UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2282
September Term, 2013
IGOR BELYAKOV
v.
IRINA BELYAKOVA
Wright,
Hotten,
Raker, Irma S.
(Retired, Specially Assigned),
JJ.
Opinion by Wright, J.
Filed: November 10, 2014
Appellant, Igor Belyakov (“Father”), married appellee, Irina Belyakova
(“Mother”), on July 12, 1998. Their marriage produced twin daughters, Anastasia and
Catherine, born June 28, 2002. After a one-year separation, Mother filed for absolute
divorce in the Circuit Court for Montgomery County on March 2, 2012. On July 31,
2012, Father and Mother entered into a pendente lite order, by consent, agreeing to
custody, child support, and alimony. After a hearing on February 27, 2013, the circuit
court entered a judgment of absolute divorce for Mother on March 11, 2013.
On February 28, 2013, Father filed a motion to modify child support. Before a
hearing was held on the motion, Father filed a motion to modify visitation on June 21,
2013. On October 8, 2013, the circuit court heard both motions. On October 30, 2013,
the circuit court denied Father’s motion to modify child support but granted his motion to
modify visitation. On November 21, 2013, Father filed a motion for reconsideration
pursuant to Md. Rule 2-535. The circuit court denied his motion on December 20, 2013.
Father timely appealed the denial of this motion on January 16, 2014.
On appeal, Father asks six questions1 which we have consolidated as whether the
circuit court abused its discretion in denying his motion for reconsideration?
1
Father presented six questions for our review:
1. Was the trial court’s decision based on [Mother’s] fraud and
misrepresentation of facts on [Father’s] financial situation, legally
correct when pursuant to Maryland Rule 2-535(b) the Court may
exercise its Revisory Power if the judgment based [sic] on fraud or
mistakes?
2. On the date of the trial, Dr. Kuzmenok, [Father’s] witness was under
surgery in the Hospital. Did the Judge abuse his discretion when he did
Facts
Father and Mother were married in Russia on July 12, 1998. After immigrating to
the United States, the couple had twin daughters, Anastasia and Catherine, born June 28,
2002. Mother filed for absolute divorce on March 2, 2012, in the circuit court, citing a
12-month separation. She requested alimony, child support, and sole physical and legal
custody of the children with visitation for Father.
not allowed [sic] Dr. Kuzmenok to testify on another day under
Maryland Rule 2-508(a) and (c), which state that a Court may continue
a trial as justice may allow, including a reason that a witness is absent?
Is Federal Rule of Evidence 804(a)(4) should be apply [sic] when
[Father’s] expert witness was in surgery being operated on and
submitted to the Court his sworn, signed, and notarized affidavit?
3. Was the judge’s “Deny” decision on Motion for Reconsideration based
on newly-discovered evidences [sic] of discrimination and retaliation
and court trial irregularity, legally correct when pursuant to Maryland
Rule 2-534 the Court may open the judgment to receive additional
evidence, may amend its findings or its statement of reasons for the
decision, may enter new findings or new reasons, may amend the
judgment, or may enter a new judgment.
4. Was the trial court’s decision ordering [Father] to pay 50% of
Orthodontic costs legally correct when the Judge dismissed the
questions about the orthodontic work during cross-examination of
[Mother] whether the work was needed was speculative?
5. Was the trial court’s decision giving [Father] conditional visitation
legally correct when the Judge’s decision was a mistake in the
Judgment? There was no [sic] any evidence to support the Judge’s
decision and he looked at the facts in a light most favorable to [Mother].
6. Was the trial court’s decision ordering [Father] to pay legal fees, legally
correct when the Judge [sic] decision was a mistake in the Judgment and
was based on wrongful fact [sic]?
2
On July 31, 2012, the parties entered into a consent agreement. Under the terms of
the agreement, Mother was awarded sole physical custody, but the parties would have
joint legal custody of the children. Father was awarded “reasonable rights of visitation.”
Additionally, Father was ordered to pay child support of $1,611.00 per month,
commencing August 1, 2012, and the parties agreed to waive all claims for alimony
against each other. In granting Mother absolute divorce on March 11, 2013, the circuit
court incorporated the agreement into its judgment.
Father filed a motion to modify child support on February 28, 2013, requesting
that child support be decreased. He averred that after the consent agreement, he had
become unemployed. Before a hearing could take place on his motion, Father filed a
motion to modify visitation on June 21, 2013. In that motion, Father averred that since
the consent agreement, he had “moved back from Michigan to Maryland and would like
to see children[.]” He requested that he be granted visitation on “weekend[s]” and
“regular days[.]” He also requested a change in the current child support order.
