversy as to the merits of’ the award of custody and 2) a concomitant duty to override any order that would otherwise prevent him from receiving evidence as to those merits. Canter v. Harris, 312 Md. 371 , 539 A.2d 1127 (1988), also supports our conclusion that a trial court possesses the inherent discretion to notice the issues listed in subsection (e) notwithstanding the failure of the defendant to satisfy subsection (d). In Carter v. Harris, an order of default was entered against a defendant.

The defendant moved to vacate that order and the trial court granted the motion. This Court reversed the trial court because the motion to vacate failed to satisfy the requirement of what is now Rule 2-613(d). 71 Md.App. 257 , 524 A.2d 1250 (1987). We held: Reversal is required because appellee’s motion to vacate the order of default contained neither a legal nor a factual basis for a defense of the claim. 71 Md.App. at 263 , 524 A.2d 1250 . The Court of Appeals, in turn, reversed this Court.

It first characterized, 312 Md. at 375-76, 539 A.2d 1127 , our decision: On