INTHE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2014 No. 719 STEPHEN D. CHAMBERLAIN Appellant v JUDITH C. CHAMBERLAIN Appellee APPEAL FROM THE CIRCUIT COURT OF ANNE ARUNDEL COUNTY (THE HONORABLE JUDGE PAUL F. HARRIS, Jr.) APPELLANT’S REPLY BRIEF STEPHEN D. CHAMBERLAIN Pro Se Litigant Personal Information RedactedTABLE OF CONTENTS TABLE OF CONTENTS . “a4 TABLE OF CITATIONS... ......... STATUTES AND RULES CERTIFICATE OF SERVICE COUNTER-ARGUMENT..... 1. MS. CHAMBERLAIN IS SILENT ON THE SUBJECT OF JURISDICTION. THE ORAL AGREEMENT WAS THE PRODUCT OF A PROCEEDING HELD WITHOUT JURISDICTION AND THEREFORE VOIDBYLAW «0.0.2.0. 0 eee eee ee i A. Evidence and Settled Law... 2.2 B. The End Does Not Legally Justify The Means C. Appellee’s Silence on Matters of Jurisdiction is Deafening . I. THE RECORD CONTAINS SUBSTANTIAL EVIDENCE MR. CHAMBERLAIN WAS COERCED INTO PLACING AN ORAL AGREEMENT ON THE RECORD ON APRIL 18,2014... . 3 A. This Case Is An Exception To The General Rule Concerning Appeals of Consent Orders Seen eee 3 B, The Totalty of Circumstances Must Be Reviewed To Understand Duress... 6.04... 4 C. There Was No Breach Of Contraet To Enforce And Appellee’s Own Statements Prove There Was No Need For A Declaratory Judgment: Both Parties Have Always Agreed With The Meaning and Intent of The Contract Language Le : D. Judicial Action or Inaction Can Be A Catalyst For Duress E, Not Only Can Legal Representation Fail To Protect A Litigant From Duress, A Lawyer Can Add To The Duress... 2.2... 2. 9Ill. THE TRIAL JUDGE”S DENIAL OF THE MOTION REQUESTING DECLARATION OF MISTRIAL PROVIDES EVIDENCE HE WAS AWARE THERE WAS NO CONSENT PRIOR TO SIGNING anes UE MO eee eee shy TV. APPELLEE’S UNSUPPORTED ASSERTIONS ARE CONTRADICTED BY THE EVIDENCE INTHE RECORD. ........- 13 CONCLUSION .........-. pnonoodoncnoonobondonnnS 14 APPENDIX. ©... 0000-00 eve e eee ee veces I Statement of Purpose. eee I Reply to Supplement to Statement of Grounds and Authorities in Support Motion for Summary Judgment... 2.0 ......00-- .. Apx. A ‘Transcript Excerpt from January 9, 2014 Summary Judgment Hearing . . . Apx. E Response and Opposition to Motion to Revise Denial of Summary Judgment Motion. 6.02.0... Apx. I Future Modification Provision of Marital Settlement Agreement .. . . . Apx.M Affidavit of Stephen D. Chamberlain . . Apx.N TABLE OF CITATIONS Cases Anne Arundel County v, Ebersberger, 62 Md. App. 360, 367-6 (1985). ....... 0.1 Attorney Gen. v. A.A. County School Bus, 286 Md. 324, 327, 407 A.2d 749, 752 (1979)...Boyds Civic Ass'n v. Montgomery County, 526 A. 2d 598, 609 (Md. 1987) ol Boyds Civic Ass'n v. Montgomery County Council, 309 Md. 683, 689 (1987)... . . 2 Brownlow v. Schwartz, 261 U.S. 216, 217-18 (1923)... 6.2... eee eee ee Coburn v. Coburn, 342 Md. 244, 250 (1996) 6... ee eee 1 County Comm’rs v. Day’s Cove Reclamation Co., 122 Md. App. 505, 517 (1998)... 1 Fooks’s Executors v. Ghinger, 172 Md. 612, 192 A.782 (1937). . . ae Graham v. Graham, 190 Md. 434, 444 (1948)... . Hamilton vy. McAuliff, 353, A.2d 634 (Md. 1976). . . . Hammond vy. Lancaster, 194 Md. 462, 471 (1950)... .. . Hatt v. Anderson, 297 Md. 42, 45 (1983)... 2. ee eee eee crs Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 (1962)... 1 Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007) ..... «1 Post v. Bregman, 349 Md. 142, 159 (1998)... 2.6... ee oo 2 Reyes v. Prince George’s County, 281 Md. 2279, 380 A.2d 12, 297(1977)...... 2 State v. Parker, 334 Md. 576, 584 (1994)... ..........0. State v. Peterson, 315 Md, 82,553 A.2d at 677 (1989) .. 2.2... wee ee eee dl Stevenson v. Lanham, 127 Md. App. 597,612 (1999)... 0... 002.00 0005 1 Suter v. Stuckey, 402 Md. 211 (2007)......... Statutes & Rules Md. Rule 2-324 Preservation Of Certain Defenses (b) Subject matter jurisdiction. Whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Mad. Rule 16-813 MARYLAND CODE OF JUDICIAL CONDUCT Rule 2.9 Ex Parte Communications(c)A judge shall not investigate adjudicative facts in a matter independently, and shall consider only the evidence in the record and any facts that may properly be judicially noticed. Md. Courts and Judicis Proceedings § 1-501. Jurisdiction and powers in general. The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal. M4d.Courts and Judicial Proceedings § 3-409 Discretionary Relief (a) In general. -- Except as provided in subsection (4) of this section, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties, CERTIFICATE OF SERVICE Thereby certify that on this __ of February, 2015, two copies of the foregoing Appellant’s Reply Brief was sent via FEDEX prepaid to M. Evelyn Spurgin, Esquire, 221 Duke of Gloucester Street, Annapolis MD, 21401, Attorney for Appellee. S2rooo— Stephen D. ChamberlainCOUNTER-ARGUMENTS I MS. CHAMBERLAIN IS SILENT ON THE SUBJECT OF JURISDICTION. THE ORAL AGREEMENT WAS THE PRODUCT OF A PROCEEDING WHICH WAS HELD WITHOUT JURISDICTION AND THEREFORE VOID BY LAW, A. Evidence and Settled Law. The evidence is clear and convincing that on April 18, 2014, the trial court proceeded to hear a case in the clear absence of a justiciable controversy. (See Plaintiffs Request for Voluntary Dismissal (E-112), Defendant’s Reply (E-115) and the transcript excerpt discussing the mootness issue prior to the commencement of the hearing. (E-181-191) This evidence is unrefuted, and shows beyond any doubt, the trial court proceeded to hear a case without subject matter jurisdiction. Statutory law is clear that the Circuit Court’s jurisdiction does not extend “where by law jurisdiction has been limited or conferred exclusively upon another tribunal.” (Md. Courts and Judicial Proceedings 1-501) Appellate opinions have never wavered from the settled law that moot cases will not be heard except under certain conditions and only at the appellate court level (See Attorney General v. Ane Arundel County Sch. Bus Contractors Ass’n., 286 Md. 324 (1979); Hammond v. Lancaster, 194 Md. 462, 471 (1950); Human Resources v. Roth, 398 Md. 137, 143, 919 A.2d 1217, 1221 (2007) Hamilton v. MeAuliff, 353 A.2d 634 (Md. 1976); County Comm'rs v. Day's Cove Reclamation Co., 122 Md. App. 505, 517 (1998); Boyds Civie Ass'n v. Montgomery County, 526, A.2d 598, 609 (Md. 1987); Coburn v. Coburn, 342, Md. 244, 250 (1996); Stevenson v. Lanham, 736 A.2d 363, (Md. Ct. Spec. App. 1999); State v. Parker, 334 Md. 576, 584 (1994); State v. Peterson, 315 Md. 82, 553 A.2d at 677 (1989); Reyes v. Prince George's County, 281 Md. 2279, 380 A.2d 12, 297 (1977); Hayman v. St. Martin's Evangelical Lutheran Church, 227 Md, 338, 343 (1962); Brownlow v. Schwartz, 261 U.S. 216, 217-18 (1923)).Nor have decades of case law left any doubt that “the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action.” (Boyds Civie Ass'n v. Montgomery County Council, 309 Md. 683, 689 (1987) quoting Hatt v. Anderson, 297 Md. 42, 45 (1983); See Anne Arundel County v. Ebersberger, 62 Md. App. 360, 367-6 (1985); Post v. Bregman, 349 Md. 142, 159 (1998). B. The End Does Not Legally Justify The Means Ms. Chamberlain seems intent on convincing this Court that having coerced an oral agreement from Mr. Chamberlain during the April 18, 2014 hearing, nothing else matters. Legal reasoning that would claim the end of litigation is more important than the means of attaining that end is extremely tenuous. Ms. Chamberlain asks this Court to abandon decades of settled law, overlook how the oral agreement ended up on the record, and simply rely on the fact that “normally” an oral agreement on the record is binding. “Normally” a suspect’s confession