The circuit court set a one-day hearing on both motions for October 8, 2013. At
the hearing, Father testified that he had been unemployed since the “end of 2012,” when
he lost his position as a research assistant professor at the University of Michigan. Father
testified that he had received unemployment in the amount of $362.23 each week, but
that this benefit had expired after 20 weeks. He had not reapplied for unemployment
benefits.
Father testified that he had not been able to find employment since losing his job
at the University of Michigan. He submitted a worksheet he created showing that he had
3
applied for 100 jobs since losing his job. He stated that he had not hired a professional
(i.e., a “headhunter”) to assist him in obtaining work.
Since losing his job, Father testified that he has “some help from [his] relatives.
They give me some loans until I found a job.” As to expenses, Father testified that he
owns a home, on which he does not have a mortgage. He pays taxes of $2,000.00 a year
on the home. As to monthly expenses, he has an electric bill, gas bill, cell phone bill, and
condominium fees. On his financial statement, filed as a part of the divorce proceedings,
Father listed his food expenses as $500.00 per month and gas for his car as $200.00 per
month. Father testified that the expenses he had, though, had significantly decreased
since he had become unemployed.
Leann Friedman, an expert in the field of vocational rehabilitation, testified on
behalf of Mother as to Father’s employment prospects. After Ms. Friedman was admitted
as an expert, she testified that Father was well-qualified in the field of immunology and
had the potential to earn between “$90,000.00 and $200,000.00” per year. As to Father’s
employment prospects, Ms. Friedman said that “he’s definitely employable in jobs that
he’s held before. He could be an assistant professor. He could be a research scientist.
He could be a laboratory director. All the jobs that he’s held before he’s certainly still
qualified to do.”
Ms. Friedman testified that someone in Father’s field should find a job within
“approximately six months” “if someone’s doing a good faith job search effort.” As to
Father’s search effort:
4
[MS. FRIEDMAN]: [Father] knew in the end of December that he
might be losing his job so he should’ve started immediately in January
looking for jobs. When I looked at the job application list that he did, he
didn’t have any that listed January that he was looking for jobs, but he did
look for approximately 26 jobs in February, which is good, but in March
there were only 11. And then he stepped up his job search again in April
with approximately 35 jobs, but then in May, June, July, and August, and I
don’t have anything for September or October[,] he applied for less than 10
jobs.
And when you do a good faith job search you have to treat it like it’s
itself a full-time job. And applying for 10 jobs a month is not a full-time
job. It just isn’t. Even if you’re having other activities of daily life,
especially if you’re doing it over the internet, you don’t have to do it
between nine to five. You can do it on weekends. You can do it in the
evenings. So I just ― I’m not sure what other activities he was doing,
especially in March, May, June, July, and August where he was doing so
little amount of applications.
[MOTHER’S COUNSEL]: Do you believe that if [Father] is
motivated to find work that he will find work?
[MS. FRIEDMAN]: Absolutely.
[MOTHER’S COUNSEL]: So, would you say it’s more of a matter
of “when” than “if”?
[MS. FRIEDMAN]: Absolutely. This is an extremely accomplished
gentleman. He is MD PhD which is not a dime a dozen, and he has
excellent work and experience and education. He should be able to find a
job within that range; he is more than qualified.
Later, during cross examination, Ms. Friedman made the following statement as to
Father’s employment search:
The only thing that I can say is that he’s had 10 months to look for a job in
his field, and there’s a disconnect somewhere as to why after all this time, if
he’s been doing a good faith job search, why he hasn’t found a job by now.
I don’t know. I can’t tell you why he hasn’t. The only thing I can see is the
numbers, and what he’s testified to, and what he’s submitted into discovery,
and it’s not a good job search effort. He needs to be doing more of what he
did, especially in February and April.
5
Mother also testified. During her testimony, she stated that Anastasia will need
braces. She testified that the cost would be “about $5,000[.00],” and that the child would
need braces for “[t]wo years.” Mother testified that she planned to begin payments on the
braces in November 2013. She admitted that she cannot really afford the braces but
“[she’ll] do it.”
Mother testified to the children’s swimming lessons, stating that both of the girls
“are very competitive,” and that they are “very advanced for their age. They go and
compete on the big meets. They have a good placement.” In particular, “Anastasia still
holds the record for the summer swim team. [C]atherine and Anastasia got in top 20
overall of five states.”
Mother testified that the two girls have been swimming
competitively “[s]ince five years of age[,]” and that their schedule includes practice “five
times a week[.]”
Mother testified that she is willing to expand visitation rights for Father, but that
the schedule would need to be good for everyone. She clarified that a good schedule for
the children is one “which will not interrupt with swimming. So if we can do the
schedule around the kids’ schedule.” In particular, she emphasized that the children must
get to practice on time because their “[c]oach is very particular about being late. He is
very unhappy with that. And to be on his team you have to kind of listen to what he says
because he is a very good coach.”
