*1 DOBROW v. LAWRENCE DOBROW DOLORES Term, 392, September 1981.] [No. January
Decided argued The cause Bishop, Moylan, Moore JJ.
Ferdinand J. Mack for appellant.
John W. Kommeier for appellee. J., delivered the opinion of the Court. J., Bishop, Mooee, concurring opinion page concurs and files a 472 infra. Dolores Dobrow an appeals from order of the Circuit Court Montgomery County, dated which $1,000 per reduced the alimony month that Lawrence pay Dobrow was appellant under a 1977 agreement In open entered into court. the appellant sought alimony increase while appellee Testimony endeavored to decrease it. thereon was taken who, before domestic relations Master in a proposed Order Modification, recommended 30% reduction in alimony. adopted court the Master’s recommendation on Febru- ary 18, 1981.
In this Court appellant asserts that a "simple recitation the facts” demonstrates that the lower court abused its discretion or was erroneous. avers that neither the Master nor the any
Chancellor made
findings
fact which support the trial
to adopt
court’s decision
proposed
Master’s
order. Such
allegations adequately
raise the
of whether
Chancellor erred as a
adopting
matter of law in
the Master’s
filing
recommendation after the
of exceptions
in any
without
way ruling
exceptions.
on those
If
committed,
error were
then there
awas
denial of procedural
process
due
require
would
this case be
pro-
remanded for further
ceedings. Charles J.
Co.,
Cirelli & Sons v. Harford
497,
The Facts Unlike appellant, "simple we find recitation of the facts” in the contrary, record. To the the testimony of the parties respective the statements in their briefs demon- many strate that in dispute. "facts” remain The category alia, income and includes, inter the actual disputed facts of which resolution parties, the accurate expenses of the any, if in their change, determination of to a essential circumstances. Master heard 26,1981, domestic relations January
On but because of testimony parties, of the b., concerning f. 2. Md. Rule 596 comply with failure to recommenda- proposed of intent to file notice tions, report respecting no written the Master made to recommend Nevertheless, in order for the Master fact. certain required to believe alimony, he was a reduction portions. The testimony reject and to other of the parts however, was not before testimony, analysis the Chancellor. presumably
When the Master’s signature with a facsimile approved stamped *3 18,1981, pleadings, exceptions, February the Chancellor on in all that were of modification were proposed order was the bald proposed file. All that order contained court in passed to be this case.” recitation, proper "This is a order in reveals the exhibits this were record 19, Moreover, day, filed until the next 1981. placed was not before Master
transcript
21,1981, more than three months after
May
the record until
signature was
order
affixed
Chancellor’s facsimile
Thus,
there
no evidence before the
of modification.
of modification
Chancellor at the time the
"signed.”
not rule on the
Chancellor did
so
give any
nor did
reason for his failure to
rule.
he
of Review
Scope
on the testi-
argument
appeal
While the
based
mony
of that
and exhibits submitted to
none
none of it was before the
evidence is before us because
by
In
of the order.
an action tried
Chancellor
date
jury,
appellate
lower court without a
our
review addresses
evidence,
scope
but our
of review is
both the law and the
his
limited
the Chancellor bases
to the evidence
sign
Joyce,
conclusion to
the order.
v.
App.
Casson
634, 638, 346
judgment
A.2d 683
A
lower court
will not be
on
set aside
the evidence unless
erroneous. Md. Rule
Wenger Wenger,
42 Md. App.
94,
granted,
(1979),
402 A.2d
cert.
appeal
The Chancellor’s Duties Assuming arguendo that the requirements rules, conformed to the applicable this case did not perform the duties Court, him. This in Ellis v. Md. A.2d 428 considered an appeal custody from child case in which the an solely Chancellor filed order based the recommendations of a Master. We noted that Chancellor had no evidence or testimony before him from which to necessary make the determinations for an intelli- gent judgment. order, We held in Ellis that the Chancellor’s in the absence of a factual predicate, constituted miscarriage justice. said:
"Litigants judicial all proceedings are entitled have their ultimately by duly cause determined qualified judge of a of competent jurisdiction. court § Const., IV, 1; Code, Art. 30; § Md. art. Md. Rule a. system 71 While the resorting long standing Masters is one of undoubtedly *4 salutary resulting has effects in the more dispatch the expeditious judicial process, sys- of the supplant tem cannot the ultimate of in judges role judicial the process itself.” 19 Md. at App.
Relying Appeals Court Realty the of decision in Bris v. Phoenix, 84, 89, 208 238 Md. (1965), A.2d 68 proposi the tion findings that Master must make suggest disposi and court, tion to the circuit we supra further said in 366, that the action was more a pro Chancellor’s than and, the Master’s recommendation adoption of forma indepen right to an therefore, a violation of the evidence. dent review requirement for a reiterated the recently, this Court
More that the order. We found basis to a Chancellor’s factual There, affirmed Wenger, supra. met we requirement alimony because the support child modifying an order factual very predicate it clear that his Chancellor "made report as the of Master as well 'the record’ made the it.” 599. The taken to Id. at exceptions Master and the the Wenger pages findings of five of report consisted pages of recommendations. We of fact and one and one-half readily circumstances from Ellis. Addi- distinguished those tionally, in we would have been a Wenger, stated there if judicial the function” the delegation ^'forbidden of recom- had no choice but to affirm the Master’s mendation. Id. at 603.