is admissible as well. But in the instant case, the analogy would be for a prosecutor to ask this Court to ‘only consider the signed confession and disregard the fact the suspect was not read his Miranda rights, and unlawfully held in a room until he was coerced into signing it. An oral agreement that emanated from within a hearing held without subject matter i unlawful means. ‘isdiction, and without statutory authority. as valid as the confession obtained through, “If a court acts without jurisdiction, its action is a nullity....” (Graham v. Graham, 190 Md. 434, 444 (1948). “Any attempt by such a Court to hear and determine a case not within either its inherent or statutory powers would result in a void decree rendered without subject matter jurisdiction...” Fook’s Executors v. Ghinger, 172 Md. 612, 192 A.782 (1937). (emphasis and underline added)The existence of an oral agreement on the record during the April 18, 2014 hearing is irrelevant considering its existence was only possible because the trial court proceeded es . an C. _ Appellee’s Silence on Matters of Jurisdiction is Deafening The case was declared moot by both parties in formal pleadings. (E-113, E-116). It is settled law that a party cannot confer jurisdiction on the Court. Neither can the Court confer jurisdiction upon itself. Withdrawal of the Request for Voluntary Dismissal did not “un-moot” the issue. (E-190) Ms. Chamberlain did not refute the fact the issue was moot. Not before the hearing. Not during the hearing. (E-181-191) And not after the hearing. Ms. Chamberlain was completely ilent on the matter; the transcript is devoid of any discussion attempting to explain how it could be possible the issue she definitively declared moot 4 days earlier was now “not moot.” In fact, during the hearing Ms. Chamberlain’s counsel again states the issue is moot. (E-193) The evidence on the record leaves no doubt the trial court was aware the issue was moot and that there was no justiciable controversy before it. The trial court has no authority to conduct it’s own investigation or consider evidence not on the record. (Md. Rule 16-813 2.9 (¢)). The case was required to be dismissed. (Md. Rule 2-324(b); Md. Courts and Judicial Proceedings 3-409(a)(1)). I. THE RECORD CONTAINS SUBSTANTIAL EVIDENCE MR. CHAMBERLAIN WAS COERCED INTO PLACING AN ORAL AGREEMENT ON THE RECORD ON APRIL 18, 2014. A. This Case Is An Exception To The General Rule Concerning Appeals of Consent Orders. In citing a passage from Barnes v. Barnes, which referenced a quote from Suter v. Stuckey, Ms. Chamberlain hopes this Court focuses only on the general rule that an oral agreement made on the record in open court is binding on the parties. While this isgenerally true, the Suter Court recognized an exception that is relevant to the instant case. The Suter Court stated: “The rule is otherwise if there was no actual consent. If there was no actual consent because the judgement was coerced, exceeded the scope of consent, or was not within the jurisdiction of the court, or for any reason consent was not effective, an appeal will be entertained.” (emphasis added) (Suter v. Stuckey, 402 Md. 211 (2007) Not only is an appeal proper when there are questions of jurisdiction, but the Suter Court made clear that if the oral agreement was made while under duress, coerced, or for any reason consent was not effective, an appeal is proper. B. The Totality of Circumstances Must Be Reviewed To Understand Duress. The totality of the circumstances leading up to and including the judicial conduct of the April 18, 2014 hearing, as outlined in the Appellant’s Brief, substantiates Mr. Chamberlain's contention that he was under duress at the time of the oral agreement, that he was coerced into making the oral agreement, had no viable alternative at the time, and immediately claimed as much as soon as he was not under the dominion of the trial judge. (The duress only subsided after Mr. Chamberlain’s Motion to Strike Appearance of his attorney was granted. Once he was recognized by the Court, Mr. Chamberlain immediately filed a 12 page Motion Requesting Declaration of Mistrial and days later, an 8 page Motion to Dismiss based on the Court’s lack of jurisdiction. (E-129, E-166) The Motion Requesting Declaration of Mistrial was denied by the tri 1014 Order.) judge on the same day he signed the June 5, Mr. Chamberlain has attempted to defend himself against this facially frivolous and vexatious litigation in every legal way possible. And while a de novo review of the pleadings in this case would be time consuming, no other process could more effectively identify the substantial and progressive nature of the duress brought to bear in this case.(See Appellant’s Brief Statement of Facts and Appellant’s 278 page Record Extract for the evidence). The exigencies in which the Defendant found himself have been explicitly stated in numerous pleadings but will be summarized for clarity here: + The Plaintiff initiated a claim for which no relief could be granted. (E-22) + The Plaintiff maintained this action for over 7 months before filing their own Request for Voluntary Dismissal. (E-112) +The Court denied a Motion to Quash and authorized a subpoena of Mr. Chamberlain’s financial records fora declaratory judgment action conceming_a single sentence in a contract about college applications. (E-31, E-95) + The Plaintiff increased the duress by filing an equally meritless action seeking an upward modification in child support for_an_adult son who would already be receiving contractual support for 4 years after high school. (E-104) + Plaintiff’s counsel withheld information directly asked by Judge Wachs during the Summary Judgment Hearing which would have shown the issue to be moot 4 months before trial. (E-96-101, B-157) + The Plaintiff filed a formal pleading stating the only issue was moot. (E-113) + The Defendant provided evidence the issue had been moot for over 4 months. (E-116) + The Defendant assumed an additional $32,000.00 in debt financing the defense against this action. C. There Was No Breach Of Contract To Enforce And Appellee’s Own Statements Prove There Was No Need For A Declaratory Judgment: Both Parties Have Always Agreed With The Meaning and Intent of The Contract Language. ‘The duress in the instant case began with Ms. Chamberlain filing a Complaint to Enforce without identifying any breach of contract, (E-22) She also asked for a declaratory judgment concerning a single sentence in a contract while her own initialpleading directly shows her interpretation and understanding of the language is the same as Mr. Chamberlain’s: “To Plaintiff's information and belief, pursuant to the language of the Marital Settlement Agreement, John cannot even apply to colleges to determine whether or not he qualifies for scholarships or other forms of non-loan based aid without an agreement from the Defendant.” (E-23) No fewer than 7 additional times does the record reflect explicit statements by Ms. Chamberlain or her counsel that all three parties must agree on a school prior to applications being sent and again prior to enrollment for Mr. Chamberlain to have an obligation to pay for the college expenses, yet she sued Mr. Chamberlain in an attempt to get the Court to re-write that clear and unambiguous language so the son could apply to “the schools of his choice” (E-24): “John cannot even submit an application for enrollment because the Defendant refuses to agree.” (E-71) “The second part of the paragraph requires the parties agree on ‘the selection of, which college or university each child shall attend...’ There is no conditional language in this section either.” (E-71) “As is clear from the face of the Agreement, the last sentence of Section 8 requires that selection of each child’s college ‘shall be made by Husband, Wife and the Child, prior to application and prior to enrollment.”” (Reply Brief Apx. B) “Therefore, if the child is seeking any contribution from the Defendant toward his college expenses, as is clearly contemplated and required by the Marital Settlement Agreement, the parties must agree in advance.” (Reply Brief Apx. B) Ms. Warren - “Because pursuant to the terms of the agreement, it says that the parties must agree prior to application and prior to enrollment. The agreement is specific on that point.” (Reply Brief Apx. F) Ms. Warren - “Because, your Honor, if he applies and if Mr. Chamberlain maintains that he does not agree to the school that John chose, then he would nothave any obligation to contribute to the college expenses as provided in the Agreement.” (Reply Brief Apx. G-H ) “The Plaintiff's counsel did not argue that, ‘John could not apply for any college until John, the Plaintiff and the Defendant had agreed on the selection of the school,” but, rather, that pursuant to the terms of the Marital Settlement Agreement, ‘It says the parties must agree prior to application and prior to enrollment’ and ‘assuming he is admitted somewhere . . . and I think that there is an issue now in regard to his ability to apply if he seeks to enforce the contract regarding the Defendant’s obligation to contribute to the expenses.”” (Reply Brief Apx. K) During Cross Examination - Q: “You all three had to select the college which Mr. ‘Chamberlain would have to pay for, correct? Answer: “Yes.” Q: And that’s how you read it? Answer: “That we all three needed to agree - -” Q: “You all three needed to agree in order for Mr. Chamberlain to have to pay for it because it says the selection of which college the child shall attend shall be made by the three of you, correct?” Answer: “Yes.” Q: “All right. You agree with that? Answer: “Yes.” (E-246-247) D. Judicial Action or Inaction Can Be A Catalyst For Duress. All litigation involves rulings from the Court: some rulings before trial and many during trial, There is, however, a significant difference between discretionary rulings made by the Court after hearing opponents in an action provide law and legal reasoning in support of their own view of a matter, and a Court failing to comply with clear law when the law has been cited, discussed, explained, and either one party is silent (showing concurrence) or both parties are in agreement concerning the law and its application. ‘The former is a byproduct of a trial judge’s inherent authority to hear and try cases and effort to make legal determinations. These rulings are only questioned when clearly erroneous or proven to be an abuse of discretion. The latter invites questions of bias, misconduct, or incompetence, and compels duress.Acting under the color of law, in the face of incontrovertible evidence the issue before the Court was moot, the trial judge acted outside clearly established statutory authority and forced Mr. Chamberlain to stand for trial. It matters not if a judge on this Court would consider this action, or the other judicial decisions as causing duress. Duress is evaluated by the specific circumstances on the specific individual. Citizens have an expectation of competence and fairness when under the auspices of the judicial system. When the evidence shows there is no justiciable controversy, a litigant arrives in Court to pray for fees due to the maintenance of frivolous action against him, and is then subjected to a hearing by a tribunal in the clear absence of jurisdiction, that litigant would necessarily feel enormous duress. Failure of the trial judge to comply with the clear statutory language in Md. Rule 3-405 (a) (1) mandating that 3rd party beneficiaries to an action seeking declaratory relief, as this action did, be made a party to the case also significantly increased the duress on Mr. Chamberlain, This statute provides the trial judge no discretion. The transcript provides evidence the issue was exhaustively discussed, the language and purpose of the statute clearly stated, and Ms. Chamberlain’s counsel in agreement it was required. (E-195-211) Failure to make the adult son a party to the instant case directly exposed Mr. Chamberlain to further ation by the son after the trial concluded. In fact, future litigation was previously threatened by Plaintiff’s Counsel. (E-202) While directing parole evidence be taken prior to making a determination as to the clarity of the contractual language falls more into a category of structural error, this basic judicial error was severely prejudicial to Mr. Chamberlain who had argued for months that the language was clear and unambiguous. ‘This violation of one of the most basic canons of contract interpretation, in the immediate aftermath of the previously discussed judicial decisions, created more than just a perception that the rule of law would not be the foundation of the proceeding.No reasonable person can argue that under these extraordinary circumstances, a litigant would not be under severe duress. There is an inherent trust in the judicial system and the rule of law. When it becomes apparent that a Court is willing to move forward without jurisdiction, disregard clear law, and not follow the most basic of judicial processes, trust in the judicial system erodes, the litigant loses faith the trial judge will comply with the law, and belief in one’s defense is replaced with fear. The duress based on the judicial action and inaction in this case is clearly palpable. Not Only Can Legal Representation Fail To Protect A Litigant From Duress, A Lawyer Can Add To The Duress. It is important to dispel the myth that simply having counsel by a litigant’s side can, in all cases, protect that client from feeling duress or from being coerced into making an oral agreement on the record during a proceeding. The litigant’s right to exercise his free will is removed, not by legal advice of counsel, but by confirmation that the rule of law will not be followed, the evidence will not lead to a just determination, the attomey is impotent to prevent the injustice, and the resultant dictate of the trial judge will have to be abided by until appealed. In this case, Mr. Chamberlain would have been compelled to pay for a college he could not afford. Waiting 2 years for appellate review was not a viable alternative. The conduct of the trial judge to this point clearly indicated an “impossibility of performance” defense would be an impossibility despite financial records proving as much. Mr. Chamberlain believed he would be held in contempt and incarcerated without the ability to purge himself, Immediate past conduct is a valid predictor of immediate future conduct. While the law clearly does not allow this, this ‘outcome was a credible possibility given the trial judge’s previous conduct. In fact, having counsel in this case added to the duress in two critical ways. First, Mr. Chamberlain’s counsel could not have been more versed in the law nor done a better job of presenting the evidence and the law to the presiding judge. Witnessing a capable, competent lawyer be absolutely impotent to convince a judge to apply clear statutory law,not once, but twice during the initial portion of a trial significantly added to the duress