At the conclusion of all testimony, Father proffered an affidavit of “an expert in
[Father’s] profession[.]” Father argued that the affidavit would “prove[ ] knowledge
about [Father’s] ability to obtain employment as well as market trends, and because he’s
6
in that profession himself, he has that knowledge firsthand.” The court responded, “I
don’t understand how it’s admissible . . . Isn’t it hearsay?” Father did not explain why
the affidavit was not hearsay but stated that the witness was not available because “he is
in surgery and was unable to testify today. We’re willing to make him available if there’s
another time to cross examine him.” The circuit court denied the affidavit stating, “Well,
this case is over. It’s over ― long overdue. It was a three hour hearing. I think we’re on
about hour five now. So, the hearing’s going to be over, so there’s not going to be any
further evidence. So no, I can’t admit that. Sorry.”
On October 30, 2013, the circuit court entered an order denying Father’s request
for a decrease in child support and granting his request for a change in visitation. The
order, in pertinent part, stated:
ORDERED, that [Father]’s Motion to Modify Child Support (DE
51), is hereby DENIED; and it is further
ORDERED, that [Father] is found to be in arrearage in the amount
of $8,577 in child support payments for the period of January 2013 through
October 2013; and it is further
ORDERED, that [Father] shall pay [Mother] the sum of $8,577 as
payment for accrued child support arrearage in monthly installments of
$250 until paid in full; and it is further
ORDERED, that [Mother] and [Father] shall each pay 50% toward
the costs of any and all orthodontic work for either child; and it is further
ORDERED, that with regards to the parties’ minor children,
Anastasia Belyakova, born 6/28/2002, and Catherine Belyakova, born
6/28/2002, the parties shall observe the following schedule of visitation
beginning Tuesday, October 24, 2013:
1.
The following schedule is conditioned on [Father] taking
the children to all swim practices and all swim meets, on-time, on
7
days where they coincide with visitation. If [Father] chooses not to
do so, then visitation will end at the time the children are taken by
[Mother] to such practices and/or meets.
2.
[Father] shall pick-up children and have them with him
every other weekend from 8 p.m. on Friday through 7 p.m. on
Sunday when the children will be picked up by [Mother].
3.
[Father] shall pick-up children and have them with him
every Tuesday and Thursday from 3 p.m. to 7 p.m. when the
children will be picked up by [Mother].
4.
During School Winter and Spring Breaks, [Father] and
[Mother] will have the children for half the amount of time each
with [Father] having the children for the first half of the break and
[Mother] having the children for the second half of the break.
5.
During June (after school ends) and July, [Father] will
pick-up the children at 7 p.m. on Sunday every other week until they
are picked up by [Mother] at the same time the following week.
6.
During August [Father] will pick-up the children at 7 p.m.
on Sunday of the third week and shall have the children until they
are picked up by [Mother] at 7 p.m. on Sunday of the fourth week of
August.
7.
The parties shall observe the following holiday schedule:
a.
Thanksgiving: [Mother] shall have the children.
b.
Christmas: [Father] shall have the children.
c.
children.
New Year’s Day: [Mother] shall have the
d.
Memorial Day: [Father] shall have the children.
e.
Fourth of July: [Mother] shall have the children.
f.
Labor Day: [Father] shall have the children.
ORDERED, that [Father]’s Request for Attorney’s Fees is
DENIED; and it is further
8
ORDERED, that [Father] shall pay [Mother] the sum of $8,000.00,
$5,000.00 for attorney’s fees and $3,000.00 for expert witness costs
incurred by [Mother]; and it is further
ORDERED, that all other requests for relief by either party are
DENIED.
(Emphasis in original) (footnote omitted).
Father filed a motion for reconsideration of child support and visitation on
November 21, 2013.2 In his motion, Father contended that the order should be revised
based on newly-discovered information, fraud, and misrepresentation of facts about his
financial situation, mistake as to facts, and irregularity of trial procedures.
Father
asserted that the court should grant a new trial because of newly-discovered evidence —
an Equal Employment Opportunity Commission (“EEOC”) order dated November 8,
2013 and a Merit System Protection Board (“MSPB”) order dated October 30, 2013.
Father claimed that these opinions showed that he was discriminated against during his
search for employment and suggested that the alleged discrimination prevented him from
obtaining employment.
Father averred that these opinions refuted Mother’s expert
testimony about his ability to find suitable employment.
2
Because Father filed his motion to reconsider more than ten days after the
judgment was entered, his motion did not stay the time to file a notice of appeal for the
underlying judgment. See Md. Rule 8-202(a) & (c) (requiring a notice of appeal to be
filed within 30 days of entry of a judgment and excluding motions filed pursuant to Rule
2-535 from the list of motions that extend the time for filing a notice of appeal to 30 days
after entry of an order denying relief on a post-judgment motion). See also Pickett v.
