Wells v. Wells

DEBORAH S. EYLER, Judge. The Circuit Court for Charles County entered an order of default against Anita Wells (“Anita”), the appellant, in a divorce and child custody action brought against her by Michael Wells (“Michael”), the appellee. Following a master’s hearing, which Anita did not attend, the court entered a default judgment of absolute divorce and granted custody of the parties’ child to Michael. Anita thereafter filed a motion to vacate the order of default and a motion for new trial or to alter or amend the default judgment of divorce.

Without holding a hearing, the court denied the motions. On appeal, Anita asks whether the court abused its discretion in denying her motions. For the following reasons, we shall vacate the judgment and remand this case to the circuit court for further proceedings not inconsistent with this opinion. FACTS AND PROCEEDINGS Anita and Michael were married on July 9, 1996, when they were in their early thirties.

The marriage produced one child, Bradrick Wells, who was born on June 6, 1998. ³⁸⁶ During the marriage, the parties lived in Waldorf in a house Michael purchased before the marriage and that was titled in his sole name. Anita was employed as a nurse and Michael was employed as a construction project manager. On September 14, 2004, in the Circuit Court for Charles County, Michael filed a complaint for absolute divorce, custody, and other appropriate relief, alleging that Anita had committed adultery. Anita was personally served with the complaint and a summons on September 27.

She did not file an answer. When the divorce action was filed, and at all relevant times until the divorce was granted, Michael, Anita, and Bradrick were living together in the marital home. On November 3, 2004, after Anita had failed to file an answer, Michael moved for an order of default. There was no opposition filed.

The court granted the motion on November 18. A notice of default order was mailed to Anita at the marital home. Anita did not file a motion to set aside the default order. On February 17, 2005, the court issued a trial date notice, setting the case in for a master’s hearing on April 1.

The notice was mailed to each party at the marital home. On April 1, 2005, a master’s hearing was held as scheduled. Michael appeared with counsel and several witnesses. Anita did not appear.

At the hearing, Michael introduced into evidence the parties’ marriage license; the deed to the marital home; his W2 form for the prior year; and one of Anita’s recent pay stubs. Michael testified that he and Anita still were living together in the marital home, with Bradrick. He said that in early September 2004 he learned from Bradrick (who would have been six years old at the time) that Anita had “been with some other guys.” Michael “investigated” and found that “it was basically [going on] around the clock.” He learned that one of the men was Trevor Johnson, a neighbor. Michael testified ³⁸⁷ that, thereafter, he did not sleep in the same bedroom with Anita or have sexual relations with her.

Michael testified that ordinarily he works Monday to Friday, 9:00 a.m. to 5:00 p.m. He takes care of Bradrick by “put[ting] him on the bus every morning for school ... helping] him with his homework ... [and] cook[ing] his dinner as well as his breakfast.” His parents, who live across the street, take care of Bradrick in the afternoons. Bradrick loves the neighborhood where they live. Michael’s counsel asked him whether Anita had said anything when she was served with the complaint and summons.

Michael replied, “The day [Anita] got the summons she never said anything to me about it at all.” When asked whether Anita later had said anything to him about the existence of a divorce action, he responded that “she mentioned that she hadn’t heard anything from the summons lately or mentioned to a point about is she supposed to hear something.” Then, when asked if he ever saw the summons, he responded, “Yes.... It was in her glove compartment. I believe she showed it to me at first right after it was served to her by a server.” Michael called Trevor Johnson as a witness. Johnson testified that he had had a sexual relationship with Anita from late 2002 to mid-2003.

He and Anita had intercourse a “whole lot of times.” Sometimes Bradrick was present in the house at the time. Finally, Michael’s father, Clarence Wells, testified that Michael “is an outstanding father and good care giver. He cooks for [Bradrick], cleans him and takes care of him.” The master stated her findings and recommendations: I am satisfied that Mr. Wells has shown by a preponderance of the evidence that his wife, [Anita], committed adultery. That was adequately corroborated by the witness who testified here and I will recommend that the plaintiff be granted an absolute divorce on the ground of adultery. ³⁸⁸ I am satisfied by the testimony that [Michael] is a fit and proper person to have custody of the minor child and I will recommend that he be awarded custody of Bradrick Wells with reasonable rights of visitation granted to [Anita].