Mr. Chamberlain was already experiencing. (E-181-211) Secondly, once a litigant’s attorney is himself under duress, that duress is transposed onto his client. Despite having a witness to the conversation which took place between Mr. Chamberlain and his attorney in the aftermath of the unrecorded in chambers discussion, this Court may be inclined to disregard Mr. Chamberlain’s consistent statements in the record as to what his attomey relayed the trial judge said during that off-the-record meeting. Nevertheless, the record speaks for itself; something forced Mr. Chamberlain’s attorney to fold: + A thorough review of the pleadings prior to April 18th, 2014 reflect the strongest and most capable of advocacy in Mr. Chamberlain’s defense by his attorney. + A review of the record shows Ms. Chamberlain provided no substantive support for her request for declaratory relief over 7 months, nor had any answers to the expertly crafted legal defense submitted by the defense over the same period. + Mr. Chamberlain’s attorney was prevented from presenting a defense or providing any evidence because the trail judge abruptly interrupted him in the middle of his withering cross examination of Ms. Chamberlain, proving she had committed significant perjury. (E-236-259) + During cross-examination the trial judge stated: “I'll tell you what, I think I’ve heard a lot right now. I want to see counsel in chambers. Maybe we can save a little time.” (emphasis added) (E-259) + The transcript of the April 18, 2014 hearing reflects a defense attorney committed to achieving justice and continues to show the strongest advocacy for his client. +The record then reflects that in the immediate aftermath of an unrecorded in chambers discussion, Mr. Chamberlain suddenly and improbably surrendered his defense by placing an oral agreement on the record. 10MD.Rule 16-813 Rule 2.9 contains extensive guidance for judges concerning settlement discussions. For instance: “A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.” “The judge plays an important role in overseeing the settlement of disputes, but right-to be heard according to law, Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (a) whether the parties have requ participation by the judge in settlement discussions, . . .” -d or voluntarily consented to a certain level of Not only did neither party ask for time to consider a settlement, the record reflects Mr. Chamberlain’s desire to have a Court hear the case until it was admitted that the issue had been moot for over 4 months. ‘The record shows that dismissal was requested by Ms. Chamberlain the week prior (F-193) but Mr. Chamberlain would not agree without recovering some of his legal fees. Mr. Chamberlain had been determined for months to make Ms, Chamberlain prove her case in court, as she clearly had no ease. Something was discussed during the in chambers meeting that caused Mr. Chamberlain's venerable and capable attomey to immediately and completely abdicate his advocacy, demand Mr. Chamberlain settle, and flatly state he would not elucidate critical information from Mr. Chamberlain during direct examination that would be necessary for a successfull appeal should the trial continue. No argument had been heard yet as to the clarity or ambiguity of the single contractual sentence which had driven the & months of litigation to that point, The trial judge is on record stating “You know, I'm hearing all this in a vacuum, quite frankly. I have no idea what the agreement says.” (E-186) Whether Mr. Chamberlain’s attorney was directly threatened should he not convince his client to settle, or whether there was significant judicial overreach by the trial judge in projecting how he would rule when he had not even begun to hear argument about the disputed contract language, it is an undeniable fact that after developing a "record in formal pleadings for 8 months for which Ms. Chamberlain had no substantive response, and vociferously attempting to expla to the court what the law required during the hearing, he emerged from the in chambers discussion defeated. No reasonable person can claim that a litigant who has an attorney by his side can always be shielded from duress. In the instant case, Mr. Chamberlai attorney added to the duress by presenting, in the presence of his client, clear statutory law any first year law student could grasp only to have the presiding judge not comply with it. That demonstration created fear the law would not be followed. Then, the record is clear that an unrecorded conversation with the trial judge precipitated the complete and total reversal of a defense counsels position and depth of advocacy, which had been maintained through more than 7 months of litigation and throughout the trial until the proceedings were halted, Mr. Chamberlain’s attorney was so distraught by what had just transpired, that after the hearing he refused to bill Mr. Chamberlain for that trial. Any litigant whose attorney, for whatever reason, abandons him mid-trial creates enormous duress at that moment. I. THE TRIAL JUDGE’S DENIAL OF THE MOTION REQUESTING DECLARATION OF MISTRIAL PROVIDES EVIDENCE HE WAS AWARE THERE WAS NO CONSENT PRIOR TO SIGNING THE JUNE 5, 2014 ORDER. Mr. Chamberlain’s Motion Requesting Declaration of Mistrial, if read in it’s entirety, leaves no room for doubt in any reader’s mind that the oral agreement was the result of duress due in large part to improper judicial decisions and errors during the trial. Suggestions that Mr. Chamberlain delayed identifying the duress during the hearing are not supported by the record. The record leaves no doubt that the Marital Settlement Agreement cannot be modified by the Court. (E-57) The Marital Settlement Agreement is clear that ANY. modification to it’s terms be in writing and be signed by both parties. (Reply Brief Apx. 12M) Yet the trial judge signed an Order modifying the agreement without the consent or signature of Mr. Chamberlain. Both the Motion Requesting Declaration of Mistrial and the Motion to Dismiss, filed prior to the June 5, 2014 Order, corroborate this assertion. IV. APPELLEE’S UNSUPPORTED ASSERTIONS ARE CONTRADICTED BY ‘THE EVIDENCE IN THE RECORD. Any assertion made by Ms. Chamberlain that is not corroborated or supported by evidence should be dismissed. They are made without supporting evidence because they are mostly demonstrably false, or at best, misleading. By way of example: Assertion: “The Mother was seeking to enforce a provision of the parties’ Marital Settlement Agreement and a later Consent Order regarding payments for the parties’ child’s college educatior Facts; The Complaint to Enforce identifies no breach of contract. The son had not begun college, no payments were due, therefore the issue was not ripe. The ‘Mother was not seeking to enforce a contract provision. (E-22) Assertion: “On April 14, 2014, the Mother filed a Request for Voluntary Dismissal because an additional request to modify child support had been filed, the minor child had applied for college and a payment determination could be made when the actual tuition bills arrived.” Facts: The Request for Voluntary Dismissal was filed because the only issue before the Court was moot and Ms, Chamberlain had no case to present. (E113) Assertion: “The Court had jurisdiction to hear the case.” “The issues before the Court were not moot.” Facts: The Request for Voluntary Dismissal (E-112), Mr. Chamberlain’s Reply (E: 115) and the official transcript (E-181-194) provide incontrovertible evidence these assertions are demonstrably false. Furthermore, the record is devoid of any argument or statement whatsoever by Ms, Chamberlain supporting this assertion. 