Noba, Inc., 114 Md. App. 552, 557 (1997) (“The timely filing of a motion under Rule
2-535 does not automatically stay an appeal. If the motion is filed within ten days of
judgment, it stays the time for filing the appeal; if it is filed more than ten days after
judgment, it does not stay the time for filing the appeal.”) (Citation omitted).
9
Father also claimed that the circuit court should revise its judgment because of
Mother’s “Intrinsic Fraud and Misrepresentation of Facts Regarding the Defendant’s
Financial Situation as well as [Mother’s] Attorney’s Statement About the Amount of
Money [Father] Received From Relatives.”
Father averred that there were
misrepresentations made during Mother’s closing arguments about his financial situation.
Father contended that Mother’s trial tactics during cross examination of cutting off Father
and asking questions that “distorted the issue” were inappropriate and “misled the Court
into concluding that [Father] had more money available to him than he actually did.”
Additionally, Father argued that the judgment was based on mistake. Father
contended that there was no evidence to support the court’s “condition” that Father take
his children to swim practices in order for him to continue his visitation with the children.
Father also averred that there was no evidence to support the court’s order for him to pay
50% of the children’s orthodontic costs.
According to Father, the judgment should be revised based on irregularity of trial
procedures. He argued that the “continuous disruption of [Father’s] testimony caused a
confusion of the facts regarding [Father’s] debt and availability of funds.” Additionally,
Father averred that his ability to cross-examine Mother for ten minutes was
“Substantially Less than Was Allowed for Plaintiff’s Direct Examination.”
Father
contended that the circuit court wrongfully refused one of his witnesses to testify at a
later date, even though the witness “was Involuntarily Unavailable Due to a Surgery
Performed on the Date of the Trial.” Father argued that, in lieu of a continuance, he
10
should have been allowed to submit a signed and notarized affidavit from the witness
regarding the witness’s testimony.
Based on all of his contentions, Father argued that the award of legal fees to
Mother should be revised as well. He contended that based on all of the new “evidence,
mistakes, fraud, and irregularity . . . , there is substantial justification of him having
brought the motion for modification.” As a result, the court should reverse the award of
legal fees based on his motion for reconsideration.
On December 20, 2013, the circuit court denied Father’s motion for
reconsideration. On January 16, 2014, Father, representing himself, appealed.3
Standard of Review
We will review Father’s motion for reconsideration under an abuse of discretion
standard. Father filed his motion pursuant to Md. Rule 2-535(a)-(c).4 As to our review
3
Mother has not filed a brief in this appeal.
4
Md. Rule 2-535 provides, in pertinent part:
(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.
(c) Newly-Discovered Evidence. On motion of any party filed within 30
days after entry of judgment, the court may grant a new trial on the ground
11
of Md. Rule 2-535(a) motions, we said in Wormwood v. Batching Sys., Inc., 124 Md.
App. 695, 700-01 (1999):
An appeal from a denial of a motion to revise or “motion for
reconsideration,” pursuant to Rule 2-535(a), does not serve as an appeal
from the underlying judgment, and the applicable standard is whether the
court abused its discretion. New Freedom Corp. v. Brown, 260 Md. 383,
386, 272 A.2d 401 (1971), rev’d on other grounds, 352 Md. 31, 720 A.2d
912 (1998); Stuples v. Baltimore City Police Department, 119 Md. App.
221, 241, 704 A.2d 518 (1998); and Blitz v. Beth Isaac, 115 Md. App. 460,
469 n.4, 694 A.2d 107 (1997), rev’d on other grounds, 352 Md. 31, 720
A.2d 912 (1998). As we said in B & K Rentals v. Universal Leaf, 73 Md.
App. 530, 537, 535 A.2d 492 (1988), however, that the matter is left to the
discretion of the trial court does not mean that if the action of that court is
clearly arbitrary or has no sound basis in law or in reason, it could not be
reviewed, but it does mean that we will not reverse the judgment of the trial
court unless there is grave reason for doing so. The fact that an error may
have been or was committed and not corrected by a trial court on a motion
to revise is not necessarily an abuse of discretion. The nature of the error,
the diligence of the parties, and all surrounding facts and circumstances are
relevant. Thus, the determination is case specific. The real question is
whether justice has not been done, and our review of the exercise of a
court’s discretion will be guided by that concept. Clarke Baridon, Inc. v.
Union Asbestos & Rubber Co., 218 Md. 480, 483, 147 A.2d 221 (1958); B
& K Rentals, 73 Md. App. at 537, 535 A.2d 492.
