Brodak v. Brodak

• Decision Date: 21 July 1982
• Docket Number: No. 1,1
• Citation: 294 Md. 10,447 A.2d 847
• Parties: George Joseph BRODAK v. Rose Marie Elizabeth BRODAK.
• Court: Maryland Court of Appeals

Page 10

294 Md. 10

447 A.2d 847

George Joseph BRODAK v. Rose Marie Elizabeth BRODAK.

No. 1.

Court of Appeals of Maryland.

July 21, 1982.

Robert H. Reinhart, Cumberland (Walsh, Walsh & Reinhart, Cumberland, on the brief), for appellant.

Lawrence E. Finegan, Frederick (Alan L. Winik, Frederick, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

In this case neither the former husband, George Joseph Brodak (the husband), nor the former wife, Rose Marie Elizabeth Brodak (the wife), is happy with the chancellor's decision in their divorce action. Each appealed to the Court of Special Appeals. The husband is firmly of the view that the chancellor erred in making a division of marital property. The wife feels aggrieved because the chancellor reserved the question of alimony rather than awarding it in the decree dated August 25, 1981. Their dissatisfaction, which we find to be without a sound legal basis, produces the question which prompted us to grant certiorari in this case upon the parties' petition prior to a decision by the Court of Special Appeals.

Maryland Code (1974, 1980 Repl.Vol.) § 3-6A-05(a), Courts and Judicial Proceedings Article, provides that in granting an absolute divorce, "or at any time within 90 days thereafter, if in its decree granting the divorce ... the court has expressly reserved the power to do so, the court shall determine which property is marital property if the division of property is an issue." The divorce decree in this instance did reserve the power to determine the division of marital property. Unfortunately, the decree making the marital property designation was not filed until the ninety-first day after the divorce decree. Hence, the husband contends, relying upon Russell v. Russell, 50 Md.App. 185, 436 A.2d 524 (1981), that the Circuit Court for Garrett County was without jurisdiction to make the award. We disagree and shall affirm on all issues.

i The ninety-day issue

Prior to the General Assembly's passage of the act relative to marital property, Ch. 794 of the Acts of 1978, which is codified as Code (1974, 1980 Repl.Vol.) §§ 3-6A-01 to -07, Courts and Judicial Proceedings Article (the Act), Maryland courts granting a divorce a mensa et thoro or a vinculo matrimonii were empowered by Code (1957) Art. 16, § 29 "to hear and determine all questions which m[ight] arise between the parties to such proceeding in connection with the ownership of personal property (except chattels real) held, possessed or claimed by either or both of them, and ... ha[d] the power to make a division of such property between them, or order a sale thereof and a division of the proceeds of such sale, or make such other disposition thereof as the court m[ight] deem proper." No authority existed, however, to award to one spouse property solely owned by the other spouse. Bowis v. Bowis, 259 Md. 41, 45-46, 267 A.2d 84 (1970); Gebhard v. Gebhard, 253 Md. 125, 130, 252 A.2d 171 (1969); Brucker v. Benson, 209 Md. 247, 250, 121 A.2d 230 (1956); and Dougherty v. Dougherty, 187 Md. 21, 32, 48 A.2d 451 (1946).

The husband's argument runs as follows: Since "the courts of equity in Maryland had no jurisdiction [prior to the enactment of the Act] to adjust the property rights of spouses or to make a monetary award to a wife who had not contributed financially toward the purchase of property held by the husband" and since the provision in § 3-6A-05(a) is for a period of time "within 90 days" after the granting of an absolute divorce or annulment, "[i]t is clear that the court's jurisdiction to further entertain the matter after having expressly reserved the power to do so is lost if a determination is not made within the time prescribed." He then says, "The precise issue presented here was before the court in Russell v. Russell, 50 Md.App. 185 (1981)."

In Russell a decree dated August 26 reserved " 'the issue of monetary award of the marital property.' " A hearing was held on November 24. The decree was passed on December 29. It seems, according to the Court of Special Appeals, that the parties "agree[d] that the time in which the court would determine which property was marital property would be extended beyond 90 days after the divorce decree." 50 Md.App. at 186, 436 A.2d 524. The court said:

"[H]aving failed to designate the marital property within this time, the court lost jurisdiction and any determination thereafter concerning the appellee's pension rights were nugatory. The parties could not confer jurisdiction by consent where the jurisdiction did not exist under the appropriate law; this deficiency may be raised at any time. Stewart v. State, 287 Md. 524, 527, 413 A.2d 1337, 1339 (1980)." 50 Md.App. at 187, 436 A.2d 524. ¹

However, we were not requested to review that decision. We agree that the parties could not by their mutual assent extend the time within which the chancellor was to act, but we disagree with the concept that because of the delay "the court lost jurisdiction and [for that reason] any determination[s] thereafter concerning the appellee's pension rights were nugatory."