18CONCLUSION Ms. Chamberlain’s entire case hangs by the single thread this Court will disregard 7 months of formal pleadings and decades of case law to uphold an oral agreement made on the record under duress and during a trial for which the Court had no authority to preside over. There is no evidence, other than the coerced oral agreement, to even suggest a reason Mr. Chamberlain wanted anything other than a just determination based on the merits of the case. ALLEGATIONS THIS IS “BUYER’S REMORSE” OR A CHANGE OF MIND ARE UNSUPPORTED AND WRONG. This case is about bringing and maintaining frivolous legal action to create enough duress to coerce an agreement, The evidence shows a serious miscarriage of justice has occurred. The som asked the father for permission to apply to two schools. The father AGREED to pay for one of those two schools: Auburn University. The son applied, was accepted, and offered a 4 year academic scholarship. And THEN the father was sued to pay for the school “of HIS SON'S choice” which would cost the father $100,000 more than Auburn. To date, the parties have spent over 17 months litigating over one, clear and unambiguous sentence in a contra it. After suffering through this litigation, suggestions that Mr. Chamberlain would willingly agree to unwritten, generic terms thrown together in a matter of minutes in a Courtroom hallway in an effort to end the litigation are absurd. Doing so would only expose him to future litigation over less clear terms. None of the legal reasoning or contentions made by Mr. Chamberlain are his “opinion”. Alll legal contentions and legal reasoning provided the trial court and this Court are based on clear statutory law and are from the opinions of either the Court of Special Appeals, the Maryland Court of Appeals, the United States Supreme Court, other Federal Courts or the Appellate Courts of other states. The legal reasoning provided by Ms. Chamberlain is that regardless of “how” the oral agreement came to be, it must stand simply because it is on the record. She asks this Court to ignore the meritless legal action, the lack of jurisdiction, the judicial error, the 14indicial overreach, the lack of assent and the notable duress. ‘There is no citation in the history of jurisprudence in this country that would support the contention that under these circumstances the oral agreement is valid or lawful. Assertions that “this Court cannot substitute its judgment for the Trial Court and make new factual findings that the Father acted under duress when he consented to the Agreement” are inarguably wrong. It is the duty and responsibility of an appellate court to review the judgment of the trial court, especially under these circumstance: Determining issues of jurisdiction, evaluating claims of duress, and conducting a de novo review of the case regarding the application, interpretation, and construction of law is proper, appropriate, statutorily authorized, and necessary by this Court to prevent a miscarriage of justice. Notwithstanding clear law that declaratory judgment actions cannot be maintained without a justiciable controversy and statutory limitations on hearing moot cases, should this Court be convinced of Appellee’s reasoning, there would be no end to the line of litigants who would bring moot cases before the Court and subject their opponents to the emotional, psychological and financial duress of a trial in the hope they could obtain through that duress what they could not obtain legally without it. The June Sth Order should be vacated and the case remanded to the Circuit Court with directions to dismiss it. STATEMENT PURSUANT TO MD. RULE 8-504 (a) (9) Thereby certify that the foregoing Brief was prepared with proportional type with 1.5 spacing and Times New Roman font size 13. Respectfully submitted, Secan5 Stephen D. Chamberlain, Appellant 16IN THE CIRCUIT COURT OF MARYLAND FOR ANNE ARUNDEL COUNTY i JUDITH C. CHAMBERLAIN : Plaintiff . v. . | | STEPHEN D. CHAMBERLAIN * Defendant . CASE NO. 02-C-09-139690 REPLY TO SUPPLEMENT TO STATEMENT OF GROUNDS AND AUTHORITIES IN SUPPORT OF MOTION FOR wt SUMMARY JUDGMENT a | Comes now the Plaintiff, Judith C. Chamberlain, by and through her attorneys, Samuel J. Brown and Marietta B. Warren, and in opposition of Defendant's Motion for Summary Judaient and Reply to Defendant's Supplement to Statement of Grounds and Authorities in Support of Motion for Summary Judgment states as follo I 1, This matter came before the Court because of Defendant's refusal to cooperate in ‘g00d faith, as required by the parties’ Marital Settlement Agreement, regarding the selection of a college for the parties’ youngest child. 2. In the complete series of e-mail communications between the parties which was | sttached and incorporated in the Affidavit of Judith C. Chamberlain, the Defendant refused to respond regarding the child's choice schools, claiming that he could not do so until he had information regarding the cost of tuition, room and board, application fees, etc. 3. In an e-mail sent to the Plaintiff on June 30, 2013, the Defendant states that, “Once the associated costs with specific schools is known, we can determine which schools [ohn] should apply to and possibly attend. Until then, I suggest he limit himself to schools that | offer in-state tuition.” See Exhibit 1 to Affidavit of Judith C. Chamberlain, page 9. | 4. As the Defendant is well aware, it is impossible for the Plaintiff and the child to provide specific scholarship and financial aid information to most schools until an application for | admission has been submitted and the application package has been reviewed by the school's financial aid department. MBWjamsabw6s06arorsss¥01021¢l 5. Additionally, the Defendant is attempting to unilaterally insert additional terms to | the parties’ Marital Settlement Agreement, limiting the child to applying only to schools that offer in-state tuition status. | 6. While the Defendant is attempting to distract the Court from the ultimate issue at hand, the fact remains that the parties have been unable to reach an agreement based on the Defendant's unwillingness to cooperate. In addition to the implied duty of good faith, Section 29. | | Of parties’ Marital Settlement Agreement itself explicitly requires the parties to “perform such acts as may be reasonably required to effectuate the purposes of [the] Agreement." | 7. It must be noted that the Defendant has refused to provide Plaintiff or her counsel ‘with any information regarding his current residential address, despite his insistence on the minor [child only applying to schools that offer in-state tition status. This is contrary to the provisions of the Marital Settlement Agreement, which requires each party to “keep the other informed of | his or her then residence from time to time.” (See Section 28 of the Marital Settlement | Agreement) Furthermore, hed ths information been provided when requested, the parties may | hhave been able to identify additional colleges to which the child could qualify as an in-state student and which provided his preferred course options. 8. Plaintiff agrees that there is no separate cause of action for a breach of the implied | duty of good faith, nor has the Plaintiff sought specific relief on that issue, as the Defendant ||implies. However, the Defendant is required to act in good faith in regard to the Plaintiff and the child's efforts to reach an agreement on college applications, which has not occurred. 