We apply the same standard of review for motions submitted pursuant to Md. Rule
2-535(b)-(c). See Canaj, Inc. v. Baker & Division Phase III, LLC, 391 Md. 374, 400-01
(2006) (stating the standard of review for motions to set aside a judgment based on fraud,
mistake, or irregularity); Casey v. Grossman, 123 Md. App. 751, 760-61 (1998) (denial
of a motion to reconsider is reviewed for abuse of discretion).
Because we review the circuit court’s decision for an abuse of discretion, we
review the law and the evidence for clear error. Casey, 123 Md. App. at 761. In deciding
of newly-discovered evidence that could not have been discovered by due
diligence in time to move for a new trial pursuant to Rule 2-533.
12
whether there was clear error, “our role is to assess the sufficiency of the evidence to
support the trial court’s findings. In making this decision, we must assume the truth of all
evidence, and of all the favorable inferences fairly deducible therefrom, tending to
support the factual conclusions of the lower court.” Id.
Discussion
Father alleges that the circuit court abused its discretion in denying his motion for
reconsideration. On appeal, Father seeks to rehash the same contentions in his motion for
reconsideration under Md. Rule 2-535.5 Father contends that the circuit court’s order was
based on fraud because of misrepresentations by Mother’s attorney and should be revised
in accordance with Md. Rule 2-535(b). Father argues that the circuit court abused its
discretion when it denied admission of an affidavit of Father’s alleged expert witness, Dr.
Kuzmenok ― first, Father wants to introduce evidence regarding Dr. Kuzmenok’s
absence as newly-discovered evidence, and second, Father claims irregularity because the
affidavit was denied.6 Father avers that there was irregularity in the trial procedures
5
Although Father listed Md. Rule 2-535(a) as authority in his motion for
reconsideration, he made no arguments as to that section in his motion. Instead, he
contradictorily stated, “’[O]n 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
Md. Rule 2-534’ for fraud, mistake, irregularity, new-discovery evidence, and clerical
mistakes.” In essence, he limited his arguments to Md. Rule 2-535(b)-(c). This position
is consistent with his briefs as he has made no claim pursuant to subsection (a).
Resultantly, Father has abandoned his claim under subsection (a), and we will not
consider it.
6
Father also argues that the circuit court abused its discretion in refusing to
continue the trial so that Dr. Kuzmenok could testify. We have reviewed the record and
can find no evidence that Father requested a continuance. Because Father failed to
13
because the court limited the amount of time Father had to cross-examine Mother. Father
argues that the circuit court also abused its discretion in declining to exercise its revisory
power to order a new trial based on newly-discovered evidence regarding his EEOC and
MSPB orders, which would correct a misrepresentation by Mother’s attorney and her
expert regarding his job search.
Next, Father contends that the circuit court made a mistake when it ordered him to
pay a portion of the children’s orthodontic costs because the “Judge dismissed the
questions about the orthodontic work during cross-examination of [Mother] whether the
work was needed was speculative[.]” Father contends that a mistake also occurred when
the circuit court granted him “conditional visitation” because he alleges there is “no [sic]
any evidence in this case to support the conditional visitation.”
Based on these
allegations, Father avers that the judgment to award legal fees to Mother was also a
mistake because the “weight of the evidence, namely, mistakes, fraud, and irregularity
argued above are in” his favor.
To recap, pursuant to Md. Rule 2-535(b), Father alleges fraud in the form of
misrepresentations by Mother’s attorney and her expert. He also avers mistake as to the
award of orthodontic costs and conditional visitation because of a lack of evidence.
Father contends irregularity, as well, in trial procedures because he was limited in the
amount of time he received for cross- examination and because he was not allowed to
preserve this claim, we will not consider it. See Md. Rule 8-131 (“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”); Beghtol v. Michael, 80 Md. App. 387, 394 (1989) (the
omission of an objection is both a waiver of the objection and a failure to preserve the
issue for review).
14
submit an affidavit of his expert in lieu of the expert’s appearance. Under Md. Rule
2-535(c), Father argues that his newly-discovered evidence of his EEOC and MSPB
orders should have been considered.
Because of these errors, Father avers that the October 30, 2013 order should also
be revised because he should not have to pay Mother’s legal fees based on the errors that
took place at the hearing.
I.
Fraud, Mistake, and Irregularity
Father first argues fraud, mistake, and irregularity. Md. Rule 2-535(b) states, “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.”
“Maryland courts have
narrowly defined and strictly applied the terms fraud, mistake, [and] irregularity, in order
to ensure finality of judgments.” Pelletier v. Burson, 213 Md. App. 284, 290 (2013)
(quoting Thacker v. Hale, 146 Md. App. 203, 217 (2002)). For the reasons we discuss
below, the circuit court did not abuse its discretion in denying Father’s motion for
reconsideration based on Md. Rule 2-535(b).
