Downes v. Downes

• Decision Date: 15 August 2005
• Docket Number: No. 112,112
• Parties: Shirley L. DOWNES v. Gregory DOWNES.
• Court: Maryland Court of Appeals

880 A.2d 343

388 Md. 561

Shirley L. DOWNES v. Gregory DOWNES.

No. 112, September Term, 2004.

Court of Appeals of Maryland.

August 15, 2005.

Andrea Leahy-Fucheck (Richard J. Magid, Christopher B. Lord, Whiteford, Taylor & Preston LLP, Baltimore, on brief), for petitioner.

Charles W. Collett, Easton, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE¹, JJ.

WILNER, J.

Maryland Code, § 3-203 of the Estates and Trusts Article (ET), permits the surviving spouse of a decedent to take a certain share of the decedent's net Estate — one-half or one-third, depending on whether there is surviving issue — in lieu of property left to the spouse by the decedent's Will. ET § 3-206 and Maryland Rule 6-411 set a time deadline on the making of that election, however. The deadline relevant to this case was seven months after the date of the first appointment of a personal representative under the Will. It has since been changed to the later of nine months after the date of the decedent's death or six months after the first appointment of a personal representative under a Will.

Both the statute and the Rule permit the orphans' court to grant extensions of that deadline. ET § 3-206(a)(2) provides that the court "may extend the time for election, before its expiration, for a period not to exceed three months at a time, upon notice given to the personal representative and for good cause shown."² (Emphasis added). Rule 6-411(c) provides that, "[w]ithin the period for making an election," the surviving spouse may file a petition for an extension of time, and that "[f]or good cause shown, the court may grant extensions not to exceed three months at a time, provided each extension is granted before the expiration of the period originally prescribed or extended by a previous order." (Emphasis added).

The question before us is whether an orphans' court, or on appeal from that court, a circuit court, has any discretion to grant an extension when the request therefor is not made within the period originally prescribed or extended by a previous order. The Orphans' Court for Talbot County, the Circuit Court for that county, and the Court of Special Appeals all held that there was no such discretion. We agree with that conclusion and shall therefore affirm.

BACKGROUND

Petitioner, Shirley Downes, is the surviving spouse of Eldridge Downes IV, who died, testate, on October 23, 1997.³ In his Will, Eldridge left all of his tangible personal property to Shirley and named her as his personal representative. He also created two trusts — a marital trust for Shirley's benefit in an amount equal to the maximum marital deduction available for Federal estate tax purposes and a residuary trust for the benefit of his parents and his son, Gregory. On November 3, 1997, the Orphans' Court admitted the Will to probate and, pursuant to the Will, appointed Shirley as personal representative. In February, 1998, Shirley filed an Inventory and Information Report that showed the value of the Estate to be $1,729,517.

On June 2, 1998 — one day prior to the then seven-month deadline for her to decide whether to renounce the Will and take her statutory share of the Estate — Shirley, acting pro se, filed a petition for an extension of that time. She explained that the Inventory which, as personal representative, she had filed in February did not include the value of certain assets owned by Eldridge, that she was in the process of determining the value of those assets, and that the determination of that value would affect her personal decision whether to take her statutory share. She asked for a three-month extension which, on June 9, 1998, the court granted.⁴ Later that month, she filed an amended Inventory showing the value of the Estate to be $2,052,228. In July, she asked for an extension of time to file the required Administration Account, citing her inability to appraise closely held entities in the Estate. On August 27, 1998, Shirley, again acting pro se, filed a petition for a second extension of time to elect her statutory share. As before, she averred that the Inventories did not include all of the Estate's assets and that she was having difficulty valuing certain assets. On September 1, 1998, the court granted another three-month extension, to December 1, 1998.

On November 30, 1998 — one day before the expiration of the current extension — Shirley, this time through counsel, filed a petition for a third extension. She stated that her late husband had an interest in three businesses — Tidewater Coffee, Inc., Raley Downes Services, Inc., and Ral-Do Industries, Inc. — that both the assets and liabilities relating to those businesses might be substantial, and that the value of the interests would have a significant impact on her decision whether to renounce the Will and elect her statutory share. She claimed that, due to a lack of cooperation on the part of those businesses, two of which were in New Jersey, she had been unable to determine the value of the assets or the extent of the liabilities. On December 1, the court granted another three-month extension, until March 1, 1999. On February 24, 1999, again through counsel, Shirley requested a fourth extension, for the same reason. On March 2, the court granted the extension, until June 2, 1999.