The Rules
Wenger
of
S 74. f. 4
application
We discussed
Rule
—
Maryland,”
"Court
Sixth
Circuit of
Rules
Judicial
requires:
"Upon
filing
exceptions pursuant
section,
to the
proceedings
shall be referred
excep-
Court. The Court shall then rule
record,
it
tions on the
unless
shall determine that
shall
hearing
required,
in which event
Court
to the
proceedings
refer
Assignment
scheduling
Office for
notification of counsel.”
and the
the requirements
We said that the Chancellor fulfilled
by "fashionfing]
decree on the basis of
the rule
his ultimate
fact,
and its
taken
” 42
App.
and 'all relevant
at 598-99. See
report,
facts.’
53, Terry
Terry,
A.2d
County complied
Montgomery
which the Circuit Court for
*5
with
provided appellant
Sixth Circuit Rule S 74 and
awith
hearing on exceptions taken to a Master’s recommendations.
Rand,
527, 538,
See
Rand
also
33 Md.
As we not comply did with f, Md. Rule 596 requires party a in a domestic relations notify prepare to the Master to report file written with provides the court. That section that within five recommendation, from the service of a notice of the proposed written intention be shall sent to the Master, with a copy parties. the clerk and all other failure file the notice of intention to file is a right waiver to file exceptions. case,
In the judice, sub the actual exceptions themselves timely clerk, were with a copy with sent to the other but party, copy no was sent to Master. Inasmuch Master had apprised way he no knowing that required. Rule c. 596 f. 2. filed, however, When have been does the failure to conform with any notice of intention requirement way relieve the court of its obligation to base the issuance or its order decree facts of which it knowledge? has We 366-67, supra considered that at where we said: rule,
"And rule or ... parties are entitled to have carefully and intelligently judgment exercised Chancellor, as distinguished from that of the Without having alone. reviewed least testimony and evidence adduced at the before the was in no position to fulfill his judicial obligation to the parties. position Nor is this Court in properly to discharge appellate its function ... when our invoked, review of a Chancellor’s action is we do not merely review
Chancellor but must
before the
review
evidence
independent
Chancellor and make an
assessment
facts before
review the
it.
cannot here
*6
none.”
there were
because
Chancellor
Brady,
in Swisher v.
Court
Supreme
The
States
United
(1978)
law, Masters
Maryland
that under
Conclusion instant mailed Master in the relations domestic 4, 1981, copies parties to the on exceptions. timely filed of order modification. exceptions Md. Rule f. 2. b. were filed Supplemental 596 two of part specific error on the allege The documents later. the circuit request novo and a de of makes modification court. The Chancellor’s with exceptions. If the conformed mention rules, in accor- Chancellor failed act then did If the foregoing requirements. dance with the have rules, not conform with the then the should so stated. The Chancellor’s failure to rule their validity under rules or as to either to their due and substance, procedural process, the appellant denied Corp., Center, Drug Inc. v. Dart compels remand. Northover Craig 24 638, Md. App. A.2d See 729 Assn., 189 A. Building Hebron Loan § Motions and Orders cited 60 C.J.S. his is entitled to decision party "a proposition motion.” as to the effect
Because a exists notice of intent to noncompliance requiring with rule the matter for determination exceptions, we shall remand validity the Chancellor of the order, if required. modification of his use of facsimile the immediate end to the suggest
signatures original orders and decrees. Without original signature the reviewing judge nothing there is the record to support conclusion that the Chancellor ever personally saw the order.
Case remanded pursuant to Md. Rule 1071 a pro- for further ceedings.
Costs to be divided equally between the parties.
Moore, J., concurring:
I concur the result appeal reached but consider that, it important emphasize through no fault of the chancellor, we are without of fact in this case.
The fault is that of the appellant who failed to follow the (1981 "precise Maryland rubrics” of Rule 596 Cum.Supp.). Specifically, neglected notify she Master writing her exceptions, intention to file required by subsection f.2. (a) omission, of the Rule. This is serious for two reasons: (b), Under 596 f.2. timely filing unless there is a of the notice of intention to right to fíle (b) waived; (c), under 596 f.2. the Master is not fact) (i.e., file a report” "written unless the afore- said notice has been filed.
This serious by filing exceptions omission is not cured h.l., "with the clerk” under 596 as did appellant. That sub- requires section that the be filed ten "within here, from filing report.” of the written But the written kept completely the Master. He was in the dark no notice intent because was filed. No written report from him be forthcoming would without that notice. that, remand,
It would seem all the chancellor need do inscription is make suitable the appellant’s exceptions nullity are a right because the to file them waived.