UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 549 September Term, 2011 DANA W. JOHNSON v. DARIELYS PINTO Watts, Davis, Arrie W. (Retired, Specially Assigned), Salmon, James P. (Retired, Specially Assigned), JJ. Opinion by Watts, J. Filed: September 20, 2012
This appeal concerns the denial by the Circuit Court for Prince George s County of a motion filed by appellant, Dana W. Johnson, to vacate an order modifying his child support obligation and ordering him to pay an alimony arrearage to Darielys V. Pinto, appellee. Appellant noted an appeal raising two issues, which we set forth verbatim: I. Balancing [a]ppellant s First Amendment Right of due process, in light of his sworn affirmation that [a]ppellee did not properly serve him notice of the Motion for Modification, with [a]ppellee s right to request modification of an existing order of support, whether the [c]ircuit [c]ourt should have determined if [a]ppellant s constitutional rights were properly safeguarded? Or in the alternative, whether [a]ppellant has recourse to the Court of Special Appeals of Maryland to ensure protection of his constitutional right of due process in light of the [c]ircuit [c]ourt s failure to safeguard that right? II. Should [the m]aster have recused himself from the [c]ircuit [c]ourt proceedings in light of the fact that he and [a]ppellee previously worked together and was it proper for [the m]aster to grant [a]ppellee rehabilitative alimony when she did not request such in her Motion for Modification? For the reasons set forth below, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND On June 27, 1998, the parties were married in Prince George s County, Maryland. On 1 July 15, 1998, the parties had a child together, Anthony Breathand Johnson. On January 24, 2001, appellant filed a Complaint for Limited Divorce and Related Relief in the circuit court. On March 18, 2001, appellee filed an Answer to [Appellant] s Complaint for Limited Divorce and Related Relief. In an order dated April 23, 2002, the circuit court: (1) granted 1 The minor child s name was changed in the parties 2002 divorce decree from Breathand Balance Nuheritage to Anthony Breathand Johnson.
the parties an absolute divorce, (2) awarded sole legal and primary physical custody of Anthony to appellee, (3) ordered appellant to pay appellee $143 per month in child support, (4) ordered appellant to pay appellee $200 per month in rehabilitative alimony for twelve months, and (5) ordered that each party provide the other with any change in address. On October 27, 2010, appellee filed a Motion for Modification of Child Support and Other Relief, seeking: (1) an increase in the amount of child support commensurate with the Maryland Child Support Guidelines, (2) health, dental, and vision insurance for Anthony, and (3) such other and further relief as the nature of the [appellee] s cause may require and as may be just and proper. On the same day, appellee filed a request for a hearing on the motion and a request for summons to be issued to appellant. On October 27, 2010, the circuit court issued a Writ of Summons to appellant at an address on Woodbine Avenue in Philadelphia, Pennsylvania (the Woodbine Avenue address ). On November 22, 2010, according to a private process server s Return of Service, the Writ of Summons, Motion for Modification of Child Support and Other Relief, and other pertinent documents were served on appellant at the Woodbine Avenue address. Included in the Return of Service was an affidavit from the private process server stating his name, address, and telephone number, and attesting that he was over eighteen (18) years of age and [] not a party in this matter. The Return of Service described the individual served as follows: Age: 45, Sex: M, Race/Skin Color: BLACK, Height: 5'8, Weight: 200, Hair: BALD, Glasses: N[.] - 2 -
On February 14, 2011, appellee filed a Motion for Order of Default, stating that more than sixty (60) days ha[ve] elapsed since [appellant] was served and he has not filed an Answer with the [circuit c]ourt. Accompanying the Motion for Order of Default, appellee filed the private process server s Return of Service. On February 15, 2011, the circuit court entered an Order of Default against appellant. On February 22, 2011, the circuit court issued a Notice of Order of Default to appellant at the Woodbine Avenue address. On February 24, 2011, the circuit court issued a Notice of Hearing, scheduling a Modifications Hearing for March 28, 2011. The circuit court mailed the Notice of Hearing to appellant at the Woodbine Avenue address. On March 28, 2011, with a master presiding, the circuit court held a hearing, which appellant did not attend. On the same day, the circuit court mailed a Notice of the Master s Recommendations and proposed Order of Court to appellant at the Woodbine Avenue address. The proposed order stated, in pertinent part, as follows: It is by the Circuit Court for Prince George s County, Maryland, ORDERED, that [appellee] s Motion for Modification of Child Support and Other Relief filed October 27, 2010 be and is hereby granted; and it is further, ORDERED, that the Order of the Court dated April 23, 2002 be and hereby is modified to the extent that [appellant] pay to [appellee] the sum of $932.00 per month for the support of the minor child, Anthony Breathand Johnson, born July 15, 1998, commencing November 1, 2010.... ; and it is further, ORDERED, that the alimony arrearages be and hereby are assessed at $2,400.00 as of March 28, 2011; and it is further, - 3 -