A.
Fraud
Father alleges that fraud occurred when Wife’s attorney’s “misrepresented the
facts during the hearing multiple times . . . and wrongfully stated in his closing argument
‘Defendant is perfectly able to pay his child support obligation, he just chooses not to.’”
(Emphasis omitted). As to the misrepresentations during the hearing, Father argues that
during cross-examination, Mother’s attorney “ignored Appellant’s interrogatory
response[,]” “cut[ ] [Father] off during his responses[,]” and “distorted the issue, by
15
focusing on and asking questions about whether the payments from relatives were gifts or
loans.” From this, Father alleges that the trial judge wrongly concluded facts about
Father’s financial situation. Father also contends that statements made during opening
statements were “wrong” and “misrepresent[ed] the financial situation of [Father].”7
Father attempts to argue that these misrepresentations amount to fraud, and the
underlying order should be vacated as a result.
Father, though, ignores what “fraud” means in the context of Md. Rule 2-535(b).
Md. Rule 2-535(b) contemplates fraud that would “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.” Fleisher v. Fleisher Co., 60 Md. App. 565, 571
(1984) (footnote omitted). We have characterized this type of fraud as extrinsic fraud, or
fraud that “actually prevents an adversarial trial.” Id. This type of fraud differs from
intrinsic fraud, or fraud “which pertains to issues involved in the original action or where
acts constituting fraud were, or could have been, litigated therein.” City of Coll. Park v.
Jenkins, 150 Md. App. 254, 269 (citations and internal quotation marks omitted),
judgment vacated on other grounds, 379 Md. 142 (2003).
Father complains that Mother’s attorney “was intentionally damaging [Father’s]
reputation and presented many other wrongful statements.” Previously, we have refused
to address complaints regarding trial tactics where an appellant asserts that the tactics
7
Father avers that fraudulent statements were also made with respect to his child
support payments. Father did not make this argument below, and he attempts to cite
evidence not included in the record to support his allegations. Like his argument
regarding a continuance, we will not review this contention.
16
resulted in “embarrassment, oppression, or undue burden or expense” when an appellant
has not offered support to the assertion. See Tretick v. Layman, 95 Md. App. 62, 85
(1993) (refusing to address complaints regarding trial tactics). We have also said before
that “strategy and tactics are a part of litigation, and throwing your adversary off balance
may well be a legitimate tactic[.]” Mullaney v. Aude, 126 Md. App. 639, 658 (1999).
And, as we have said many times, counsel is afforded “wide latitude” in their statements
during opening and closing arguments. Holmes v. State, 119 Md. App. 518, 527 (1998).
Father, thus, does not actually complain of fraud, but of the trial tactics of opposing
counsel.
Additionally, if Father believed there to be misrepresentations during his crossexamination, he “had an opportunity to clear the matter up on redirect[.]” Walchuck v.
Harting, 224 Md. 334, 336 (1961). During cross-examination, the trial judge advised
Father of the same:
[FATHER]: Can you object to any of this?
[MOTHER’S COUNSEL]: Your attorney will have a chance ―
[FATHER’S COUNSEL]: I ― objection. What was the answer?
[FATHER]: The answer ― he not give me a chance to answer this
question.
[MOTHER’S COUNSEL]: He said he didn’t give any extra money.
[FATHER]: He’s basically ― he’s always forcing me to say yes or
no and to try to [unintelligible]. He not give me opportunity to explain the
situation.
[MOTHER’S COUNSEL]: Dr. Belyakov ―
[COURT]: Well ―
17
[FATHER]: Well, this is like show. This show of one man ―
[COURT]: You’ll have an opportunity through redirect if your
counsel wants to ask any follow-up questions.
[FATHER]: All right.
*
*
*
[FATHER]: Mr. Gudis [Mother’s counsel], you’re pushing because
of time, and you’re not giving me ― you’re basically trying to make me
feel kind of guilty which is ―
[MOTHER’S COUNSEL]: You’re on cross examination in the
United States of America.
[FATHER]: What cross examination? In United States of America
you can push me. This is exactly what you’re doing.
[MOTHER’S COUNSEL]: I’m not pushing you.
questions.
I can ask you
[COURT]: All right. Let’s hold on. The whole point is not to get
into arguments with each other.
[FATHER]: All right.
[COURT]: The way it works is he asks you a question and you
answer it. You can think, “He’s trying to badger me,” or “He’s not being
fair,” but that’s just the way it works, and ―
[FATHER]: Yeah, I must comport [phonetic sp] only what things?
