Miller v. Miller

ROBERT M. BELL, Judge. In 1969, after nearly 11 years of marriage, Joan Wood Miller (wife), appellee/cross-appellant, filed an action in the Circuit Court for Prince George’s County for a divorce a mensa et thoro from James Arthur Miller (husband), appellant/cross-appellee. She alleged constructive desertion. The court denied the divorce; however, on October 29,1970, it awarded the wife custody of the parties’ four minor children who then resided with her.

The husband was ordered to pay $250.00 per month in child support. This amount was not broken dow;n on a per child basis. The husband did not make the payments when due. Prior to 1973, the wife initiated at least one contempt action against the husband, alleging his failure to comply with the child support order.

In 1973, she initiated a criminal non-support action in Prince George's County. The husband was found not guilty. Thereafter, no further attempts were made in Prince George’s County to enforce the child support order. Consequently, the amount of the arrears, at the time of the present action, had not been determined by any Court.

In August, 1984, the wife filed in the Circuit Court for Worcester County a bill of complaint for a divorce a vinculo matrimonii, in which she also sought alimony, child support arrearages, distribution of marital property, and a monetary award. At that time, all of the children, with the exception of the youngest child, were over 21 years of age. The youngest child was 18 years old as of April 18, 1984. When the husband did not file an answer to the bill of complaint, the wife moved for a default judgment on Febru ⁵ ary 6, 1985, and a copy of the motion was forwarded to the husband.

The court entered the order of default on February 13, 1985, and the husband was notified of the court’s action. The husband, on March 19, 1985 1 filed a Motion To Strike Or Vacate An Order of Default. Following the filing of the wife’s opposition and a hearing, held on April 15, 1985, the court denied the husband’s motion as to the grounds for divorce, but allowed all other contested matters to be litigated at trial. The husband did not thereafter file an answer or other pleadings denominating and crystalizing the issues he proposed to raise and/or litigate.

Testimony was taken and arguments heard on September 24, 1985. Following receipt of memoranda from counsel concerning the issues raised at trial, the trial judge issued an Opinion and Decree on January 2, 1986. He ruled that: (1) the Marital Property Act did not apply; (2) the wife be granted an absolute divorce; (3) a sale in lieu of partition of the marital home located in Prince George’s County be ordered; (4) the husband’s request for contribution from the wife for principal, interest, taxes, and insurance payments made by the husband during the separation be denied; (5) the wife was entitled to a judgment for child support arrearages; (6) child support payments were to be paid by the husband until the youngest child reached the age of 21; and (7) the husband pay all of the wife’s counsel fees and the costs of the suit. Both parties appealed from the judgment thus entered, raising, between them, seven issues: 1.

Whether the trial court erred in refusing to vacate a default judgment while simultaneously fashioning a bifurcated implementation of the judgment that is without precedent in either rule or law, and, as such, constituted an abuse of discretion that denied the appellant an opportunity to plead a legitimate ⁶ grounds for divorce that would serve as a substantial and sufficient basis for an actual controversy as to the merits of the action. 2. Whether the trial court’s refusal to vacate default judgment constituted an abuse of discretion that denied the appellant the right to challenge the. venue of the court as to the sale in lieu of partition of the property of the parties, and as to child support arrearages. 3. Whether the trial court erred by ordering the appellant to pay child support payments beyond the age of majority when the appellee never pleaded before the court the issue of continued lump sum child support payments. 4. Whether the trial court erred in denying the appellant’s request for contribution from the appellee for payments previously rendered by the appellant for principal, interest, taxes and insurance on the marital abode of the parties. 5.

Whether the trial court’s order directing the appellant to pay all of the appellee’s counsel fees and costs of suit constituted an abuse of discretion. 6. Whether the trial court erred in limiting the judgment for child support arrearages to a period commencing one year prior to the filing of appellee’s complaint. 7. Whether the trial court erred in ruling that the Marital Property Act was not applicable to the case. Although we find no error in the court’s ruling on the default judgment, we hold that the Marital Property Act does apply to this case.

This necessitates that we discuss, for the guidance of the trial court on remand, the issues relative to the award of counsel fees and the costs of suit, the age of majority of the minor children, contribution, and the period of limitations for the recovery of child support arrearages. ⁷ Default Judgment Although the default judgment was entered by the court on February 13, 1985, the husband’s motion to strike or vacate was not filed until March 19, 1985, 34 days later. In the motion, the husband proffered the existence of grounds, 2 i.e., desertion and abandonment on the part of the wife, which would entitle him to a divorce. He also proffered that, were the default judgment stricken, he would allege these grounds in an answer which he would then file. Furthermore, the husband proffered that if permitted, he would move to strike the wife’s pleadings or, in the alternative, move for a change of venue because prosecution of the case in Worcester County “represents bad faith or unjustified proceedings.” Thus, asserting that he had a meritorious defense, he prayed that the default judgment be vacated or rescinded and the issues joined for trial.