The child has lived with Mr. Wells in the family home and I will recommend that he be granted use and possession of that home.... I am satisfied that is in the best interest of the child. The other property the parties have acquired, if any, during the marriage has been divided in an appropriate manner. I find that Ms. Wells earns 44 percent of the total income and that her monthly child support obligation is $480.

So I will recommend that she pay that.... Beginning April 1st, 2005. I am also going to recommend that [Michael] continue to provide health insurance for the minor child as long as it is available to him at reasonable cost through his employment. A copy of the master’s findings and recommendations was mailed to Anita at the marital home.

On May 16, 2005, the court entered a judgment of absolute divorce that adopted the findings and recommendations of the domestic relations master. The judgment was mailed to Anita at the marital home. On May 24, 2005, Anita, through counsel, filed a motion to vacate the order of default and a motion for a new trial or to alter or amend the judgment of absolute divorce. In her motions, she alleged that she had been served with a complaint and summons, but that Michael had told her it was a settlement agreement.

They had a conversation the day she was served in which they decided to stay together and not to separate. Michael told her to “tear up the papers,” because he wanted to work on their marriage. She also alleged that, between September 2004 and March 2005, she and Michael ³⁸⁹ had had sexual relations multiple times, had slept in the same bed, and had carried on “all marital customs.” Anita further alleged that, other than the complaint and summons, she did not receive any documents from the court. On May 19, 2005, a deputy sheriff arrived at the marital home and asked to speak to her.

He told her that she and Michael were no longer married and that she would have to vacate the premises. She said to Michael, who was present, that they could not be divorced because they were living together “as man and wife.” Michael responded that they were divorced nevertheless, because she had committed adultery. When Anita refused to believe they were divorced, the deputy sheriff showed her the written judgment of absolute divorce. Anita alleged that she told the deputy sheriff that she had not received any mail from the court about a divorce.

At that time, Michael told her that there were items of mail awaiting her on the dining room table. That mail included correspondence from the court. Anita reacted so severely to learning that she was divorced that she was hospitalized by the sheriffs department and placed on a suicide watch. The next day, Anita returned to the marital home.

Some of her friends came over to help her pack her belongings. They found a box in the house that contained other pieces of mail from the court, addressed to Anita and unopened. According to Anita, it was the parties’ practice for Michael to retrieve and sort the mail. She alleged that, unbeknownst to her, Michael had been “usurping” her mail from the court.

The allegations in Anita’s motions were supported by her own affidavit. In advancing her motion to vacate order of default, Anita argued that Michael never served her -with his motion for order of default; the order was procured by Michael’s fraud, and his further fraud prevented her from timely moving to vacate it; she had a meritorious defense to the grounds for divorce (condonation); she had a meritorious defense to Mi ³⁹⁰ chael’s claim for custody; and she acted with due diligence and good faith in moving to vacate the order. In support of her motion for new trial, Anita argued that Michael had prevented her from participating in the master’s hearing, by intentionally misleading her and deliberately intercepting her mail; that Michael’s conduct deprived her of the opportunity to address his filings and motions; and that equitable considerations mandated a new trial. Finally, in support of her motion to alter or amend, Anita argued that justice mandated opening the judgment to receive additional evidence about Bradrick’s best interests; Michael’s condonation of her alleged adultery; the value of the equity in the marital home, which she alleged was partially marital; other marital property; and the parties’ salaries.

She further argued that justice required that the court amend the judgment or enter a new judgment because the marital property issues were not resolved; it is in Bradrick’s best interest for Anita to have, at least, a specific visitation schedule; it is in Bradrick’s best interest for the court to reassess the amount and initial payment date of the child support; and the issue of alimony was not resolved. Anita asked the court for hearings on all of her motions. On June 13, 2005, Michael filed oppositions to Anita’s motions. He denied that Anita ever mentioned the complaint and summons to him or that he ever told her to tear them up because he wanted to work on their marriage.