If he asks me information, ask in court to oppress information. If he
complains about my answer he doesn’t like apparently he should not ask
me this question. He would like to get always [unintelligible]. He would
like to ask question if he doesn’t like my answer. This is why it’s ―
[COURT]: Well, he just wants an answer to the question.
[FATHER]: Yeah, but it’s ― you know, in many of these questions
have, you know, have basically complicated answer to this question. Like,
for example first question his was, “Are you medical doctor,” and I said,
“Yes, I’m medical doctor, but I have no license.” Is this a relevant question
to being medical doctor in this country? Yes, it’s a relevant question ― a
relevant answer to this question, and you know, because if I said ― if I
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address this question here, if I say, “Yes, I’m medical doctor,” some of it
remains [unintelligible] or confusion that I can practice at any time in
hospital in Maryland, but I’m unwilling to do so.
[COURT]: Right. But I guess the point is if he wants to ask a
question he can ask a question. All you need to do is answer the question.
If your attorney wants to follow up the question with, “Now, you testified
that you did get a medical degree, right?” “Yeah.” “But are you licensed to
practice medicine in Maryland?” “No.”
[FATHER]: All right.
[COURT]: So, you just have to wait for the follow up question if
there is a follow up question rather than try to explain every single thing.
[FATHER]: But in fact it’s going to be, based on the question asking
by Mr. Gudis, if it’ll be the same amount for question as much amount of
question he ask because every of his question needed follow up.
[COURT]: Well, maybe he does, maybe no, but that’s why you have
an attorney. Go ahead.
Mother’s attorney, in an attempt to ably represent his client, selected what
evidence he wanted to introduce at trial, controlled the flow of his cross-examination, and
followed with closing arguments. Even though it is not required of the trial judge, he
advised Father that he had an opportunity to clear up any perceived misrepresentations on
redirect examination.
Father’s attorney conducted his redirect examination, asking
questions in response to what was elicited during cross-examination.
In other words, Mother’s attorney did not commit fraud in his presentation of the
evidence, cross-examination, or his closing arguments. If Father believed that matters
were misrepresented, he had the opportunity to clarify them on redirect examination.
But, none of this rises to the level required under Md. Rule 2-535(b) because none of
these trial tactics prevented an actual trial in the circuit court. There is nothing that
19
occurred from which we can conclude that the circuit court abused its discretion in
denying Father’s motion for reconsideration based on fraud.
B.
Mistake
Father next argues that the judgment is based on mistake. Like fraud, mistake has
a narrow meaning in the context of Md. Rule 2-535(b). “Under Maryland law, an
enrolled judgment can be set aside for mistake or irregularity.
Mistake is limited,
however, to jurisdictional error, such as where the Court lacks the power to enter
judgment.” Pelletier, 213 Md. App. at 291 (quoting Green v. Ford Motor Credit Co.,
152 Md. App. 32, 51 (2003)) (emphasis added).
Father contends that the circuit court made a mistake in ordering him to pay 50%
of the children’s orthodontic costs and in granting him visitation that is conditioned on
him taking the children to swim practice. He claims that there was no evidence at the
hearing that would support these conclusions.
Father makes no allegations related to jurisdictional error of the circuit court.
Instead, Father seeks to appeal the circuit court’s order. As we noted, above, because
Father did not timely appeal the underlying judgment, he may not now appeal it under the
guise of a Md. Rule 2-535(b) motion. Because Father makes no claims regarding the
circuit court’s jurisdiction, his argument regarding mistake fails.
C.
Irregularity
Father’s final contention under Md. Rule 2-535(b) is that irregularity occurred
during the course of trial. In Tandra S. v. Tyrone W., 336 Md. 303, 318 (1994), the Court
of Appeals explained the meaning of irregularity within Md. Rule 2-535(b):
20
In Weitz [v. MacKenzie, 273 Md. 628,] 631, 331 A.2d 291 [(1975)], we
explained:
“[I]rregularity, in the contemplation of the Rule, usually
means irregularity of process or procedure . . . and not an
error, which in legal parlance, generally connotes a departure
from truth or accuracy of which a defendant had notice and
could have challenged.”
An example of an irregularity that would permit a court to set aside a
judgment existed in Maryland Lumber v. Savoy Constr. Co., 286 Md. 98,
405 A.2d 741 (1979). In that case, we held that the failure of a clerk to
notify a party of an entry of judgment constituted an irregularity, justifying
the court to set aside the enrolled judgment. Id. at 100-01, 405 A.2d 741.
