Tidler v. Tidler

² Liss, J., delivered the opinion of the Court. This is an appeal from an amended order and decree entered on November 5,1980, by the Circuit Court for Prince George’s County, Maryland, in Equity, wherein the chancellor terminated the appellant’s continuing right to support and maintenance for herself pursuant to a modified order and decree entered on July 1, 1977, in another proceeding between the parties. The amended order and decree further reduced the amount of support the appellant was receiving for three minor children from $1700 each month to $1350 each month, effective November 1,1980, and awarded appellee’s attorney a counsel fee of $1000 to be paid by the appellant. The appellant herein, Carmen D. Tidier, and the appellee, Harold S. Tidier, are formerly husband and wife.

They were married in 1959 and had four children, two of whom are still minors. On August 15, 1978, the parties were divorced by a decree entered in the Circuit Court for Prince George’s County, Maryland. The decree required appellee to continue support payments for appellant and the minor children in accordance with the provisions of a modified order and decree entered in Equity No. DR74-2958 in the Circuit Court for Prince George’s County, Maryland, on July 1,1977. That decree required the appellee to pay appellant the sum of $1400 each month for her support and maintenance and the sum of $2100 each month for support for the then four minor children of the parties.

On October 31, 1979, an order was entered in the proceeding below establishing a visitation schedule and dividing between the parties certain personal property owned jointly by them. The order also reaffirmed the support provisions contained in the modified order and decree entered on July 1, 1977, in Equity No. DR74-2958. No further legal proceedings occurred in the court below until August 26, 1980, when the appellee herein filed a petition for order to show cause with reference to visitation. On September 15, 1980, an order to show cause was entered with respect to the petition with reference to visitation.

The ³ order scheduled the petition for hearing on October 30,1980 in the Circuit Court for Prince George’s County, Maryland. The order to show cause, by its own language, required service of the petition and order to show cause upon the appellant, Carmen D. Tidier, on or before the 1.7th day of October, 1980. On September 19, 1980, the appellee filed a petition for modification of decree, and on September 26, 1980, an order to show cause was filed with respect to that petition. The order to show cause was scheduled for hearing on the same date as the hearing on the petition with reference to visitation.

The order further required service of a copy of the petition and order to show cause upon the appellant, or her attorney, Walter W. Johnson, Jr., Esq., on or before October 7, 1980. Several letters were thereafter exchanged between counsel for the appellee and the chancellor. Counsel advised the chancellor that he was having some difficulty in obtaining service of the show cause orders on the appellant, as she had apparently relocated herself and the children to Puerto Rico. The chancellor advised counsel that in the alternative it was necessary to serve the appellant’s attorney of record, but that no attorney of record was available and therefore they should serve the orders upon the appellant in Puerto Rico by mail.

Counsel for the appellee subsequently filed a certificate of service certifying that on October 8, 1980, he mailed both a copy of the show cause order to modify the decree and the show cause order with reference to visitation to Walter W. Johnson, Jr., Esq. There is nothing in the record to indicate that any attempt was made to serve the appellant in Puerto Rico by mail. On October 30, 1980, both show cause orders were called for a hearing before the chancellor. Neither the appellant nor her attorney appeared for the hearing.

Appellee acknowledged having received a letter addressed to him from the court suggesting that he attempt service upon the appellant by mail. However, appellee represented to the chancellor that the appellant was "gone for good” and that he did not know whether Mr. Johnson intended to appear on ⁴ behalf of the appellant. The chancellor then asked appellee’s counsel the following question: THE COURT: Do you want to take a teaspoonful’s worth of testimony about these things? Counsel for the appellee then called his client to the stand, who testified with regard to the status of the older children and stated to the court that appellant had moved permanently to Puerto Rico with their children.