ORDERED, that [appellant] is directed to pay $200.00 per month towards the arrearages until the arrearages are paid in full. The Notice stated that if written exceptions [we]re not filed on or before April 11, 2011, the attached Order w[ould] be submitted to the [circuit c]ourt for approval. Appellant failed to file exceptions to the proposed order. On April 13, 2011, the circuit court entered the master s proposed order as the order of the circuit court. On May 5, 2011, appellant filed a Motion to Vacate the circuit court s order modifying support, alleging that he was not properly served notice of [appellee] s Motion to Modify Child Support in accordance with the Constitution of the United States and the laws of the State of Maryland. On May 11, 2011, appellee filed an opposition to the Motion to Vacate. On May 18, 2011, the circuit court denied the Motion to Vacate. On May 23, 2011, appellant filed a Reply to Opposition to Motion to Vacate. In the reply, appellant argued as follows: The dispositive issue is whether or not [appellant] was provided notice [of the proceedings which are the subject of his Motion to Vacate for lack of service] in accordance with the Due Process Clause of the Constitution and served pursuant to the Maryland Rules prior to being denied his property rights.... The answer to that is no. [Appellant] was not properly served and, in fact, does not fit the physical description of the person allegedly served [in the private process server s Return of Service]. On May 23, 2011, appellant noted a timely appeal. - 4 -
DISCUSSION I. Appellant contends that the circuit court abused its discretion in denying his request to vacate the order modifying child support because he was not properly served with the Motion for Modification of Child Support and Other Relief. Appellee responds that the private process server s Return of Service is prima facie proof of valid service which cannot be rebutted by a simple denial of service. Appellee contends that the circuit court properly denied the Motion to Vacate, as appellant merely stated in the Motion to Vacate that he was not properly served without providing any evidence of a failure of service. In short, we agree. Appellate courts review the denial of a motion to vacate an enrolled judgment under an abuse of discretion standard. Bland v. Hammond, 177 Md. App. 340, 346 (2007) (citation omitted). Abuse of discretion may be found only where the decision by the trial court was arbitrary or prejudicial. See Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241 (2011). This standard is met when the decision under consideration [is] well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable. Renbaum v. Custom Holding, Inc., 386 Md. 28, 43 (2005) (citation omitted) (alteration in original). Maryland Rule 2-121(a) states the general rule as to the service of process, in pertinent part, as follows: - 5 -
Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual's dwelling house or usual place of abode with a resident of suitable age and discretion;... Service outside of the State may also be made in the manner prescribed by the court or prescribed by the foreign jurisdiction if reasonably calculated to give actual notice. (Emphasis added). If service is by delivery, the proof shall set forth the name of the person served, the date, and the particular place and manner of service. If service is made [by an individual other than a sheriff], the proof also shall set forth a description of the individual served and the facts upon which the individual making service concluded that the individual served is of suitable age and discretion. Md. R. 2-126(a)(1). If service is made by an individual other than a sheriff, the individual also shall file proof under affidavit that includes the name, address, and telephone number of the affiant and a statement that the affiant is of the age of 18 or over. Md. R. 2-126(a)(2). [A] proper return [of service] is prima facie evidence of valid service of process and a simple denial of service by the defendant is not sufficient to rebut the presumption arising from such a return. Roddy-Duncan v. Duncan, 157 Md. App. 197, 202 (2004) (citations and internal quotation marks omitted). There may, however, exist external indications that the service of process should be reviewed for irregularities. Id. at 203 (This Court held that, although there was a proper return of service, the circuit court should have reviewed service of process because the private process server - 6 -
listed the same home address as the plaintiff, indicating that the private process server was not a disinterested party.). Maryland Rule 2-321(b)(1) states the rule as to the time for filing an answer by an outof-state party as follows: A defendant who is served with an original pleading outside of the State but within the United States shall file an answer within 60 days after being served. If an out-of-state party fails to file an answer within the sixty days prescribed by Maryland Rule 2-321(b)(1), that party may be subject to an order of default pursuant to Maryland Rule 2-613, which provides, in pertinent part, as follows: (b) Order of default. If the time for pleading has expired and a defendant has failed to plead as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default. The request shall state the last known address of the defendant. (c) Notice. Promptly upon entry of an order of default, the clerk shall issue a 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. The notice shall be mailed to the defendant at the address stated in the request and to the defendant s attorney of record, if any. The court may provide for additional notice to the defendant. * * * (f) Entry of judgment.... [T]he court, upon request, may enter a judgment by default that includes a determination as to liability and all relief sought, if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (c) of this Rule was mailed.... (g) Finality. A default judgment entered in compliance with this Rule is not subject to the revisory power under [Maryland] Rule 2-535(a) except as to the relief granted. - 7 -