9.__Asis clear from the face of the Agreement, the last sentence of Section 8 requires that selection of cach child's college “shall be made by Husband, Wife and the Child, prior o application and prior to enrollment.” 10. Therefore, if the child is seeking any contribution from the Defendant toward his college expenses, as is clearly contemplated and required by the Marital Setlement AReemen the parties must agree in advance. It is for this reason that the Plaintiff requested an expedited ———— rere hearing on this issue, as the deadlines for early enrollment have long since expired. | 11, In the alternative, it appears that the Defendant now concedes that the Agreement | | is ambiguous on an essential term, namely what happens if the parties are unable to agree. "A complete copy ofthe Marital Setement Agreement is attached hereto and incorporated herein as Exhibit A. The copy atached to Plaintf’s copy of Defendant's Motion for Summary Judgment was not complete and was | missing pages. 1 APX.B12, Ifthe Court accepts the Defendant's argument, namely that the language requiring an agreement prior to application and enrollment is merely an "agreement to agree", the effect is | | not that the entirety of Section 8 regarding college education becomes unenforceable, but, rather, | only that the "agreement to agree" lacks enforceability. As a result, the Defendant remains obligated to pay in full the cost of tuition, room and board, books, registration fees and reasonable application fees for four consecutive years of undergraduate college education for the | parties’ child. | 13. As already addressed in Plaintiff's Memorandum in Opposition to Motion for || Summary Judgment, Section 8 of the Marital Settlement Agreement imposes two separate | obligations on the parties. The first is stated without condition or caveat, namely that “After the funds from (certain college savings accounts] have been depleted, Husband shall pay the costs | of tuition, room and board, books, registration fees, and reasonable application fees incident to providing each Child with an undergraduate college education for four consecutive years of college.” The second provides that “The selection of which college...each Child shall attend shall be made by Husband, Wife and the Child, prior to application and prior to enrollment.” The most basic and objectively reasonable interpretation of the language requiring the Defendant to contribute to college expenses is not conditional on the parties' prior | Agreement? 14, It is to resolve this ambiguity and clarify each of the parties’ obligations that Plaintiff has requested a declaratory judgment. 15. The Defendant bases his argument on Horsey v. Horsey, 31 Md. 392 (1990) | However, Horsey further suppors Plaintiff's position that if the “agreement to agree” is stricken || fom the Marital Settlement Agreement, it does not excuse Defendant from his obligation to pay |]the cost for his children's college expenses, but, rather, simply removes the provision for ‘agreement prior to application and admission, 16. _ In finding that the parties’ agreement to "attempt to agree upon a fair reduction in alimony payments" was unenforceable, the Court of Appeals in Horsey did not, as a result, || The Marital Setlement Agreement includes a standard severability provision providing in relevant past, "Should || ny provision ofthis Agreement be found held or deemed to be unenforceable ... the parties intend thatthe {emaining provisions ofthis Agreement shall nevertheless continue in full foree and be binding upon the partes..." {A partially dissenting opinion was noted by Judge McAuliffe and Chasanow disagreed with the Appellete Courts findings on the lack of enforceability ofthe reduction in alimony language. Judge McAuliffe opines that the partes’ | | Separation Agreement was sufficiently definite to require @ reduction in Mr. Horsey's alimony obligation, provided | that certain financial circumstances were met. Horsey at 422-423. || contended was warranted pursuant to the contract. Id at 420-421. } terminate Mr. Horsey’s underlying alimony obligation. Rather, the result was that Mr. Horsey || was left with a continuing obligation to pay alimony without any right to claim the reduction he 17. For the reasons set forth above and in Plainif's Memorandum in Opposition to | Motion for Summary Judgment and Affidavit of Judith C. Chamberlain, incorporated by reference as if fully restated herein, the Defendant has failed to establish a basis for summary |]iudgment. WHEREFORE, the Plaintiff prays this Honorable Court to: & Deny Defendant's Motion for Summary Judgment. b. Award Plaintiff attorney's fees and Court costs for having to pursue this matter 6 Forsuch other and further relief as the nature ofthis cause I hereby certify that on this / HILLMAN, BROWN & DARROW, P.A. 21 Duké of Gloucester Street Annapolis, Maryland 21401-2500 410-263-3131, 410-269-5555 Attomey for Plaintiff CERTIFICATE OF SERVICE to Supplement to Statement of Grounds and Authorities in Support of Motion for Si Judgment was mailed, first class, Street, 4th Floor, ‘Annapolis, Maryland 21401. Postage prepaid, to Keyji M. Schaeffer, Esquire, 125 West ia day of January, 2014, a copy of the foregoing Reply APX.DFORMCEA-LASER AEPORTERS PAPER EMFG. CO. sOOMEES313 IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, MARYLAND JUDITH CHAMBERLAIN, Plaintiff, vs. Case Number: 02-C-09-139690 DA STEPHEN CHAMBERLAIN, Defendant. OFFICIAL TRANSCRIPT OF PROCEEDINGS (Motion Hearing) Anne Arundel, Maryland Thursday, January 9, 2014 BEFORE: HONORABLE MICHAEL J. WACHS APPEARANCES: For the Plaintiff: MARIETTA B. WARREN, ESQUIRE For the Defendant: DONNA McCABE SCHAEFFER, ESQUIRE Electronic Proceedings Transcribed by: Dawn Archambo HUNT REPORTING COMPANY Court Reporting and Litigation Support serving Maryland, Washington, and Virginia 410-766-HUNT (4868) 1-800-950-DEPO (3376) APX, E10 12 12 13 14 15 16 ce] 18 19 20 21 22 23 24 25 14 financial aid package will be until he's able to actually apply to the school, that’s the way it works. You send in the application, they come back to you they tell you whether you qualify for certain scholarships or aid or things like that. THE COURT: Why not just apply? MS. WARREN: I’m sorry? THE COURT: Why not just apply -- MS. WARREN: Because pursuant to the terms -- THE COURT: -- at this point. MS. WARREN: -- of the agreement it says that the parties must agree prior to application and prior to enrollment. The agreement is very specific on that point. Now I think there are a lot of problems with the agreement, but that’s what the second sentence of this two-pronged obligation for the Defendant says. THE COURT: The third sentence makes no sense at all and I don’t -- MS. WARREN: Your Honor -- THE COURT: I don’t know -~ I showldn’t say that. I don’t know if any of you were involved in drafting it, but -- and so I apologize. MS. WARREN: JI personally was not and I don’t think Mr. Brown was involved THE COURT: It says “The selection of which HUNT REPORTING COMPANY Court Reporting and Litigation Support. Serving Maryland, Washington, and Virginia 410-766-HUNT (4868) T=BUU=SS0=DERt APX. FFORM CSA-LASER AEPONTERS PAPER FG CO. a0 ET 10 ul 12 13 14 15 16 1 18 1g 20 21 22 23 24 15 college or university each child shall attend shall be made by husband, wife and child prior to application.” That makes no sense. I mean you don’t select a school to attend prior to