In Thacker v. Hale, 146 Md. App. at 219-20, we expanded on the Court of
Appeals’ language, and said:
Irregularities warranting the exercise of revisory powers most often involve
a judgment that resulted from a failure of process or procedure by the clerk
of a court, including, for example, failures to send notice of a default
judgment, to send notice of an order dismissing an action, to mail a notice
to the proper address, and to provide for required publication. See Early,
338 Md. [639], 65 , 659 A.2d 1334 [1995]; Hardy v. Hardy, 269 Md. 412,
416, 306 A.2d 244 (1973); Gruss, 123 Md. App. [311,] 320, 718 A.2d 622
[1998].
Applying this narrow concept of “irregularity,” the Court of Appeals
consistently has rejected attempts to exercise revisory power over
judgments that have been called into question on their merits, rather than on
the basis of questionable procedural provenance. The Court has refused to
characterize challenges to the substance of judgments that were obtained
through appropriate procedures as “irregularities.” In Weitz, 273 Md. at
631, 331 A.2d 291, the Court reversed an order setting aside a confessed
judgment against a guarantor who established that the note was ambiguous
as to which obligations were being guaranteed. In Autobahn Motors, Inc. v.
City of Baltimore, 321 Md. 558, 563, 583 A.2d 731 (1991), the Court
reversed an order revising a judgment of condemnation in order to correct
the city’s erroneous measurements. Indeed, in the Court of Appeals’ most
recent Rule 2-535(b) decision, issued after oral argument in this case, we
see further support for such a narrow construction of “irregularity.”
21
Like fraud and mistake, Father does not come close to establishing irregularity
within its narrow construction. Father’s arguments relate to the trial time he was given
for cross-examination of Mother and the circuit court’s denial of his attempt to submit an
affidavit into evidence. These contentions do not create a failure of process or procedure,
but are attacks on how the court conducted the trial which is well within the trial court’s
discretionary power as permitted by the Maryland Rules and case law.
Md. Rule
5-611(a).8 See Bowie v. MIE, Props., Inc., 398 Md. 657, 684 (2007) (as a general
proposition, “[t]rial judges have the widest discretion in the conduct of trials, and the
exercise of that discretion should not be disturbed or appear in the absence of clear
abuse.”). Because Father’s grounds for irregularity cannot be said to be “irregular”
within the meaning of Md. Rule 2-535(b), the circuit court correctly denied Father’s
motion for reconsideration.
II.
Newly-Discovered Evidence
Father asserts that the circuit court erred in failing to grant him a new trial based
on newly-discovered evidence. Md. Rule 2-535(c) states, “On motion of any party filed
within 30 days after entry of judgment, the court may grant a new trial on the ground of
newly-discovered evidence that could not have been discovered by due diligence in time
8
Section (a) of Md. Rule 5-611 states:
Control by court. The court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
22
to move for a new trial pursuant to Rule 2-533.” Md. Rule 2-533 allows for a motion for
a new trial to be brought within ten days after entry of judgment.
Father contends that the orders from the EEOC and MSPB constitute newlydiscovered evidence that would grant him a new trial. Those orders were available on
November 8, 2013, and October 30, 2013, respectively. However, the judgment in the
underlying case was entered on October 30, 2013, which was nine days before the EEOC
order and on the same day as the MSPB order. Father’s proposed newly-discovered
evidence was, thus, discovered within 10 days of the entry of judgment. By the very text
of Md. Rule 2-535(c), Father is barred from bringing these claims under a motion to
reconsider as the evidence was discovered in time to file a motion for a new trial under
Md. Rule 2-533.9 Accordingly, the circuit court did not abuse its discretion in denying
Father’s motion for reconsideration based on newly-discovered evidence.
III.
Attorney’s Fees
Father argues that the circuit court abused its discretion by denying his request to
reconsider the award of attorney’s fees to Mother. He bases this argument on the
assumption that the circuit court erred in denying his Md. Rule 2-535 motion.10 Father
argues that “there is substantial justification of him having brought the motion for
9
Had Father timely filed his motion regarding the newly-discovered evidence, he
could have requested a new trial under Md. Rule 2-533. Because he waited until after 10
days after the judgment, he was restricted to requesting a new trial based on newlydiscovered evidence under Md. Rule 2-535(c).
Father attempts to introduce an argument about the “multiple times asked for a
settlement” in support of his contention that he should not have to pay attorney’s fees.
Father did not preserve this argument by making it a part of his motion for
reconsideration.
10
23
modification of Child Support and Visitation if there had not been mistake, fraud, [or]
irregularity of the issues. Thus, the Court of Special Appeals should reverse the trial
court’s decision ordering [Father] to pay legal fees.” As we explained above, the circuit
court did not abuse its discretion in denying Father’s motion to reconsider. As a result,
Father’s argument that attorney’s fees were wrongfully awarded fails.
JUDGMENT OF THE CIRCUIT COURT
FOR
MONTGOMERY
COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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