Citing its untimely filing, the wife moved to strike the husband’s motion, to which the husband responded by filing Defendant’s Opposition To Plaintiff’s Motion To Strike and/or Motion To Extend Time For Filing Defendant’s Response To Order Of Default. Although admitting that his motion was untimely filed, 3 and acknowledging that the motion to extend time was filed after expiration of the specified time, the husband urged that the court nevertheless consider the motion because “the failure to file ... was due to excusable neglect” pursuant to Maryland Rule 1- ⁸ 204(a)(3). 4 The wife’s motion to strike was denied because although “[the husband’s motion] was two or three days late”, the court felt that: “... the Motion to Vacate should be considered by the Court. In order to consider the Motion to Vacate, I have got to rule against the Motion to Strike____ On procedural grounds, I am not going to kick the defendant out of court, so to speak, on the issue, because his counsel was two or three days late. After conducting a hearing on the Motion to Vacate, the court denied the motion as to the grounds for divorce.

It reasoned that the husband’s failure to answer was an admission that an involuntary separation did occur on May 1, 1969, and continued to the date of the hearing. On the other hand, it specifically determined that the husband was entitled to oppose the relief requested by the wife; thus, the court ruled that all issues, other than grounds for divorce, would be litigated at trial. The husband urges that this approach was error since his motion clearly delineated, and the trial court’s decision confirms, that he too had grounds for divorce. And, he says, his grounds were an absolute defense to the wife’s grounds.

The husband also complains that Worcester County was not the proper venue in which to try this divorce action, particularly those aspects of it relating to child support arrearages. Finally, the husband argues that the trial judge abused his discretion when he refused to find an agreement between counsel to the effect that the husband’s counsel would be given ten (10) days notice before the wife’s counsel filed a motion for default judgment. ⁹ Maryland Rule 2-613 permits the entry of a default judgment against a party when that party has failed to plead “as provided by these rules” and “notice informing the defendant that the order of default has been entered and that the defendant may move to vacate the order within 30 days after its entry” has been mailed to the defendant or his counsel of record. Rule 2-613(a) and (b). The party against whom an order of default has been entered “may move to vacate the order of default within 30 days after its entry.

The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim.” Rule 2-613(c). “If a motion was not filed under section (c) of this Rule or was filed and denied, the court, upon request, may enter a judgment by default if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (b) of this Rule was mailed. If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings, or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury.” Rule 2-613(e). Because the motion was filed more than thirty days after entry of the order of default, the court need not have considered it. In any event, the court did not err in ruling on the husband’s motion to vacate.

Concerning the grounds for divorce, as the wife points out, the fact that the husband had grounds for divorce does not in any way affect the wife’s grounds. In short, the husband’s grounds would not nullify the wife’s entitlement to a divorce on her grounds. See Maryland Fam.Law Code Ann. § 7-103(b), (c), (d), and (e). Nor does the husband’s venue contention have merit.

Even though the court specifically limited the denial of the ¹⁰ motion to the grounds for divorce, the husband did not thereafter raise the venue issue. Maryland Rule 2-322(a) provides: The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process. If not so made and the answer is filed, these defenses are waived. At no time, either before or after judgment was entered, did the husband file a motion to dismiss any aspect of the wife’s complaint for lack of venue.

Thus, despite having very clear direction from the court as to the manner in which the case was to proceed, the husband simply did not challenge venue; nor did he file a counter-claim. See Maryland Rule 2-331(a). Section (d) of that rule provides: If a party files a counter claim or cross-claim more than 30 days after the time for filing that party’s answer, any other party may object to the late filing by a motion to strike filed within 15 days of service of the counterclaim or cross-claim. When a motion to strike is filed, the time for responding to the counterclaim or cross-claim is extended without special order to 15 days after entry of the court’s order on the motion.

The court shall grant the motion to strike unless there is a showing that the delay does not prejudice other parties to the action. This section thus permits a party to file a counter-claim more than thirty days after his answer is due, subject to the pleading being stricken at the motion of the opposite party. Therefore, the husband could have challenged and tested the parameters of the court’s ruling within the context of the Rules of Procedure. He chose not to do so.

We do not conclude that he was precluded by the trial judge from doing so. Finally, the trial judge did not abuse his discretion when he refused to find an agreement between counsel. First of all, the testimony was not undisputed that such an agreement existed. The wife’s counsel specifically denied such ¹¹ an agreement, but giving the benefit of the doubt to the husband, asserted that notice had been given in any event.

