Cook v. Cook

• Decision Date: 21 May 1990
• Citation: Cook v. Cook, 574 A.2d 1353 (Me. 1990)
• Parties: Phyllis P. COOK v. Felicia W. COOK and Frederick D. Cook.
• Court: Maine Supreme Court

Page 1353

574 A.2d 1353

Phyllis P. COOK v. Felicia W. COOK and Frederick D. Cook.

Supreme Judicial Court of Maine.

Submitted on Briefs May 8, 1990.

Decided May 21, 1990.

Joel F. Bowie, Howard & Bowie, Damariscotta, for plaintiff.

Peter C. Fessenden, Ranger, Fessenden & Copeland, P.A., Brunswick, for defendants.

Before McKUSICK, C.J., and ROBERTS, GLASSMAN, WATHEN and CLIFFORD, JJ.

McKUSICK, Chief Justice.

In this case we review a summary judgment entered by the Superior Court (Lincoln County, Alexander, J.) in an action for the foreclosure of a real estate mortgage. Although the summary judgment does not dispose of a counterclaim in the foreclosure action, it is immediately appealable under the death knell exception to the final judgment rule. Because genuine issues of material fact remain regarding the validity of the notes and mortgages being foreclosed and of the foreclosure proceeding itself, we vacate the entry of summary judgment.

During the pendency of a divorce proceeding between Frederick D. Cook and Felicia W. Cook, the husband unbeknownst to the wife issued two notes and mortgages on the marital home in Southport to his mother, Phyllis B. Cook, for about $17,000. Title to the home stands in the husband's sole name. Phyllis subsequently filed the present foreclosure action against Frederick naming Felicia as co-defendant on the ground that she "might have a marital interest in the premises." Frederick filed no answer and allowed himself to be defaulted on the foreclosure complaint, even though the record indicates that a substantial equity exists in the property. In her answer, Felicia pleaded the affirmative defense that the foreclosure action was part of a fraudulent scheme perpetrated by Frederick and his mother to deprive Felicia of her marital interest in the home, and by counterclaim pleaded, inter alia, that the execution and delivery of the notes and mortgages were fraudulent under the Uniform Fraudulent Transfer Act, 14 M.R.S.A. §§ 3571-3582 (Supp.1989). On Phyllis's motion, opposed by Felicia alone, the court on November 3, 1989, entered a summary judgment ordering foreclosure. By the court's order, Phyllis can sell the marital home at the end of a 90-day redemption period if defendants fail to pay the sums due on the notes given by Frederick. After the court denied Felicia's motion for reconsideration, she immediately appealed to this court. ¹

The summary judgment of foreclosure is not a final judgment because Felicia's counterclaim remains unadjudicated. Such nonfinal judgments are normally not immediately appealable, see Bacon v. Penney, 418 A.2d 1136, 1139 (Me.1980); Field, McKusick & Wroth, Maine Civil Practice § 56.8, at 358-59 (2nd ed. Supp.1981). The death knell exception to the final judgment rule, however, permits an appeal "from an interlocutory order where 'substantial rights of a party will be irreparably lost if review is delayed until final judgment.' " Myerowitz v. Howard, 507 A.2d 578, 580 (Me.1986) (citation omitted). We have exactly that situation here. On June 2, 1989, five months before the Superior Court entered its summary judgment, the District Court (Wiscasset, Studstrup, J.) in the Cook divorce action had entered an order dividing Frederick and Felicia's marital property. With regard to the family home, the court declared that:

The family residence ... in Southport ... is found to be mixed marital and non-marital property. The Court finds the value of this property to be $190,000, with an outstanding mortgage indebtedness of $128,500. Seventeen Thousand Dollars of the mortgage indebtedness represents personal loans to [Frederick] from his mother for which he should be solely responsible and which should not detract from the marital estate in the property. Deleting this $17,000, the net equity in the property is $78,500.... After considering all the factors set forth in 19 M.R.S.A. § 722-A, it is further ORDERED that [Frederick] shall pay to [Felicia] the sum of $35,000 for her share in the marital estate in this property. [Fred...