Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2319 September Term, 1999

VINCENT DAS

v. ANURADHA DAS

Salmon, Eyler, Thieme, JJ.

Opinion by Thieme, J.

Filed: June 28, 2000

The decision

genesis of

of

this Das

appeal

arises not

from to

the

strategic the suit

Vincent

("Husband")

attack

brought against him by Anuradha Das ("Wife") frontally but on the flank. His strategy is unsuccessful.

The issues that Husband presents to this Court arise from the denial of his motion to vacate a default judgment of

absolute divorce entered against him and in favor of his Wife in the Circuit Court for Montgomery County. Husband, who now

sojourns in India after spiriting away one of the couple's minor children, filed a subsequent motion to strike this order and requested a hearing. The court addressed his motion by advising

counsel that a hearing would be scheduled "on condition that Mr. Das and the minor child, Radha, are present." and asks: 1. Did the trial court abuse its discretion in denying Husband's motion to vacate the order of default? Did the trial court abuse its discretion or deny Husband due process by not granting a continuance of the divorce hearing? Did the trial court err or abuse its discretion in granting Wife an absolute divorce? Husband appeals

2.

3.

We answer "No" to these questions and explain. Facts

The parties were married on August 13, 1978, in New Dehli, India. Two children were born of the marriage: Radha, on

October 7, 1983, and Jaya, on October 3, 1985. The parties separated in January 1998, following entry of a domestic violence protective order granted to Wife by the

District Court of Montgomery County. custody of the children, who are minors.

The order granted Wife Because the order was

set to expire on January 10, 1999, the parties entered into an "Interim designed Agreement," to preserve reached the during quo voluntary for mediation and and

status

custody

living

arrangements, on December 14, 1998. Husband would three months children's not from "resume December to residence 10,

The agreement provided that in the family home" for the for

1998, S.

and

would

"deliver mediator,

passports

David

Goldberg,

safekeeping." On January 19, 1999, Wife filed an Emergency Complaint for Custody, which alleged that Husband had undermined her custody of and relationship with Radha in violation of the Interim

Agreement and that he had "abused the process to gain possession of his daughter."1 The court denied this complaint on January

1

The complaint alleged that Husband has refused to return the child from visitation, telling the Plaintiff that the child didn't want to come. He

(continued...) 2

20, after it conferred with counsel.

At this time, the parties

agreed through counsel that Wife would retain custody of the children. Notwithstanding the Interim Agreement and subsequent oral custody agreement, Husband fled the country, taking Radha with him, on or about April 16, and went to Japan, following personal service of the Amended Complaint for Absolute Divorce on March 8.2 Wife neither knew of nor consented to Husband's plans to the child from Maryland. In response, Wife filed a

remove

second Emergency Complaint for Custody.

The Emergency Complaint

stated that "Defendant [fled] to Japan with the minor child on or about April 16, 1999, where he and the child remain at this time." Husband did not oppose this complaint, because, he

alleges, neither he nor his attorney were served.

The court

granted Wife legal and physical custody of the children by an order issued April 30.

(...continued)
has encouraged the child to remain with him in violation of an existing custody agreement between the parties. He has told the Plaintiff at various times that he will bring the child back, but has not done so. The complaint then described specific incidents when Husband refused to return Radha to Wife's care at the end of visitation and when he turned Radha against her mother. On January 20, Wife filed her original Complaint for Absolute Divorce, which was never served.
2

3

Cheryl

P.

Vural

entered

an

appearance

as

counsel

on

Husband's behalf on March 25 and moved to strike Wife's divorce complaint. Neither Husband nor his lawyer, however, appeared

for the scheduling conference on April 28, despite the court's notice to husband mailed on March 19. The court denied

Husband's Motion to Strike on June 1.

