Pettee v. Pettee

WILNER, Judge. On January 2, 1986, Helen Pettee, through her attorney, Ann Turnbull, filed a complaint in the Circuit Court for ³⁶⁴ Anne Arundel County seeking an absolute divorce from her husband Wayne. She charged Wayne with adultery and asked, in addition to a divorce, for pendente lite and permanent alimony, a monetary award based on marital property, a determination of the ownership of the real and personal property of the parties, and counsel fees and costs. Through his attorney, Thomas N. Evans, Jr., Wayne answered the complaint, denying the allegation of adultery.

Aside from some discovery, nothing much happened in the case until April 7, 1986, when a hearing was conducted on Helen’s request for pendente lite support. It was not until three weeks later, however—April 28—that the court entered a pendente lite order. The order directed Wayne to pay $950 by April 10, 1986—18 days prior to the date of the order—and thereafter to pay $750 per month, as well as to notify the court of any change of address or employment. 1 On April 22, 1986—after the pendente lite hearing but before the order was entered—Helen, again through Ms. Turnbull, filed an Amended Complaint for Support and Maintenance. She repeated her charge of adultery and complained, in addition, that Wayne had abandoned her.

But she no longer sought a divorce, either absolute or limited; nor, of course, in light of that, did she seek a monetary award based on marital property. Aside from a standard prayer for general relief, she sought only pendente lite and permanent spousal support, counsel fees, and costs. On April 29, Wayne answered the Amended Complaint and filed a Counter Complaint for Limited Divorce. In his Answer, he again denied the accusatory allegations and implied that, as Helen was 62 years of age and eligible for social security and disability benefits, she was not in need of support.

In his Counter Complaint, he charged Helen ³⁶⁵ with constructive abandonment and sought a limited divorce and a monetary award. Helen moved to dismiss the Counter Complaint by reason of Wayne’s refusal to answer an interrogatory inquiring into his alleged adultery. On July 17, 1986, the court granted her motion and dismissed the Counter Complaint unless Wayne answered the interrogatory by August 13. There is no indication that he did so, and so the Counter Complaint stood dismissed, leaving open only Helen’s Amended Complaint and various motions concerning Helen’s request for a lien on Wayne’s salary from the Federal Government.

Judge Morris Turk conducted an evidentiary hearing on the Amended Complaint in October, 1986. On January 22, 1987, Judge Turk entered an Order directing Wayne to pay permanent alimony of $875 per month, commencing December 31, 1986, and continuing, subject to further order of the court, until the death of either party or Helen’s remarriage. The order further directed Helen to make the mortgage payments on the family home, required each party to pay half the taxes on that home, directed Wayne to pay $1,000 toward Helen’s counsel fee and $1,038 toward an alimony arrearage, required him to keep Helen covered under his existing medical insurance, and directed that he pay “the costs of this proceeding.” That order clearly disposed of the Amended Complaint; no claim or prayer for relief in that pleading was left unresolved. At some point after the hearing but before the entry of Judge Turk’s order, Wayne retired from Federal service and moved to Colorado.

In January, 1987, through Mr. Evans, he informed both the court and Ms. Turnbull of his new address. The proceeding now before us commenced on August 8, 1987, with a petition by Helen, through Ms. Turnbull, to hold Wayne in contempt of court for failure to pay both the full amount of the alimony ordered by Judge Turk and his share of the real estate taxes. Upon that petition, the court signed a show cause order directing Wayne to appear in person on September 17, 1987, and show cause why he should not be held in contempt of court, provided that a ³⁶⁶ copy of the petition and order “are served upon Thomas N. Evans, Jr., Esquire, attorney for Defendant, WAYNE PET-TEE, on or before the 31st day of August, 1987.” According to the docket entries, a copy of the petition and order was mailed to Mr. Evans on August 7 “for service on WAYNE PETTEE.” For whatever reason, no response was made by either Mr. Evans or Wayne, and so, on September 22, another show cause order was issued. This one, also directed to be served on Mr. Evans, ordered Wayne to appear in person before the court on October 26, 1987.

A copy of that order was mailed to Mr. Evans on September 25, 1987. In response to the second show cause order, Mr. Evans wrote to Ms. Turnbull, pointing out that, as more than 30 days had elapsed since the final order in the case, under Md.Rule 2-132 he was no longer counsel of record for Wayne, and that he had no obligation to attend the hearing scheduled for October 26. Mr. Evans, in fact, did not attend the hearing; nor did Wayne. When the court, through Judge Goudy, inquired about that, Ms. Turnbull asserted: “MS.

TURNBULL: We served the Show Cause Order on his counsel of record who is— COURT: Was his counsel of record in the case more than thirty days after the last? MS. TURNBULL: The case is pending, there’s no last Order that— COURT: Oh, there’s no last Order? MS.

TURNBULL: It’s a pendente ... it’s a pendente lite Order. COURT: All right. Oh, wait a minute. MS.

TURNBULL: Judge Turk’s Order of January twenty-two is a pendente lite Order. COURT: And he wasn’t struck? MS. TURNBULL: No, he hasn’t.

He’s taken that position, that he’s not in the case anymore but he’s not ³⁶⁷ stricken and he hasn’t done anything to get out of the case and the case is pending. COURT: Okay, that’s my question. MS. TURNBULL: So, we’ve got ... we have, I believe, valid service on Mr. Pettee who’s residing in Colorado.” (Ellipses in original.) Accepting Ms. Turnbull’s representation that the January 22 order was merely a pendente lite order and that the action had not bee concluded, Judge Goudy proceeded with the hearing and, based on testimony given by Helen, entered an in personam judgment against Wayne for $7,460 and issued a bench warrant for his arrest.

This appeal followed, Wayne arguing that (1) the January 22, 1987 order was a final judgment in the case, (2) under Md.Rule 2-132(d), Mr. Evans’s appearance as counsel for Wayne automatically terminated 30 days later, and (3) service of the show cause order on Mr. Evans was therefore ineffective. Helen, through Ms. Turnbull, persists in her claim that the action was not concluded by the January 22 order. She tells us in her brief: “This case began as a divorce case. As was obvious to the circuit court, and surely is obvious to this Court as well, the only reason that Helen Pettee amended her original Complaint for Absolute Divorce to a Complaint for Support and Maintenance was to prolong her ability to remain in the family home, which was virtually the only asset of the marriage, and which would be subject to sale immediately upon the issuance of any Judgment of Divorce.

Equally obvious is the fact that Wayne Pettee, now residing in Colorado, has failed to come back to Maryland, obtain his divorce and force the sale of the house, only because of his reluctance to submit to the jurisdiction of the state under the circumstances of his contemptuous failure to pay alimony. The most obvious point in the whole case is that it is not over.” ³⁶⁸ With respect to that assertion, we observe that what may be obvious to Helen or Ms. Turnbull is not at all obvious to us. We have no idea why Helen decided to withdraw her request for divorce and proceed, through an Amended Complaint, to seek only spousal support; nor does anything in the record suggest a reason. We know only that she was in her early sixties at the time and that she clearly, and presumably with Ms.