During the period of that fourth extension, as to which no challenge is made, Shirley filed an amended Inventory showing Estate assets of $1,963,478, to reflect a decline in the value of certain corporate stock. She also filed her First Administration Account, charging herself with a gross Estate of $3,461,969. On March 22, she filed a supplemental Inventory that added $1,498,490 to the value of the Estate, bringing the total to $3,461,969 — the value reported in the First Administration Account. That supplemental Inventory included a value of $374,400 for the decedent's interest in Ral-Do Industries, Inc. and a value of $325,000 for his interest in Raley Downes Services, Inc. The Inventory noted that the third business — Tidewater Coffee, Inc. — was insolvent and was disputing the extent of the decedent's interest.

For whatever reason, Shirley allowed the fourth extension to expire. On June 24, 1999 — twenty-two days after the expiration of the extension period — she filed a petition for a fifth extension. Notwithstanding the values assigned in the last supplemental Inventory, she again asserted that she had been unable to determine the value of her husband's interest in the three companies. She added, as well, an assertion that, since the filing of the last petition for extension, the Estate "has been involved in litigation before the Circuit Court for Talbot County involving obligations of the decedent," but she did not further identify or explain the nature of that litigation. On July 6, 1999, the court, citing ET § 3-206(a), denied the petition. Shirley moved for reconsideration of that denial, claiming that she had substantially complied with the deadline requirement. In October, 1999, the court, citing Simpson v. Moore, 323 Md. 215, 228, 592 A.2d 1090, 1096 (1991), denied the motion, holding that the problem was not one of substantial compliance but of non-compliance with the statutory requirement.

Shirley did not seek any immediate review of the Orphans' Court's denial of her petition for fifth extension, but rather completed the administration of the Estate. On February 13, 2001, the court approved the Fifth and Final Administration Account showing a gross Estate of $3,228,701 and a net Estate after payment of taxes and expenses of $945,291. On March 15, 2001, she filed an appeal to the Circuit Court from the denial of her petition for fifth extension and her motion to reconsider that denial. Gregory, as sole surviving beneficiary of the residuary trust, moved to intervene in the Circuit Court action, noting that, if Shirley were permitted to renounce the Will, the value of the residuary trust would be decreased by about one-third. He also moved to dismiss the appeal as untimely, arguing that the denial of Shirley's request for a fifth extension constituted a final judgment and that an appeal should have been taken within 30 days after that order.

On November 15, 2001, the Circuit Court granted Gregory's motions to intervene in and to dismiss the appeal. The court concluded that the order of July 6, 1999 that denied Shirley's petition for fifth extension was a final, appealable judgment under Maryland Code, § 12-502 of the Cts. & Jud. Proc. Article (CJP) and that her appeal from that order in March, 2001, was untimely. CJP § 12-502(a)(1) permits a party in the orphans' court to appeal from a final judgment of that court to the circuit court, in lieu of taking a direct appeal to the Court of Special Appeals. Section 12-502(b) requires that the order for appeal be filed with the register of wills within 30 days after the date of the final judgment from which the appeal is taken.

Shirley then appealed to the Court of Special Appeals which, in an unreported Opinion filed November 14, 2002, reversed the Circuit Court ruling. The intermediate appellate court concluded that the effect of the July, 1999 order was simply "to preclude [Shirley] from electing an alternative method of calculation" and that nothing in that order "suggests a final adjudication of [Shirley's] claim, or even a specific valuation as to [Shirley's] award." Because that order did not finally adjudicate her claim in regard to the Estate, it was not immediately appealable. The final, appealable judgment, the court held, was the order approving the Fifth and Final Administration Account. The case was thus remanded to the Circuit Court for further proceedings on Shirley's appeal. On remand, Shirley focused not on whether the Orphans' Court had the authority or discretion to excuse the late filing of the petition for fifth extension or to extend the deadline for the filing of that...