The chancellor then asked the appellee if he knew anything about the living circumstances of the appellant, to which he replied: Well, when she moved to Puerto Rico she sent me a letter some time after she was down there, telling me that she had moved permanently to Puerto Rico, and gave me the address down there. The address is the same address that I had for her mother and father in Puerto Rico, which is Bayamon, which is a suburb of San Juan. Appellee conceded that he had an address for the children in Puerto Rico and stated that he had no contact with them since they left the Continental United States. Appellee also testified that he did not think he should be required to continue to pay alimony to appellant because "she is perfectly capable of supporting herself,” and that he had been paying his wife alimony and support for six years and "that’s long enough.” No testimony was offered to show the fundamental status of the parties or to demonstrate any change in the status of the parties which would justify the appellee’s request that the payment of alimony be terminated.

The chancellor then found that the evidence showed that appellant had removed herself from the home where she lived with the children and had returned to her homeland. The chancellor stated he would enter an order "relieving him [the husband] of the necessity of paying any further alimony, effective November 1, 1980.” In addition, the chancellor reduced child support payments in the amount of $350 per month on the basis that since the last order for ⁵ support in the case, one of the minor children had reached the age of majority. The record is devoid of any testimony as to what support payment was necessary to provide appropriate support and maintenance for the remaining minor children. The chancellor commented that the wife "might well be in contempt” of the visitation order previously entered by the court and suggested the only way the visitation order could be enforced would be to hold up support payments for the children. 1 In furtherance of that conclusion, the court ordered that unless the children were sent to the United States to visit with the appellee for a month during the summertime, the court would direct that two months’ payments be withheld from the support ordered by the court.

Finally, the chancellor ordered appellant to pay appellee’s counsel the amount of $1000 as a contribution toward the husband’s counsel fees. He further directed that the award be entered as a judgment and be impressed as a trust upon appellant’s interest in the family home. No testimony was offered as to the husband’s ability to pay or the wife’s ability to contribute to the payment of the husband’s counsel fee. In accordance with the chancellor’s oral rulings, an amended order and decree was submitted and signed by the chancellor on November 5, 1980, which terminated appellant’s $1400 monthly alimony payments, reduced the child support payments from $1700 per month to $1350 per month and awarded counsel fees to the husband in the amount of $1000.

It is from this order that this appeal was filed. Three issues are raised for determination by this Court: 1. Did the trial court improperly hold an ex parte hearing on appellee’s petitions for visitation and for modification of the divorce decree where it was contended that appellant was never properly served and never received proper notice? 2. Did the chancellor err in entering an order terminating appellant’s prior alimony decree? 3.

Has the chancellor demonstrated such hostility, bias and prejudice toward the appellant as ⁶ would require him to recuse himself from any further proceedings in this case? 1. Appellant contends that service of the two orders to show cause were never served upon her and she was therefore denied due process of law. Although it is conceded by appellant that the court had continuing jurisdiction of the subject matter of the litigation, appellant suggests that this jurisdiction did not authorize the chancellor to hold hearings on the petitions and orders which had not been served in accordance with the Maryland Rules of Procedure. Maryland Rule 321 c provides as follows: c.

Service of Copy — Exception. A copy of a motion, together with a copy of the affidavit and each supporting paper when required, shall be served upon the party affected by such motion, or his attorney of record, pursuant to Rule 306 (Service of Pleadings and Other Papers); but this section shall not apply to a motion introduced in open court either before trial, or during the course of trial, unless otherwise ordered. Rule 306 a 1 and 2 read as follows: a. Pleading or Other Paper Requiring Service. 1.

What Must be Served — When Required. A pleading, notice or other paper requiring service shall be served upon the parties to the action or upon their attorneys (except when in open court the defendant shall have obtained leave to file a plea in bar orally). A copy of any exhibit attached to a pleading pursuant to section b of Rule 301 shall also be served upon the parties to the action or upon their attorneys unless otherwise ordered by the court. 2. Clerk Not to Receive Without Proof of Service.

The clerk shall not accept or file any pleading, ⁷ notice or other paper requiring service other than an original pleading unless it is accompanied by an admission or proof of service of a copy thereof upon the opposite party, or his attorney of record. It seems clear from the exchange of correspondence between the chancellor and counsel for the appellee that counsel knew that he was going to have to serve Carmen Tidier in Puerto Rico. Counsel for the appellee filed a certificate of service, certifying that on October 8,1980, he mailed a copy of the order to show cause