Breau v. Breau
| Decision Date | 25 August 1980 |
| Parties | Trudy F. BREAU v. Roger J. BREAU. |
| Court | Maine Supreme Court |
Turner & Whittier, Craig E. Turner, David Q. Whittier (orally), South Paris, for plaintiff.
Preti, Flaherty & Beliveau, Joel C. Martin (orally), Portland, Albert J. Beliveau and Thomas S. Carey, Rumford, for defendant.
Before McKUSICK, C. J., and WERNICK, NICHOLS and GLASSMAN, JJ.
This is an appeal by the plaintiff, Trudy Breau, from an order of the Superior Court, Oxford County, denying the plaintiff's appeal from an order of the District Court, District Eleven, Division of Northern Oxford, amending a divorce judgment. Because of procedural irregularities affecting the jurisdiction of the Superior Court to entertain the appeal and affecting the jurisdiction of this Court, we modify the order of the Superior Court and as so modified affirm that order.
On March 23, 1978, the District Court granted a divorce to Trudy Breau from Roger J. Breau. As part of the division of marital property, the court made the following order:
It is further ordered and decreed that the real estate owned by the parties, situated on Roxbury Road in the Town of Mexico, County of Oxford and State of Maine, and recorded in the Oxford County Registry of Deeds in Book 788, Page 227 is deemed to be marital property and set aside for the sole and exclusive use of DEFENDANT, ROGER J. BREAU, provided however, that Defendant hold Plaintiff harmless for any and all payments due on the above mentioned property situated in Mexico, Maine. (Emphasis added).
The defendant died intestate August 26, 1978. James Breau, administrator of the defendant's estate, and Thomas Carey, guardian of the defendant's minor child, on January 30, 1979, filed a motion pursuant to M.D.C.Civ.R. 60(b) seeking reformation of the language of the divorce judgment to reflect the alleged intention of the parties and the court that the defendant receive title to the real estate in question in fee simple. No action was taken upon this motion.
On March 21, 1979, the plaintiff filed a motion to enjoin prosecution of the motion for relief from divorce judgment and a motion for disqualification of the District Court judge. Both motions are endorsed on the bottom, "Motion denied.", but no entry on the docket has ever been made.
The District Court, acting on its own initiative and purporting to act pursuant to M.R.Civ.P. 60(a), 1 applicable in the District Court pursuant to M.D.C.Civ.R. 60, issued an amended divorce judgment "to conform with the Court's order of March 23, 1978" and ordered that all personal and real property including the real estate in question, be granted "exclusively and outright" to, rather than for "the sole and exclusive use of," the respective party to whom it had been awarded. The only entry in the District Court docket reflecting this action was under date of June 12, 1979, and read: "Amended Divorce Judgment signed by J.L. Batherson, Judge on 5-31-79." The plaintiff appealed to the Superior Court. The Superior Court entered an order that read: "Appeal denied remanded to District Court for entry of judgment." Thereafter, an appeal was taken to this Court.
We have recently reaffirmed our long-standing rule that the Superior Court should not entertain an appeal from the District Court unless there is a final judgment. See Casco Bank & Trust Co. v. Emery, Me., 416 A.2d 261, 263 (1980). M.D.C.Civ.R. 58 provides, inter alia : "The notation of a judgment on the docket constitutes the entry of the judgment, and the judgment is not effective before such entry." (Emphasis added). M.D.C.Civ.R. 79(a) provides, inter alia :
All papers filed with the clerk, all appearances, orders, and judgments shall be noted chronologically upon the docket and shall be marked with the docket number. These notations shall briefly show the nature of each paper filed or writ issued and the substances (sic) of each order or judgment of the court and of the returns showing execution of process. In the alternative the notation of an order or judgment may consist of an incorporation by reference of a designated order, judgment, opinion or other document filed with the clerk by the court, provided that the notation shows that it is made at the specific direction of the court. (Emphasis added).
Reading Rules 58 and 79(a) together demonstrates that the failure to enter the order amending the divorce judgment on the docket meant that such order was ineffective and was not therefore appealable.
It is apparent that the Justice of the Superior Court recognized that no judgment had been entered in the District Court since his order specifically directed that the matter be remanded to the District Court "for entry of judgment." Some confusion may...
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