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Barrett v. Barrett

Court of Special Appeals of Maryland

May 1, 2019

BRIAN M. BARRETT, SR.
v.
CAROL J. BARRETT

          Circuit Court for Wicomico County Case No. C-22-FM-17-00170

          Fader, C.J., Wright, Leahy, JJ.

          OPINION

          LEAHY, J.

         A hearing on the merits of the divorce filed by Carol Barrett, appellee, against Brian Barrett, Sr., appellant, was held on October 2, 2017, before a magistrate in the Circuit Court for Wicomico County. About three months after the hearing, the magistrate issued her Report and Recommendations ("Report"). Rather than serve the parties through the Maryland Electronic Courts ("MDEC") system or regular mail, the clerk of the court placed copies of the Report, along with notices regarding the filing of exceptions and certificates of service, in mailboxes located at the courthouse that are assigned to the parties' counsel. Brian[1] did not retrieve the Report from the mailbox until February 5, 2018-the last day on which he could file timely exceptions to the judgment of divorce. The circuit court entered a judgment of absolute divorce the following day, February 6. On February 7, Brian filed exceptions and a motion for leave to file them, along with a separate motion to alter, amend or to revise the judgment. He argued that because he was not properly served, the time for filing exceptions should not run from the date that the Report was docketed. On February 21, the court summarily denied Brian's filings.

         Brian appealed from the court's denial of his motion to alter, amend, or revise the judgment and the denial of his exceptions, and presents one question for our review:

"Is the placement of a Magistrate's report and recommendations in a courthouse mailbox proper service under Rule 1-321?"

         Wicomico County is an MDEC County[2] governed by Title 20 of the Maryland Rules. For the reasons explained in this opinion, we remand to the circuit court with instructions to consider whether service of the Report in this case satisfied the Maryland Rules, specifically Title 20 governing electronic service in MDEC counties.

         BACKGROUND

         Carol filed for divorce on February 7, 2017. On June 14, 2017, with the parties' consent, the Circuit Court for Wicomico County referred the divorce proceeding to a magistrate. Following a merits hearing held on October 2, 2017, Magistrate Connie G. Marvel invited the parties to submit written closing statements, which the parties duly submitted several weeks later.

         About three months after the parties submitted their closing arguments, Magistrate Marvel issued the Report, along with a notice to the parties regarding filing exceptions and a certificate of service.[3] The court uploaded all three documents to MDEC, docketing them on January 23, 2018.[4] The clerk's office then placed paper copies of all three documents, dated January 23, 2018, in mailboxes located at the courthouse that are assigned to the parties' attorneys. The certificate of service, signed by the clerk of the court, indicated that the court served the parties on January 23 by "Courthouse Mailbox" rather than hand delivery or U.S. mail. The notice informed the parties that they would have "[10 days] from the date [the Magistrate's] written Report/Proposed Order is served" to file exceptions.

         On February 6, 2018, having received no exceptions to the Report, the circuit court entered a judgment of absolute divorce premised on the magistrate's recommendations.

         The following day, February 7, Brian filed three papers with the court: a motion for leave to file exceptions, exceptions, and a motion to alter or amend the judgment pursuant to Maryland Rule 2-534 or to revise under Maryland Rule 2-535. In his motions, he contended that placing the Report in the attorneys' courthouse mailbox did not constitute proper service under the Maryland Rules. Brian asserted that the time for filing exceptions should not run from the date of the January 23 docket entry because the magistrate did not properly serve the Report. Brian further argued that the irregular service was a sufficient ground for the circuit court to exercise its revisory power.

         Attached to Brian's motion for leave to file exceptions was an affidavit by Janet Lane, the secretary for Brian's attorney. She attested that she checked the courthouse mailbox on January 23 and January 25, 2018, between the hours of 10:00 a.m. and noon, and "[n]othing was in the box." She did not work on January 26-30 because she was ill, and she did not check the courthouse mailbox when she returned to work on January 31. One of Lane's colleagues checked the mailbox around noon on February 5, found the Report, and brought it to Lane. Lane sent the Report to the firm's Crisfield office in "a courier bag used to transport paper documents between offices" and did not notify Brian's attorney that she received the Report. Brian's attorney received the report on February 6 when the courier bag reached the Crisfield office.

         Carol filed oppositions to Brian's three motions. The circuit court summarily denied all of Brian's motions on February 21, 2018. In the top margin of Brian's exceptions, the court wrote "[e]xceptions are denied as untimely. Rule 9-208(f)." The court stamped "denied" on Brian's motion to alter, amend, or revise.

         Brian timely appealed to this Court on March 19, 2018.

         DISCUSSION

         Brian contends that the circuit court judge's denial of his motion to alter, amend, or revise the judgment of absolute divorce was an abuse of discretion because "[p]lacing a paper in a courthouse box maintained for the convenience of the court and clerk's office is not a proper method of service under Rule 20-106(b) or Rule 1-321(a)." According to Brian, the rules required the magistrate to serve him electronically; by hand-delivery to his counsel; by leaving a copy at his counsel's office or home; or by mailing a copy to his counsel's office, which is his counsel's address of record. Without proper service, Brian ...


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