Second, the trial judge was not required to accept the husband’s version of the case. His ruling thus cannot be determined on this account to have been an abuse of discretion. Counsel Fees and Costs of Suit In his opinion and decree, the trial judge stated: “Defendant and his counsel, from the filing of the case almost to its conclusion, adopted a pattern of obstructive and dilatory tactics verging on contemptuous conduct and the Court further finds that such tactics were adopted in bad faith and without justification.” Then, relying upon Maryland Rule 1-341, 5 he awarded the wife all of her counsel fees and the cost of suit. The husband, feeling aggrieved by this action, argues that the award of counsel fees and costs was clearly erroneous.

He specifically challenges the trial court’s findings of fact as well as its failure to grant a hearing on the issue, at which his opposition to the intended sanction could have been raised. In divorce proceedings, ordinarily counsel fees and costs are to be awarded after the court has considered: “the financial resources and financial needs of both parties; and whether there was substantial justification for prosecuting or defending the proceeding”, see Maryland Fam.Law Code Ann. § 11-110(c), and taken into account the factors of labor, skill, time, and benefit. Sharp v. Sharp, 58 Md.App. 386, 406 , 473 A.2d 499 (1984); Wallace v. Wallace, 46 Md.App. 213, 229 , 416 A.2d 1317 (1980). ¹² Whether to award such fees and costs is within the “sound discretion of the trial court, and such award shall not be modified unless it is arbitrary or clearly wrong”. Gravenstine v. Gravenstine, 58 Md.App. 158, 182 , 472 A.2d 1001 (1984).

See also Maryland Fam.Law Code Ann. § 12-103, 6 pertaining to the award of costs and counsel fees in connection with child support arrearages. We observe that an award of counsel fees and costs may have been justified by application of these criteria. 7 The trial court did not, however, consider them. Maryland Rule 1-341, upon which the trial judge relied, while applicable in divorce proceedings, may be utilized only when “the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification”, it does not reach dilatory conduct of a party conducting a justifiable defense. It may be that some of the conduct of the husband, or his counsel, may have been undertaken in bad faith and/or a portion of the defense was unjustified.

As to that portion, the rule was appropriately used. On the other hand, to the extent that the husband and his counsel acted in good faith and pursued justifiable defenses, and the record reflects that they did, the court’s reliance on the rule was an abuse of discretion. The court does not, however, clearly delineate the basis for its order in this regard. We conclude that, even though there may be a basis for an award of some ¹³ counsel fees and costs pursuant to the rule, the award of all such fees and costs is, on this record, arbitrary and clearly wrong.

Gravenstine, 58 Md.App. at 182 , 472 A.2d 1001 . On remand, the court must again consider whether, and to what extent it should award fees and costs pursuant to the rule. The court may also consider applying §§ 11-110 and 12-103. Marital Property Act Relying upon Athanason v. Athanason, 48 Md.App. 231 , 426 A.2d 16 (1981) and Duskin v. Duskin, 51 Md.App. 451 , 443 A.2d 1010 (1982), the trial court ruled that the Marital Property Act, Maryland Fam.Law Code.Ann., §§ 8-201 et seq., did not apply to the case sub judice.

The trial judge opined: In this case, different grounds for divorce are alleged in a different case. However, the Plaintiff is attempting to have this Court award alimony claiming the husband was the wrongful party for alimony purposes, for the identical reasons (constructive desertion) she has already litigated in prior case # 1 in Prince George’s County. She is attempting to have this court litigate the extent of arrearages arising from the Defendant’s failure to comply with a court order for child support in prior case # 1, which assertions she generally made in hearings in prior case # 2—the criminal non support actions. It is clear to the Court that this case is but a continuation of the previously litigated divorce in Prince George’s County even though a no fault ground is now alleged.

Accordingly, the Court determines that the Marital Property Act does not apply. The wife takes the opposite position. She asserts that the cases relied upon by the court are “clearly distinguishable”. She contends that she did not delay filing for divorce in Worcester County in order to take advantage of the Act.

Furthermore, she reminds us that her prior action was resolved when the Prince George’s County Circuit Court, although granting her custody and child support, denied her ¹⁴ prayer for divorce a mensa et thoro. Therefore, she concludes, that case was not “pending” 14 years later when she filed the present action. The husband’s position is essentially that of the trial court: The only difference between Athanason and the instant case is the length of time involved. He posits in support of this position, that had the case been brought in Prince George’s County, it undoubtedly would have been given the same case number as the prior case.