He asserted that Anita should have known that the papers were not a separation agreement because one clearly was a complaint for divorce. He also asserted that he and Anita had not had sexual relations since September 2004, when he discovered her adultery, and that he had slept in a separate bedroom since then. Michael also alleged that Anita had received all of the mail sent to her by the circuit court but that she routinely did not open her mail or respond to it. He added that, because Anita works the nighttime shift, she was home during the daytime when the mail would have arrived.

Michael further alleged ³⁹¹ that Anita was employed during the entire marriage, was not the primary caretaker of Bradrick, and had never made payments on the mortgage. Michael submitted his own affidavit and an affidavit by his father in support of his allegations. Michael argued that he was not required to serve Anita with his motion for order of default because she had been served with the complaint and summons and had received all correspondence from the court; therefore, there was no basis for the court to vacate the default order. He argued that the court should not alter or amend the judgment because an award of alimony would not be appropriate given that the marriage only was of eight years’ duration and Anita is employed in a skilled profession; the house was titled in his sole name, Anita never made payments on it, and she did not deserve a monetary award; and the amount of the child support award was reasonable and any error in the initial payment date was de minimis.

On June 15, 2005, without holding a hearing, the circuit court denied Anita’s motions. Anita noted a timely appeal. DISCUSSION Anita contends the trial court abused its discretion by denying her motion for new trial and to vacate the default judgment, under Rules 2-533, 2-534, and 2—613(g). She argues that her affidavit presented evidence that Michael committed fraudulent acts that deprived her of the right to participate in the trial.

She also points out that Michael’s testimony during the master’s hearing was inconsistent with respect to what happened to the summons and complaint after she was served, which shows lack of credibility on his part; and that the court erred in setting a date for the commencement of child support, because she was living in the marital home until May 19, 2005. ³⁹² Alternatively, Anita argues that at the very least the court abused its discretion by not holding an evidentiary hearing on her motions. Michael responds that the court properly exercised its discretion in denying Anita’s motions because her allegations were inconsistent as to whether she thought the complaint was a complaint for divorce or a separation agreement, and the number of times she and Michael had intercourse after the complaint was filed; and that the evidence she presented in support of her motions could not prove fraud by a clear and convincing standard. He also maintains that any error by the court with respect to the commencement date for child support was de minimis. In Maryland, a default judgment is “considered more akin to an admission of liability than to a punitive sanction.” Curry v. Hillcrest Clinic, Inc., 387 Md. 412, 434 , 653 A.2d 934 (1995).

Unlike default judgments in some other states, a default judgment in Maryland “ ‘is not meant to be a punitive measure that penalizes a party for breaching a procedural regulation.’ ” Holly Hall Publ’ns v. County Banking & Trust Co., 147 Md.App. 251, 262 , 807 A.2d 1201 (2002)(quoting Royal Ins. Co. of America v. Miles & Stockbridge, P.C., 133 F.Supp.2d 747, 768 (D.Md.2001)). Instead, “Maryland law ... does not weigh the balance so heavily against the truth seeking function of adversary litigation.” Curry, supra, 337 Md. at 434 , 653 A.2d 934 . “[T]he Maryland Rules and caselaw contain a preference for a determination of claims on their merits; they do not favor imposition of the ultimate sanction absent clear support.” Holly Hall Publ’ns, supra, 147 Md. App. at 267 , 807 A.2d 1201 . Rule 2-613 governs the procedure for default judgments.

It provides that, when the time for pleading has expired and the defendant has failed to plead, the court, on written motion of the plaintiff, shall enter an order of default, which shall be mailed to the defendant. The defendant may move to vacate the default order within 30 days of its entry. Md. Rule 2-613(b), (c), and (d). “If the court finds that there ³⁹³ is 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.” Md. Rule 2-613(e). Thus, the court must grant the motion to vacate if the defendant makes the necessary showing under the rule.

Carter v. Harris, 312 Md. 371 , 539 A.2d 1127 (1988); Holly Hall Publ’ns, supra, 147 Md.App. at 267 , 807 A.2d 1201 . If a motion to vacate has not been filed, or has been filed and denied, the court, upon request, “may enter a judgment by default that includes a determination as to liability and all relief sought.” Md.