UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1923 September Term, 2012 DARRELL EDWARD WHITE v. TAMMY TERRELL WHITE Woodward, Hotten, Eyler, James R. (Retired, Specially Assigned), JJ. Opinion by Hotten, J. Filed: March 25, 2014
Appellant and appellee were married for approximately eight years, five of which appellant spent incarcerated in federal prison. Appellee filed for an absolute divorce on the grounds of a two year separation. During trial, appellant asserted that appellee had numerous personal items belonging to appellant, which appellee denied. The Circuit Court for Baltimore City granted appellee an absolute divorce, denied appellant s request for alimony, a monetary award, and ordered appellee to return appellant s personal items to his son. Appellant filed a motion to revise judgment, which was denied. Appellant thereafter noted a timely appeal, presenting the following issue for review: 1. Whether [c]ircuit [c]ourt committed clear error when denying [a]ppellant s [m]otion for [r]evise and to [v]acate [j]udgment [i]ssued in [d]ivorce [p]roceedings without an [sic] hearing after [a]ppellant established by conclusive evidence that the [a]ppellee knowingly committed numerous instances of fraud by way of perjury which hindered adversarial process of divorce proceedings? For the reasons that follow, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY Sometime in 2002, appellant, Darrell White, was arrested for charges relating to narcotics violations. Notwithstanding his legal troubles, appellant and appellee, Tammy White, were married on May 24, 2003 in a religious ceremony in Baltimore City, Maryland. In early 2005, the parties began searching for a home. Appellee purchased a home in March or April 2005 for $417,000. Although the home was titled solely in appellee s name, the
1 parties split the down payment, which was $10,000. In early 2006, appellant entered a federal correctional institution to begin serving an eleven year sentence. On March 24, 2010, appellee filed a pro se complaint for absolute divorce in the circuit court on the grounds of a two year voluntary separation and appellant s criminal felony conviction as of February 14, 2007. She sought alimony, and restoration of her maiden name, Tammy Terrell Hurtt. In his answer, appellant asserted that appellee had committed adultery, sought half of the marital property, alimony, and the return of personal property left in the care of appellee. Since appellant was incarcerated in Georgia at the time of trial, the court granted appellant s motion to appear telephonically for the proceedings. Appellee withdrew her request for alimony at the beginning of the proceedings. To corroborate her grounds for divorce, she brought the father of her daughter as a witness. Appellant alleged that appellee committed adultery with the witness since his incarceration, a claim that both appellee and the witness denied. The court heard testimony from both parties regarding their marital property, the value of the home and the items that appellant alleged he left with appellee when he began serving his sentence. Neither party provided much evidence to support their testimony. For example, appellant contended that he had left a number of diamond rings, watches, a mink coat, and two tow trucks in appellee s care. Appellee claimed that when the 1 There was some dispute at trial as to whether they split it equally or whether appellant contributed $5,000 and appellee $3,000. Regardless, the circuit court found that the parties had both contributed to the down payment. - 2 -
police raided their home, in relation to appellant s narcotics charges, they confiscated most of his personal items and she had not seen them since. Appellant was unable to provide at trial a list of what the police confiscated, or any witnesses to testify. At the conclusion of the proceedings, the circuit court granted appellee an absolute divorce. In its divorce decree, the court addressed the statutory factors necessary to determine alimony and a marital award. Since neither party provided sufficient evidence, the court found it difficult to determine what marital property existed. The court denied appellant s request a monetary award for half of the value of the marital home. It found that the home, which was on the verge of foreclosure, had negative equity and accordingly, there was no marital property from which to grant an award. It also denied appellant s request for alimony, reasoning that since he started and owned several businesses prior to his incarceration, that he possessed the resources to do so again and support himself. The court ordered appellee to deliver appellant s mink coat to his son along with any and all of appellant s personal property still in her possession. Appellant contends that on November 9, 2011 he mailed a notice of appeal to the circuit court, expressing his intent to appeal. However, the notice of appeal was not docketed until December 8, 2011. On May 21, 2012, appellant filed a petition to reopen with the circuit court. The circuit court denied the petition without prejudice because appellant allegedly had a pending appeal before this Court, which therefore precluded the circuit court from rendering any additional rulings in the matter. After correspondence with this Court s - 3 -
Office of the Clerk, appellant was informed that his notice of appeal from December 2011 was untimely, and accordingly, there was no appeal pending before this Court. Appellant 2 then filed a Rule 2-535 motion to revise and to vacate judgment with the circuit court. The circuit court denied the motion and appellant noted a timely appeal. Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issue presented. STANDARD OF REVIEW This Court reviews an appeal of a denial of a Maryland Rule 2-535(b) motion under the abuse of discretion standard. See Thacker v. Hale, 146 Md. App. 203, 219 (2002); Gruss v. Gruss, 123 Md. App. 311, 320 (1998). A court has abused its discretion: [W]here 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 2 (a) Generally. 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 Rule 2-534. A motion filed after the announcement or signing by the trial court of a judgment or the return of a verdict but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket. (b) Fraud, Mistake, Irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity. - 4 -