We think the wife gets the better of this argument. In Athanason , this Court held that the Marital Property Act did not apply where, prior to the effective date of the Act, a bill of complaint for divorce a mensa et thoro had been filed and, thereafter, after the effective date, a supplemental bill for divorce a vinculo matrimonii, alleging the same grounds, was filed. We reasoned: We think the words “cases filed after January 1, 1979,” contained in Section 2 of Chapter 794, supra, are quite plain, sensible and free from ambiguity. Appellee filed the original case prior to January 1, 1979.

When she filed her supplemental bill in this same case after January 1, 1979, it became a part of the original case. The fact that the supplemental bill may set out a different “cause of action”, as appellee maintains, is immaterial. The statute refers not to “causes of action” but to “cases”, and we hardly think it needs citation to establish that the two are not synonymous: a cause of action is not necessarily a case, while a case must contain at least one, and often contains several, causes of action. And a supplemental bill is not a case.

In our view the Legislature’s choice of language here constitutes a clear expression of its intention to limit the effect of the “Property Disposition In Divorce and Annulment” Act to actual cases filed after the Act’s effective date, (emphasis supplied) 48 Md.App. at 234-35 , 426 A.2d 16 . Duskin involved a different factual posture. There, the plaintiff, having previously filed, prior to the effective date ¹⁵ of the Act, an action for divorce a mensa et thoro on the grounds of cruelty, which she had amended after the effective date of the Act to delete the reference to divorce a mensa et thoro, filed, also after the Act went into effect, a separate bill of complaint for divorce a vinculo matrimonii, alleging both the original ground pled and the parties’ voluntary separation. Although the defendant’s motion raising preliminary objection was denied, the separate action was consolidated with the previously filed case, then pending for trial.

We affirmed the trial judge’s refusal to apply the Act to the consolidated case. Observing that Athanason precluded application of the Act to the case filed prior to its effective date even though both parties had filed, after the Act’s effective date, supplemental or amended bills of complaint for divorce a vinculo matrimonii, we held that the trial judge did not abuse her discretion. We explained: "... when the Circuit Court for Montgomery County consolidated Equity No. 63525 and equity No. 67957, the court created one case. For purposes of analysis under Section 2 of the Marital Property Act, the original bill of complaint for that one case was the appellant’s bill of complaint filed on June 23, 1978 and never dismissed.

Just as the appellee’s supplemental pleadings became “a part of the original case”, Athanason, supra, at 234 [ 426 A.2d 16 ], so the appellant’s bill of complaint filed on July 23, 1979 became tantamount to a supplementation of her original bill of complaint. 51 Md.App. at 460 , 443 A.2d 1010 . We found support for our conclusion in the similarity between the bill of complaint filed in the second action and the original bill of complaint: “The appellant’s cause of action was adequately set forth in her original bill of complaint, and no new cause of action was interjected by the second bill of complaint. Thus, the second bill constituted nothing more than an “emanation of the same cause of action” previously asserted, and it “relates back to the time of filing of the ¹⁶ original bill ...” See Prince George’s County v. Blumberg, 44 Md.App. 79, 109-110 , 407 A.2d 1151 , rev’d on other grounds, (1979) applying this rule in the statute of limitations context____” 51 Md.App. at 460-61 , 443 A.2d 1010 . We concluded: Rather than stating a new cause of action, the appellant’s second bill of complaint differs from the original complaint only in its requested remedies, i.e. divorce a vinculo, and application of the Marital Property Act.

The appellant’s apparent motive for filing a second bill of complaint was to seek application of the Act, as indicated in appellant’s opposition to the appellee’s motion raising preliminary objection to the appellant’s second bill of complaint. The appellant requested the lower court to deny the appellee’s motion so that she could “seek ... the relief afforded by the new Domestic Relations Law of Maryland, Chapter 794, Acts of 1978”. At trial the appellant was provided an opportunity to seek such relief, but the lower court did not err in refusing to provide the appellant with the benefits of the Marital Property Act. Id., 51 Md.App. at 461 , 443 A.2d 1010 .

The factual pattern in the instant case is significantly different from that in both Athanason and Duskin . Aside from the time factor, in neither Athanason nor Duskin had the original case been resolved, either by dismissal or trial, prior to the filing of a separate case. Thus, in both cases, the prior case was “pending” when the subsequent action was taken. Here, the wife’s prior case for divorce a mensa et thoro had been tried and that relief denied.

That she was afforded some relief in that case, i.e., child custody and support, does not mean that the case was “pending” when the present case was filed. Nor does it appear that the wife chose to bring this action in Worcester County, 14 years after her original action had been brought and dismissed, with the purpose to “seek application of the Act”, a consideration of some importance in Athanason and