application. MS. WARREN: I agree. THE COURT: You select which school to attend, you apply and then you get your financial package and then you make your determination. I mean it just -- MS. WARREN: And Your Honor, one of the issues that we have and one of the reasons why this case came to the Court in the posture that it’s in is that John isn’t even able to determine where he'll be accepted. Now I can say his acceptance at Auburn is fairly likely. He believes that he will be accepted at Virginia Tech but that’s not clear, and it could be that he doesn’t get be -~ THE COURT: Has he applied? MS. WARREN: -~ that he doesn’t get in. THE COURT: Has he applied? MS. WARREN: Your Honor, I don’t think that that’s before this Court on that issue. I can’t -~ I can’t offer any testimony on that. THE COURT: So the relief -- one of requests for relief is that he be authorized to apply to schools. MS. WARREN: Because Your Honor, the risk that he runs is that if he applies and if Mr. Chamberlain maintains HUNT REPORTING COMPANY Court Reporting and Litigation Support. Serving Maryland, Washington, and Virginia 410-766-HUNT (4868) T=B00=S50-DEF 5 APX.GFORM CSA-LASER AEPORFERS RAPER AS. CO. aOOAEB6913, 15 16 1 18 19 20 21 22 23 24 25 16 that _he does not agree to the school that John chose, then he would not have any obligation to contribute to the college expenses THE COURT: TI got it. MS. WARREN: -- as provided in the agreement. THE COURT: All right. MS. WARREN: So what we were trying to do when the complaint was initially filed now months ago, was just determine whether or not John would even qualify for the financial aid for the scholarships that would alleviate some of Mr. Chamberlain’s financial obligation. Now, the reason why there wasn’t an immediate hearing is because there was a motion for summary judgment filed and we’ve been spinning our wheels with this up until this point. However, as the Court pointed out, there are either depending on how you look at it, there are two primarily important sentences in this agreement that we’re arguing about. The first one in our opinion is the most important and it provides in relevant part “That husband shall pay the cost of tuition, room and board, et cetera, incident to providing each child with an undergraduate college education for four consecutive years of college.” There is no conditional language in that sentence. There is no provided that conditional on. All of those type HUNT REPORTING COMPANY Court Reporting and Litigation Support Serving Maryland, Washington, and Virginia 410-766-HUNT (4868) T=B00=35U=DEPU T APX.Hua om ce. IN THE CIRCUIT COURT OF MARYLAND FOR ANNE ARUNDEL COUNTY JUDITH C. CHAMBERLAIN o Plaintiff I 7 * STEPHEN D. CHAMBERLAIN Defendant . CASE NO. 02-C-09-139690 SEREEETREEETEEESSESNOGEOEaNegeNONENONEREERONENEEEEREEESERERNEASLEEEEEESEHESE NSE AND O} INTO MOTION TO ‘REVISE DENIAL OF SUMMARY JUDGMENT MOTION Comes now the Plaintiff, Judith C. Chamberlain, by and through her attorney, Marietta B. Warren, and files this Response and Opposition to Motion to Revise Denial of Summary Judgment Motion and in support thereof states as follows: 1, For the reasons set forth below, the Defendant has failed to state a basis for revision of this Court's denial of his Motion for Summary Judgment and has further misrepresented the statements of Plaintiff's counsel in an attempt to distract the Court from the relevant issues at hand. 2. The sole issue before the Court on January 9, 2014, was whether or not the Defendant had established an absence of dispute as to any material facts and that he was entitled {to judgment as a matter of law in regard to the Plaintiff's Complaint to Enforce Marital Settlement Agreement and Consent Order of August 31, 2011, and for Declaratory Judgment. 3. Ultimately, the Court concluded that the Defendant had failed to establish that he ‘was entitled to summary judgment as a matter of law. The Court noted that the language of the parties’ Marital Settlement Agreement, from which this action arose, is not clear and that sufficient questions remained to be determined regarding the Defendant's obligations to contribute toward his child's college expenses. 4, This was not an evidentiary hearing and was not a forum for factual issues not raised by the Defendant or the Plaintiff in their underlying Summary Judgment filings, including the parties' Affidavits. MW jms 163064/2013448/013014 APX.I5. The issue of whether or not the child had applied to and been accepted to Aubum. ‘University has absolutely no bearing on the child's ability to apply and accept admission at the | school of his choice, which was not Aubum University, as was addressed at length, but, rather, Virginia Tech. 6. There was absolutely no equivocation regarding the fact that the child advised the | Defendant that he was considering both Auburn University and Virginia Tech but that Virginia ‘Tech was his preference. 7. Moreover, Defendant advised the child in an email that was incorporated in Plaintiff's Affidavit, “Knowing that Auburn has offered you a scholarship, and, it being an in- || state university, feel free to get that application in while you work on providing me information concerning the cost to attend the other schools you are considering.” (See Exhibit 1 to Affidavit of Judith C. Chamberlin, emphasis added). 8. Given the fact that this was a motions hearing, the Plaintiff's counsel was not in a position to, in essence, testify on behalf of her client regarding facts not before the Court and not addressed in the Affidavit and Counter-Affidavit filed by the Defendant and the Plaintiff. Plaintiff's counsel explicitly stated that, “Acceptance at Auburn [University] is fairly likely. [The child] believes he will be accepted at Virginia Tech, but -, at which point the following loccurred: Judge Wachs - “Has he applied?" ‘Ms. Warren - "I do not think that is before the Court. I certainly cannot offer any testimony on that.” Judge Wachs - "One of the requests for relief is that he be authorized to apply to schools.” | ‘Ms. Warren - "Because, your Honor, if he applies and if Mr. Chamberlain maintains that he does not agree to the school that John chose, then he would not have any obligation to contribute to the college expenses as provided in the Agreement." ' The Defendant fails to offer any justification as to why he did not contact Auburn, the Plaintiff or the child regarding the status ofthe child’s applications prior to the January 9, 2014 hearing.‘Ms. Warren - "Our position is [the Defendant] has an obligation to pay regardless of an Agreement. However, if you have an altemative interpretation like the Defendant's, then you have the situation that we have right now, the child is in limbo and there is nothing being paid.” 9. The Plaintiff's counsel did not argue that, “John could nor apply for any college Until John, the Plaintiff and the Defendant had agreed on the selection of the school”, but, rather, ‘that pursuant to the terms of the Marital Settlement Agreement, “It says the parties must agree prior to application and prior to enrollment” and "assuming he is admitted somewhere... and I think that there is an issue now in regard to his ability to apply if he seeks to enforce the contract regarding the Defendant's obligation to contribute to the expenses." (Emphasis added.) "There was never an agreement that the child was going to attend Auburn. [John] sent an e-mail stating that Auburn was a consideration ... he clearly noted that Virginia Tech was his primary choice." 