Before the period for

filing an Answer began, Vural moved to strike her own appearance on May 12, and the court granted her motion without a hearing on June 3. The court immediately mailed Husband Notice to Employ

New Counsel. Husband's residential address before he left the country -- and the address used by the court for the divorce proceedings -- was 5104 White Flint Drive, Kensington, Maryland 20985. Wife

alleges in her opposition to the motion on appeal that Husband continued to pay rent for this apartment home at the time of the post-judgment motions. He used this address on the mediation

agreement executed on December 4, 1998, and his own attorney certified in her Motion to Strike Appearance that this address was Husband's "last known mailing address," but she also

explained that her "various efforts" to contact her client had been unsuccessful and she had not heard from him since April 13. Husband was thus without representation at the June 30

hearing on pendente lite child support, and Wife testified there

4

that Husband was "to the best of [her] knowledge" in India.3 The master filed a partial was sent transcript to Husband as at a the report and

recommendation, address.

which

Kensington

Moreover, because Husband did not file an Answer to

Wife's Amended Complaint, Wife requested an Order of Default on June 21, which was entered on June 30.4 The Clerk mailed Husband

a Notice of Default Order at the Kensington address. Concurrent to the custody and divorce actions, a child in need of assistance (CINA) action for Radha was wending its way through the District Court. On May 25, Nancy Karkowsky, Radha's

court-appointed attorney, filed a Praecipe notifying that court and the circuit court that, after first being taken to Japan, Radha was now "staying with the father and the family of the father's cousin . . . in Chandigarh, India." On June 2,

Karkowsky notified the courts in a Second Praecipe of what she believed to be Radha's exact address in New Delhi, India.5

The court found that Husband owed child support from the time of the complaint in the amount of $7,146.73. Wife had also requested an Order of Default on May 5, which was denied on June 2. The court gave Husband eighteen days in which to file his Answer, dating from June 1. According to the docket, a copy of this order was mailed to Husband, presumably at the Kensington address, on June 3. When no timely Answer was forthcoming, Wife filed a second Request for Order of Default, giving the court Husband's address in Kensington.
5 4

3

Karkowsky wrote: [Radha's grandfather] informed Ms. Karkowsky that Dr.

(continued...) 5

Information in both notices as to the whereabouts of Husband and Radha came from Husband's father. Copies of these notices were

sent to counsel of record for both Husband, i.e., Vural, and Wife. When the divorce trial began on August 11, Gary Segal,

Husband's attorney for employment matters, attended the hearing. He explained that he was "here for Dr. Das," but because he received little notice he was ill-prepared to enter an

appearance and undertake full representation.

Segal advised the

court that, if he were to enter an appearance, he would petition the court for a continuance; however, at the present time, he "[did] not feel that [he] would be capable of properly defending Dr. Das in this matter." The court excused Segal, noting that

any request for continuance would be denied, which "is pretty typical in our process today. cases are not continued . . . ." At repeated trial, acts Wife of testified physical that she had been subject during to the Under the best of circumstances,

and

mental

cruelty

(...continued)
Das had taken Rahda [sic] to New Delhi and that he had asked a former tenant to turn over a key to a home at B92 East of Kailash, New Delhi, India, to Dr. Das. Ms. Karkowsky inferred that Dr. Das has taken Rahda [sic] to that address. The grandfather did not have a telephone number for that address. He assured me that he sent two cables to his son notifying him that it is vital that Rahda [sic] meet with her attorney, Ms. Karkowsky, in person before a neglect hearing set for June 2, 1999.

6

marriage.

Her brother corroborated this testimony.

Husband's

father, Badri Das, who had been given power of attorney for Husband's affairs in the United States, sought to give testimony and present documents to the court. The court allowed him to

testify as to Husband's and Radha's current locale, which was different from the address Karkowsky provided.6 could not, however, recall their exact address. The elder Das The court did

not allow the father to speak otherwise on behalf of his son,7 and the testimony of Wife and her brother went untested by

cross-examination. On August 19, the court granted Wife an absolute divorce on the grounds of cruelty and excessively vicious conduct, legal and residential custody of the parties' minor children, child

The elder Das testified that his son was living in Tendegal in Panchaula, but he could not provide the exact address. The transcript shows that the elder Das believed that power of attorney conferred upon him the right to speak for his son: MR. DAS: My name is Badri Das. I'm the defendant's father, but he sent me power of attorney, and he sent me some papers to submit to the Court. THE COURT: Yes. I cannot receive anything from you, sir. Notwithstanding the fact you are his father, you are not his lawyer. He does not have a lawyer. He did not participate in this litigation, so what we call a default has been taken against him -- MR. DAS: Uh-huh. THE COURT: -- and we will proceed today. But I cannot take any papers from you, and you may not represent him in this courtroom.
7

