ALL IS NOT FAIR IN LOVE AND WAR: A TALE OF A DEFAULT DIVORCE BY DECEPTION
In the previous Family Law blog dated March 8, 2009, this writer discussed the ability to obtain a limited divorce under Maryland law, despite the facts the parties remain in the same home. However, there are certain situations which may arise that one must protect against. One of those dangers was demonstrated in another Maryland case, Wells v. Wells, 168 Md. App. 382 (2006). Opinion by Eyler, D., J.
In this case, the parties resided in the same house with their child at all relevant times until the divorce was granted. When the sheriff advised the wife that she had to vacate the home because a divorce had been granted, the mother was shocked. She alleged in her motion to vacate the divorce decree that her husband had told her the summons was a separation agreement, that she and husband had reconciled and remained together as married persons, that she never saw the notices of hearings or default judgment and that husband had kept such notices from her as he sorted the mail. The trial court denied her motions without a hearing. The Court of Special Appeals, however, cited the authority in this matter, another Maryland case, Flynn v. May, 157 Md. App. 389 (2004) which established that on the question of child custody, “a default judgment cannot substitute for a full evidentiary hearing when a court, in order to determine custody, must first determine the best interest of the child.”
Thus, the finding of the appellate court was that the trial court abused its discretion by denying the wife’s motion to vacate the default divorce judgment as to all issues except the decision to grant the divorce. On the issue of divorce, the trial court abused its discretion by denying the wife’s motion without holding an evidentiary hearing and making a factual finding on the issue of fraud.
All is not fair in love and war. Take heed.
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