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. In particular, fraud, which appellant alleges, must be proven by clear and convincing evidence. Bland v. Hammond, 177 Md. App. 340, 346-47 (2007) (quoting Das v. Das, 133 Md. App. 1, 15-17 (2000)) (internal citations omitted). DISCUSSION On appeal, appellant avers that the court erred in denying his motion to revise because 3 appellee lied during her testimony, thereby committing fraud. Maryland Rule 2-535(a) grants a circuit court complete discretion to revise a judgment within thirty days after it is entered. Additionally, Md. Rule 2-535(b) grants a court the ability to revise a judgment at any time upon a showing of fraud, mistake or irregularity. It is well settled in Maryland that pursuant to Md. Rule 2-535(b), a court may only vacate a judgment that was the result of extrinsic fraud, as opposed to intrinsic fraud. See Hamilos v. Hamilos, 297 Md. 99, 105 (1983). Intrinsic fraud is defined as [t]hat which pertains to issues involved in the original action or where acts constituting fraud were, or could have been, litigated therein. Black s Law Dictionary (5th ed. 1979). Extrinsic fraud, on the other hand, is [f]raud which is collateral to the issues tried in the case where the judgment is rendered. Id. Fraud is extrinsic when it actually prevents an adversarial trial. Fleisher, 60 Md. App. at 571, 483 A.2d 1312. In determining whether or not extrinsic fraud exists, the question is not whether the fraud operated to cause the trier 3 Appellee filed no response to appellant s brief. - 5 -
of fact to reach an unjust conclusion, but whether the fraud prevented the actual dispute from being submitted to the fact finder at all. Id. Hresko v. Hrsesko, 83 Md. App. 228, 232 (1990). In Tandra S. v. Tyrone W., 336 Md. 303, 316 (1994), the Court of Appeals addressed the same issue as the instant case. There, the Court consolidated two cases which were appealed after the circuit court granted two Md. Rule 2-535(b) motions on the basis of mistake and fraud. Id. at 306. In one of the cases, referred to as Case 157, the plaintiff, mother, gave birth to a son and told the defendant he was the father. Id. at 308. At the paternity proceedings, the mother testified that the defendant was the child s father and as a result, the court entered a child support order against him. Id. Two years later, the mother informed the defendant that he was not the child s father, that she had falsely indicated that he was the father on the paternity petition, and had committed perjury in the paternity proceedings. Id. at 309. The mother and the defendant then sought to terminate the paternity judgment and child support order, but the Department of Social Services denied the requests. Id. Six years after the paternity judgment and child support order had been entered, the defendant filed a motion to vacate the child support order pursuant to Rule 2-535(b). Id. The circuit court granted the motion and terminated the order. The Department appealed and this Court affirmed the circuit court s judgment. Before the Court of Appeals, the defendant argued that the mother s perjury at the paternity proceedings constituted fraud, and accordingly, the circuit court was within its power to vacate the paternity judgment and child support order. Id. at 321. The Court, citing - 6 -
case law from Oregon, concluded that the mother s perjury constituted intrinsic fraud and as such, was not a ground for revising the judgment. It was intrinsic fraud because, it was committed during litigation, at a time when it could have been contested. Id. The circuit court s judgment was vacated. Id. at 322. This Court explained what type of fraud is extrinsic and will thereby permit a circuit court to vacate or revise a judgment under Rule 2-535(b) in Das v. Das, 133 Md. App. 1, 18-19 (2000). Intrinsic fraud occurs within the case itself when, for example, a witness perjures himself or a party offers a forged instrument into evidence. Tandra S., 336 Md. at 316, 648 A.2d 439 (citing Schwartz v. Merchants Mort. Co., 272 Md. 305, 308, 322 A.2d 544 (1974)). Even if a perpetrator of intrinsic fraud occasionally succeeds in distorting the truth, our adversarial system is the best hope for ferreting out such deception. On the other hand, extrinsic fraud prevents the adversarial system from working at all. It involves infirmities such as a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client s interest to the other side,-these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. Id., 336 Md. at 316-17, 648 A.2d 439 (quoting Schwartz, 272 Md. at 309, 322 A.2d 544) (quoting United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878)). In the instant case, appellant contends that the circuit court abused its discretion to revise or vacate the judgment because he provided evidence demonstrating that appellee committed fraud by the way of perjuring herself multiple times at the divorce proceedings. At trial, appellee testified that she owned a 1998 Mazda when appellant asserts that she had recently - 7 -
purchased a 2003 Mercedes Benz. Appellant had previously owned a tow truck business and appellee testified that the two trucks were not in her name, and therefore she could not and did not sell them after appellant was incarcerated. Appellant claims that he had a personal injury settlement check in the amount of $3,000 sent to appellee and she cashed the check and kept the money from appellant. Appellee claimed that she never recalled being given an insurance check. Appellee testified that she did not have appellant s diamond rings or watches that he asserts were left in her care during his incarceration. She stated that when the police raided the home in connection to the narcotics violations, they took all of appellant s jewelry and she was unaware of what was taken. In his motion to revise, appellant provided the court with an inventory sheet that listed what was returned from the police. Lastly, appellant challenges appellee s claim that there was no equity in the marital home and contends that appellee had received a loan in the amount of $83,933.48, and that he is entitled to a portion of the loan. Appellant s motion to revise highlights instances which may or may not constitute perjury by appellee. Unfortunately, Maryland law is settled in that perjury during court proceedings does not constitute the type of fraud required for a Rule 2-535(b) motion to be granted. This case is akin to Tandra S., where the mother admittedly committed perjury yet notwithstanding, the Court concluded the defendant was not entitled to have his motion granted because her perjury constituted intrinsic fraud and not extrinsic fraud. We conclude likewise. Appellee may have committed perjury during the divorce proceedings. However, - 8 -
even if she did, the perjury would constitute intrinsic fraud, which could not serve as the basis for reconsideration of a judgment. [T]he question is not whether the fraud operated to cause the trier of fact to reach an unjust conclusion, but whether the fraud prevented the actual dispute from being submitted to the fact finder at all. Hresko, 83 Md. App. at 232. Therefore, we conclude that the circuit court did not err in denying appellant s motion to revise or vacate. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS AFFIRMED. COSTS TO BE PAID BY APPELLANT. - 9 -