6

7

support, use and possession of the family home and family-use personalty, a monetary award, and attorney's fees. Husband quickly retained new counsel; however, on October 19, the court denied his Motion to Vacate Order of Default, Stay Entry of Judgment, Permit Filing of Responsive Pleadings, Grant a New Trial and/or Reconsider Award of Custody, and Certain

Other Relief. styled

Husband then, on October 26, filed a pleading Unopposed Motion to Strike Order Dated

Defendant's

October 19, 1999, and Set Hearing in Open Court, to which Wife filed opposition. By letter dated November 16, 1999, the court "I do not believe a hearing on

addressed this motion by advising counsel: that there is any requirement that I

schedule

Defendant's Motion to Vacate Order. . . .

However, I will agree

to schedule a hearing on the condition that Mr. Das and the minor child, Radha, are present." on November 24. Discussion I Standard of Review The question of whether this appeal is ripe for our review has troubled us, and we flirted with dismissing it entirely. Husband appeals a judgment that appears not to be final, yet the trial court's response to his most recent motion and ministerial failure to deny this motion leave the parties in a deadlock. Husband noted a timely appeal

8

Husband's Motion to Vacate Order of Default was filed eleven days after the Judgment of Absolute Divorce was docketed.

Husband's motion was thus a request to revise a final judgment, filed pursuant to the limitations of Maryland Rule 2-535,8 rather than a motion to alter or amend a non-final judgment filed under the more generous standard of Maryland Rule 2-534.9 The instant

appeal, at least as framed by the parties, is from the trial court's denial of that motion. The problem lies with Husband's Unopposed [sic] Motion to Strike Order Dated October 19, 1999, and Set Hearing in Open Court, filed but a single day after the docketing of the court's order Under denying Rule Husband's Motion to Vacate in Order filing of Default. motion

2-534,

Husband's

diligence

this

within 10 days of judgment stayed the entry of the court's order

Maryland Rule 2-535 outlines the trial court's general revisory powers and those for fraud, mistake, irregularity, newly-discovered evidence, or clerical errors. The rule allows revisions for newly discovered evidence and those allowed under Maryland Rule 2-534 to be made within 30 days of the entry of judgment. Revisions for fraud, irregularity or mistake, or to correct clerical errors may be made at any time. Maryland Rule 2-534 gives the trial court broad discretion for reopening and changing judgments within the first ten days after entry. This rule states: In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial.
9

8

9

and this appeal.

Unnamed Atty. v. Attorney Grievance Comm'n,

303 Md. 473, 486, 494 A.2d 940 (1985) ("[W]hen a motion to alter or amend an otherwise final judgment is filed within ten days after the judgment's entry, the judgment loses its finality for purposes of appeal."); see also Popham v. State Farm Mut. Ins. Co., 333 Md. 136, 634 A.2d 28 (1993). If the trial court had

denied this motion when it replied, Husband could have refiled his notice of appeal, and we would now unhesitatingly address the merits. finality Unnamed Atty., 303 Md. at 486 (if judgment loses revisory motion, "an order of appeal . . .

under

becomes ineffective, and a new order of appeal must be filed after the circuit court disposes of the motion"). however, neither granted nor denied Husband's motion. it sent by letter the following: I have reviewed Defendant's Motion to Strike Order of Court . . . . I do not believe that there is any requirement that I schedule a hearing on Defendant's Motion to Vacate Order of Default, Stay Entry of Judgment . . . . However, I will agree to schedule a hearing on the condition that Mr. Das and the minor child, Radha, are present. In reply, counsel wrote the chancellor, declining to present Husband and his daughter in court because "[t]he issues raised in the motion can be considered in large part on the record . . . and involve primarily legal grounds on which Vincent and his The court, Instead,

10

daughter are not necessarily witnesses," travel from India "is an expensive proposition," and "Radha is in school, so a trip here could be very disruptive to her education." He also

stated: Your order dated October 19, 1999, and filed October 26, 1999, denied our motion without a hearing. Unless that order is rescinded, and a hearing on the original motion set, our client must appeal the judgment in this case immediately. Husband's counsel asked the court below to docket this

correspondence and proceeded with this appeal, informing us at oral argument that he considered the Motion to Strike to have been denied. open. Although nevertheless Wife address does this not challenge our jurisdiction, 333 Md. at we 142 The docket, however, shows Husband's motion as

point.