10. The fact that the Defendant now attempts to raise the issue of the child's application to Aubum University does not change anything regarding the child's ability to attend Virginia Tech, nor does it resolve the Defendant's obligation to contribute to the college expenses associated with Virginia Tech or any other school other than Aubum University. Contrary to the implications of the Defendant, the minor child has not accepted admission to [Auburn University and remains in exactly the same position the was in previously regarding {the Defendant's obligation to contribute to the child’s college expenses. Both parties were well aware, and the Court was advised at the January 9, 2014 hearing, that admission to Auburn was likely. 11, The Defendant claims in his Statement of Grounds and Authorities in Support of Motion for Summary Judgment that the minor child has the ability to apply wherever he wants, “the first thing the Court must recognize is that John can apply to any college he chooses. ”, yet now, takes the opposite position claiming that there must have been an agreement "prior to | application” It was precisely this ambiguity that the Plaintiff secks the Court to resolve in regard to the Defendant's obligation to contribute to the expenses of the college where the child ultimately accepts admission, 12. The insinuations of the Defendant's counsel that the Plaintif’s counsel misled the Court or was less than candid are made in bad faith and wholly without merit. Plaintiff's counsel has reviewed the entire recording of the January 9, 2014, proceeding and will Tequest and APX. K[provide the Court with a typed transcript if it finds one necessary. Plaintiff's counsel explicitly advised the Court that the issue of whether or not the child had applied to any school was not before the Court on the summary judgment issue (it was never raised by the Defendant until the filing of this request to revise), was not something Plaintiff's counsel could comment on as this ‘was not an evidentiary hearing and had no relevance to the contract interpretation issue at hand, ‘namely, whether the child was free to apply “to any college he chooses”, as the Defendant has claimed, and the Defendant's obligation to contribute to school expenses as a result. 13, The fact that the minor child applied to Auburn University and did not accept admission (see Affidavit of Judith Chamberlain attached hereto and incorporated herein) does not resolve the issue of Defendant's obligation to contribute to college expenses for schools that require out-of-state tuition, especially since it is not disputed that the child's first choice is Virginia Tech, nor does it resolve the ambiguities in the Marital Settlement Agreement regarding | the Defendant's obligation to contribute should the child choose to attend a school other than Auburn University. 14, The child should not be penalized for making a prudent decision in applying to a school where he was likely to gain acceptance, in addition to any other schools that he was considering and may prefer to attend, during the pendency of this proceeding. WHEREFORE, the Plaintiff respectfully requests this Honorable Court to: a. Deny the Defendant's Motion to Revise Denial of Summary Judgment Motion. b, Award the Plaintiff attorney's fees and Court costs incurred in pursuing this matter. For such other and further relief'as the nature of this cause may require. Marietta‘ B. Warren /(mbw@hbdlaw.com) HILLMAN, BROWN & DARROW, P.AY 221 Dukelof Gloucester Street ‘Annapolis, Maryland 21401-2500 410-263-3131, (fax) 410-269-7912 Attomey for Plaintiff APX.Lof his or: her own selection in the negotiation and exec and Wife:acknowledge that this. ment is a | "_ is:not-the result of any fraud, duress, or undue i 31. USE OF GENDER REFERENCES. "gender, where appropriate, and plural shall © appropeiste.. = 32, INTEGRATION AND FUTURE Mop ‘This Agreement contains the cntire understanding between the parties. There-are ‘presentations, Warranties, covenants Whenever the masculine gender is used herein, it shall also mean the feminine ‘singular, The parties are presently residents of and domiciled in the State Of Maryland and this Agreement shall be constmed in accordance with laws ofMaryland. S 2 ly binding upon the parties, their respective MISCELLANEOUS ae _ A Ne provision ofthis Agreement shall be interpreted for or against any party Sas APX. MSTEPHEN D. CHAMBERLAIN. Appellant * Inthe v. * COURT OF SPECIAL APPEALS JUDITH C. CHAMBERLAIN * No. 719 Appellee * September Term, 2014 * se ee kk AEEIDAVIT OF STEPHEN D, CHAMBERLAIN Stephen D. Chamberlain does hereby swear and affirm under the penalties of perjury that the following facts and allegations are made on his personal knowledge: 1. That he is over eighteen (18) years of age and is competent to testify to the matters stated herein. 2. That all quotes attributed to his attomey contained in his Appellant's Brief, Reply Brief, and pleadings filed with the Circuit Court are accurate and true. 3. That his contentions regarding the Circuit Court’s knowledge he was under duress at the time the oral agreement was placed on the record on April 18, 2014, and that he did not give his consent to this agreement, are corroborated by the following dialogue which took place before the Honorable Judge Paul F. Harris during a Contempt Hearing on January 16, 2015: Mr. Chamberlain: “Knowing three weeks in advance that I did not give my consent, Your Honor decides to sign a Consent Order.” Judge Harris: “I didn’t know you didn’t give your consent, sir. It was submitted as a Consent Order. How would I know that?” APX.NMr. Chamberlain: “Because you denied my Motion for Mistrial on the same day you signed that order and the Motion for Mistrial clearly lays out this entire thing. May I ask Your Honor if he read the Motion for Declaration of .. Judge Harris: “Ofcourse, I read everything that comes across my desk.” Mr. Chamberlain: “But Your Honor just said that he wasn’t aware of this.” Judge Harris: “Wasn't aware of what, sir?” Mr. Chamberlain: “You weren’t aware of the 12 or 15 pages of misconduct, errors and duress that I was under on April 18th.” Judge Harris: “Sir, you haven't... . take your time. I don’t want you to miss anything.” 4. The facts can only lead to one of two conclusions. Either the Motion for Declaration of Mistrial was not read, and the trial judge was unaware of the evidence showing duress and judicial error from which the oral agreement on April 18, 2014 was bor, or, the duress and lack of assent was known to the trial judge before he signed the June 5, 2014 Order. 3. The Marital Settlement Agreement which was incorporated into a Judgment for Divorce by the Circuit Court which clearly states that “No modification or waiver of any of the terms of this Agreement by the parties shall be valid unless made in writing, and signed by the parties.” 6. AConsent Order unilaterally drafted by one party, and unilaterally signed by only the trial judge, in the clear presence of a lack of assent by one party and substantiated claims of duress prior to that judge’s signature, cannot be a valid and enforceable Order. APX.OI remain absolutely steadfast in my assertions that I was under duress on Vs April 18, 2014 and was coerced into making the oral agreement on the record on that day. 1 do solemnly swear and affirm under penalties of perjury that the matters and facts set forth in this Affidavit are true to the best of my knowledge, information and belief. Respectfillly, ee Stephen D. Chamberlain Pro Se Litigant APX. P