Gray v. Gray

Per Curiam. Appellant’s petition, filed July 21, 1964, seeking to set aside a decree granting his former wife, appellee, a divorce a vinculo matrimonii on July 30, 1957, was dismissed by the Circuit Court for Allegany County on its merits, the court finding nothing in the record to justify the rescission of the divorce decree rendered some seven years previously. Appellant’s petition alleged that the divorce decree was procured by fraud in that appellant was not aware of the date set for the hearing of the matter before the chancellor and the appellant was thereby denied his right to contest the same. Notwithstanding the issue of laches on the part of the appellant, the record is completely devoid of any evidence to support appellant’s allegations of fraud.

At the time the appellee filed her bill of complaint for a divorce a vinculo matrimonii February 6, 1956, the appellant was living in Norfolk, Virginia. An order of publication was duly filed the same day and a decree pro confesso signed April 11, 1956. Subsequently appellant filed a petition for leave to file an answer admitting receipt of a copy of the bill of complaint and knowledge of the decree pro confesso. Leave was so granted and on May 10, 1956, appellant filed an answer through his attorney.

A hearing was scheduled for July 29, 1957, and notice thereof was given to appellant’s attorney. On the morning of the hearing, appellant sent the court the following telegram: “JUDGE YOUR HONOR PLEASE POSTPONE MY DIVORCE CASE UNTIL ANY DATE AFTER LABOR DAY IN ORDER FOR ME TO DEFINE MY CONSTITUTIONAL RIGHTS OF LAW, AND I REQUEST ATT. RYAN ALSO — ” ⁷¹⁵ Other than requesting a postponement, which was denied, the telegram is ambiguous; however, it makes no mention of Mr. Ryan’s being discharged before the date of the hearing, as appellant now alleges. Counsel for the appellant appeared at the hearing and made a motion to strike his appearance midway through the proceedings, which was denied as being unseasonably made and the divorce was granted.

Appellant was notified of the granting of the divorce decree by his attorney and he further, in proper person, endeavored to note an appeal by telegram, but no further action was taken and the appeal was never properly perfected. At the hearing on the petition to set aside the decree, appellant testified that he came to Cumberland from Norfolk on July 29, 1957,