Popham,

("Unless an appeal is from a final judgment, the appellate court does not acquire subject matter jurisdiction to review it."). We believe, however, error that the motion remains by from the open due court to to

ministerial retain

rather

than

efforts

trial

jurisdiction.

Correspondence

Husband's

counsel The

indicated his intent to move forward with this appeal.

court's denial of the Motion to Vacate Order of Default had previously settled the rights of the parties and concluded the

11

cause of action.

Davis v. Davis, 97 Md. App. 1, 10, 627 A.2d 17

(1993) (holding that final judgment must (1) be intended as an unqualified, final disposition of the matter in controversy, (2) adjudicate or complete adjudication of all claims against all parties, and (3) be recorded by the clerk pursuant to Maryland Rule 2-601) (citing Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989), aff'd, 335 Md. 699, 646 A.2d 365 (1994). The

court itself acknowledged in correspondence that it owed Husband nothing more on the Motion to Vacate Order of Default.

Patently, its offer was an effort to secure the return of the minor child to Maryland, rather than one to delay finality or appellate review. Considerations of judicial efficiency also constrain us to entertain this appeal. Between counsel's attempt to cow the

trial court into restoring to Husband that which he forfeited and the court's reply, this matter is frozen in time. Husband

is unlikely to return to Maryland, for he reasonably believes that he would incur significant liability. Cf. Popham, 333 Md.

at 142 ("A judgment is final if it is `so far final as . . . to deny to the party seeking redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.'") (quoting In re Buckler

Trusts, 144 Md. 424, 427, 125 A. 177 (1924)). 12

If we were to

remand so that Husband could withdraw his Motion to Strike, he would also take action that is arguably contrary to his

interests.

Franzen v. Dubinok, 290 Md. 65, 427 A.2d 1002 (1981)

("The law of this State is clear that the `right to an appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.'") (quoting Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531, 541 (1966)). He is thus unlikely to do so. If we

remanded suggesting that the court below deny his motion, we would be shortly faced with the significant family law issues addressed infra and, meanwhile, the parties, including Wife, Our See,

would continue to bear the significant cost of litigation. rules and policy, however, disfavor piecemeal appeals.

e.g., Md. Rule 8-131(a) ("Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal."); State v. Zimmerman, 261 Md. 11, 25, 273 A.2d 156 (1971) ("The interest of justice is best served if there are not piecemeal appeals."). By addressing the merits issues now,

we encourage their rapid resolution. 13

That the court below failed in its ministerial duties under Maryland Rule 2-601 (requiring entry, recording, and indexing of judgment) is troubling, but need not be fatal in the

circumstances of this case.

Cf. Davis, 97 Md. App. at 10-11 (no

final judgment existed where clerk entered judgment pursuant to Rule 2-601, but court had not directed such entry of a judgment as defined by Maryland Rule 1-202(n)). Maryland Rule 8-414(a)

allows us to correct errors and omissions in the record, and we hereby order pursuant to Rule 8-414(c) that Husband's Motion to Strike be deemed denied as of November 23, 1999, the date that Husband's counsel replied to the court's offer of a hearing. See Davis, 97 Md. App. at 12 (ordering correction of docket entries). Husband's appeal is from the denial of his Motion to

Vacate Order of Default, filed under Maryland Rule 2-535, not from the underlying Judgment of Divorce itself. In Re: Adoption

No. 93321055, 344 Md. 458, 475, 687 A.2d 681, cert. denied sub nom., Clemy P. v. Montgomery Dept. Of Soc. Serv., 520 U.S. 1267, 117 S. Ct. 2439 (1997). abuse of discretion. Our standard of review here is thus