In Stewart v. State, 287 Md. 524, 413 A.2d 1337 (1980), we were faced with the issue of whether an indictment returned by a grand jury was void ab initio. Stewart was alleged to have been delinquent. Juvenile jurisdiction was waived, from which order Stewart appealed. The Court of Special Appeals affirmed the waiver order. Prior to the issuance of the mandate by the intermediate appellate court, the grand jury returned an indictment charging him with the crime that served as the basis of the delinquency petition. He argued that the indictment was void because it had been returned prior to issuance of the mandate in the appeal of the waiver determination. We affirmed the decision of the Court of Special Appeals holding that the indictment was not void. Judge Digges said for the Court in that case:

"In explaining the rationale for the mandate we issue in this case, it may be well to recall for the reader that ' "[j]uridically, jurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid [final judgment], and (ii) the propriety- f granting the relief sought. 1 Pomeroy,Equity Jurisprudence (5th ed. 1941), Secs. 129-31." ' First Federated Com. Tr. v. Comm'r, 272 Md. 329, 334, 322 A.2d 539, 543 (1974) (quoting Moore v. McAllister, 216 Md. 497, 507, 141 A.2d 176, 182 (1958)). Thus, it is only when a court lacked fundamental jurisdiction to render the judgment it did that there is an absence of authority in the court so as to render its judgment a nullity. First Federated Com. Tr. v. Comm'r, supra, 272 Md. at 334, 322 A.2d at 543. Accord, Pulley v. State, 287 Md. 406, 412 A.2d 1244, 1248-51 (1980); Parks v. State, 287 Md. 11, 17-19, 410 A.2d 597, 601-02 (1980); Block v. State, 286 Md. 266, 270-73, 407 A.2d 320, 322-24 (1979). On the other hand, 'the question of whether it was appropriate to grant the relief merges into the final [judgment] and cannot therefore be successfully assailed for that reason once enrolled.' First Federated Com. Tr. v. Comm'r, supra. The power possessed by a court to hear and determine disputes, including that which is inherent, is derived from applicable constitutional and statutory pronouncements. So if,

by that law which defines the authority of the court, a judicial body is given the power to render a judgment over the class of cases within which a particular one falls, then its action cannot be assailed for want of subject matter jurisdiction. The circuit courts of this State, such as the Circuit Court for [Cecil] County, are courts of original general jurisdiction, Maryland Const., Art. IV, §§ 1, 19, 20 and therefore, they may hear and decide all cases at law [ (which include criminal causes) ] and in equity [ (which include juvenile causes) ] other than those which fall within the class of controversies reserved by a particular law for the exclusive jurisdiction of some other forum. [First Federated Com. Tr. v. Comm'r, supra 272 Md. at 335, 322 A.2d at 543 (citations omitted).]

To this we add the widely acknowledged principles that parties cannot confer jurisdiction, in its fundamental sense, upon a court by consent, and that the lack of such jurisdiction may be raised at any time, including initially on appeal. But when a court of general jurisdiction has jurisdiction over the subject matter of the litigation and also the parties, it ordinarily has power to decide the issue in dispute between those parties." 287 Md. at 526-28, 413 A.2d 1337 (emphasis and bracketed material in original; footnote omitted).

Relying upon Pulley v. State, 287 Md. 406, 417-19, 412 A.2d 1244 (1980), we concluded in Stewart, 287 Md. at 529, 413 A.2d 1337, that "the circuit court ... retained jurisdiction over the subject matter and was not deprived by a stay order or otherwise by law from exercising that jurisdiction pending the appeal" and that the indictment was not a void document. There is nothing in the statute here to indicate an intent on the part of the General Assembly to strip the court of its jurisdiction relative to marital property after the lapse of ninety days from the date the decree was entered. The statute does not state that if a court, under the circumstances here, grants an absolute divorce it shall have jurisdiction only for a period of ninety days. Rather, it says that in granting a divorce "or at any time within 90 days thereafter [under certain circumstances] the court shall determine which property is marital property if the division of property is an issue."

In Parks v. State, 287 Md. 11, 410 A.2d 597 (1980), Judge Cole observed for the Court:

"A trial court has jurisdiction for purposes of double jeopardy when it has jurisdiction over the subject matter and the person of the defendant. A statute which seeks to limit the period in which a court should...