Maryland Rule 2-535(a) provides, in pertinent part, as follows: On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under [Maryland] Rule 2-534. [2] Returning to the instant case, we conclude that the circuit court did not abuse its discretion in denying the Motion to Vacate. On February 14, 2011, appellee filed with the circuit court a private process server s Return of Service, attesting to service of process on appellant at the Woodbine Avenue address. In compliance with Maryland Rule 2-126(a)(1), the Return of Service included the following: (1) the name of the person served, (2) the date of service, (3) the place and manner of service, (4) a description of the individual served, and (5) the facts upon which the process server determined that the individual served was of suitable age and discretion. The private process server s Return of Service constituted prima facie evidence of valid service. Roddy-Duncan, 157 Md. App. at 202. In the Motion to Vacate, appellant alleged only that he was not properly served, and that he first learned of the motion upon receiving correspondence from the circuit court 2 Maryland Rule 2-534 provides, in pertinent part, as follows: 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. - 8 -
3 clerk s office. This denial of service, however, is not sufficient to rebut the presumption arising from [] a [proper] return of service. Id. Upon review of the record, we discern no external circumstances indicating that service of process should have been reviewed for irregularities. It is evident from the record that the Motion for Modification, the circuit court summons, the Notice of Order of Default, the Notice of Hearing, and the proposed Order of Court were all sent to the Woodbine Avenue address. This is the same address which appellant listed as his current address in the Motion to Vacate. The record reflects that appellant provided no evidence in the circuit court that he was not properly served with the Motion for Modification. We perceive no abuse of discretion in the circuit court s denial of the Motion to Vacate. II. Appellant contends that the master presiding at the March 28, 2011, hearing should have recused himself, as the master had previously worked with [a]ppellee[.] Appellant argues that the master s bias was evident in the order that appellant pay an alimony arrearage when appellee did not request such relief in her Motion for Modification. Appellee responds that the recusal issue is not properly before this Court because it was not raised in the circuit court. Alternatively, appellee contends that the issue of recusal 3 Appellant argues before this Court that he attested that he did not fit the physical description of the person allegedly served by [a]ppellee s third party agent. Appellant made this allegation, however, in the Reply to Opposition to Motion to Vacate filed on May 23, 2011, five days after the circuit court denied the Motion to Vacate. - 9 -
is not relevant because the final order of the circuit court was issued by a circuit court judge who had no prior relationship with appellee. Maryland Rule 9-208(a)(1)(H) permits a circuit court to refer modification of an existing order or judgment as to the payment of alimony or support to a master for domestic relations. [T]he master shall prepare written recommendations, which shall include a brief statement of the master s findings and shall be accompanied by a proposed order.... Promptly after notifying the parties, the master shall file the recommendations and proposed order with the circuit court. Md. R. 9-208(e)(1). Within ten days after recommendations are placed on the record or served [on the parties], a party may file exceptions with the clerk.... Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the circuit court finds that justice requires otherwise. Md. R. 9-208(f) (emphasis added). [I]f exceptions are not timely filed, the circuit court may direct the entry of the order or judgment as recommended by the master. Md. R. 9-208(h)(1)(B). In this case, appellant failed to raise an issue as to the master s recusal in the circuit court. Appellant did not attend the hearing over which the master presided, and, thus, made no motion at that hearing that the master recuse himself. Following the hearing, appellant failed to file exceptions to the master s proposed order an order which appellant concedes he received from the circuit court. Pursuant to Maryland Rule 9-208(f), in failing to file - 10 -
exceptions to the master s recommendations, appellant waived both the issue of the master s recusal and the issue of the master s alimony order. We note that, in the Motion to Vacate the circuit court s order, appellant failed to raise either the issue of the master s recusal or the alimony award. Maryland Rule 8-131(a) provides that, [o]rdinarily, 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[.] As neither the recusal nor the alimony award matters were raised in or decided by the circuit court, the issues are not preserved for appeal. Accordingly, this Court shall not address the matters. JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. - 11 -