See Wormwood v. Batching Systems, Inc.,

124 Md. App. 695, 700, 723 A.2d 568 (citing New Freedom Corp. v. Brown, 260 Md. 383, 386, 272 A.2d 401 (1971)), cert. denied, 354 Md. 113, 729 A.2d 405 (1999). The abuse of discretion standard 14

makes generous allowances for the trial court's reasoning. Abuse of discretion occurs "where no reasonable person would take the view adopted by the [trial] court," or when the court acts "without reference to any guiding rules or principles." It has also been said to exist when the ruling under consideration "appears to have been made on untenable grounds," when the ruling is "clearly against the logic and effect of facts and inferences before the court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result," when the ruling is "violative of fact and logic," or when it constitutes an "untenable judicial act that defies reason and works an injustice." North v. North, 102 Md. App. 1, 13-14, 648 A.2d 1025 (1994) (citations omitted). We will not reverse a ruling we review

under the abuse of discretion standard simply because we would have made a different ruling had we been sitting as trial

judges.

Instead, "[t]he real question is whether justice has

not been done," and the judgment will be reversed only if "there is a grave reason for doing so." Wormwood, 124 Md. App. at 700.

II Motion to Vacate Order of Default We hold that the trial court did not abuse its discretion in denying Husband's motion. Marching behind the banner of

Maryland Rule 2-535(b) ("On motion of any party filed at any time, the court may exercise revisory power and control over the

15

judgment in case of fraud, mistake, or irregularity."), Husband attacks fronts. because the trial court's exercise of discretion on three

First, he argues that the judgment should be vacated Wife's an counsel Order engaged in extrinsic Judgment fraud using when she

requested

of

Default

Husband's

Kensington address.

Second, he claims that the court acted with

irregularity when it granted Vural's Motion to Strike Appearance without allowing adequate time for response, as required by

Maryland Rule 2-311(b).10

Third, Husband asserts that he acted

with due diligence and good faith in moving to set aside the court's judgment. "A court. . . will only exercise its revisory powers if, in addition the party to a finding to of fraud, aside mistake, the or

irregularity,

moving

set

enrolled

judgment has acted with ordinary diligence, in good faith, and has a meritorious defense or cause of action." Tandra S. v. We shall

Tyrone W., 336 Md. 303, 314, 648 A.2d 439 (1994). parry each prong of Husband's thrust in turn.

10

Rule 2-311(b) states in relevant part: Except as otherwise provided in this section, a party against whom a motion is directed shall file a response within 15 days after being served with the motion, or within the time allowed for a party's original pleading pursuant to Rule 2-321(a), whichever is later. . . .

Maryland Rule 2-321(b)(5), which lists exceptions to Rule 2-321(a), states that "[a] defendant who is served with an original pleading outside of the United States shall file an answer within 90 days after being served."

16

A Extrinsic Fraud Husband argues that the default judgment was procured by extrinsic fraud because Wife's attorney filed both her first and second Requests for Order of Default supplying the court with Husband's Kensington address as his "last known address." In

doing so, he argues, she perpetrated fraud on the court, because she had actual knowledge of Husband's address in India, and she thus perpetrated a fraud on the court and prevented Husband from presenting his own favorable evidence.11 Fraud, however, must be

proven by clear and convincing evidence, and, under the instant facts, Husband has not done so. Furthermore, Husband's own

actions to evade the reach of the court and eloign his minor child in another land -- including his failure to apprise the court of his change of address once this action began -- were, in our view, the predominant causes of his inability to put on his case. The trial court can disturb an enrolled judgment after the thirty-day revisory period only upon a showing of fraud,

Wife contends that Husband did not allege fraud or irregularity in either of his post-trial motions and that we are under no obligation to entertain this issue. See Md. Rule 8-131(a) ("Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court . . . ."). Although the words "fraud" and "irregularity" do not appear in Husband's motions, the facts presented there might have allowed the court to infer, albeit after some creative thought, allegations of fraud and irregularity. We thus choose to address these issues.

11

17

mistake, irregularity, or the failure of the court to perform a duty required by statute or rule. Md. Code (1974, 1998 Repl.

Vol.),

Download Das v. Das.pdf

Maryland Law