Estep v. Estep

• Decision Date: 13 July 1979
• Docket Number: No. 69,69
• Parties: Donald Lee ESTEP v. Brenda Jane ESTEP (Matt).
• Court: Maryland Court of Appeals

Page 416

285 Md. 416

404 A.2d 1040

Donald Lee ESTEP v. Brenda Jane ESTEP (Matt).

No. 69.

Court of Appeals of Maryland.

July 13, 1979.

Robert B. Ostrom, College Park, for appellant.

Allen J. Kruger, College Park, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

DIGGES, Judge.

Following the Court of Special Appeals' dismissal of petitioner Donald L. Estep's appeal to that court of a determination, adverse to him, entered by a court in banc convened in the Seventh Judicial Circuit of Maryland, we granted his petition for a writ of certiorari to consider three questions: 1) did the Court of Special Appeals err in dismissing Mr. Estep's appeal under Maryland Rule 1035 b 1 as "not allowed by law"; 2) was the court in banc correct in reversing the finding of the Circuit Court for Prince George's County that it had no jurisdiction to consider the request of petitioner's ex-wife, respondent Brenda J. Matt (formerly Estep), for modification of a child custody order issued by that court several years earlier; and 3) was the court in banc likewise correct in reversing the circuit court's decision that it should decline to hear the matter because the circuit court was an inconvenient forum to now adjudicate the custody modification request. After studying the record in this case, however, we conclude that although the Court of Special Appeals was incorrect in directing the dismissal of the petitioner's appeal to that court, we likewise do not reach the other two questions posed because the court in banc determined those issues prior to the entry of a final, appealable order by the chancellor. As a consequence, we will reverse the Court of Special Appeals' dismissal of petitioner's appeal and remand this case to that court with instructions that it vacate the judgment of the court in banc and remand the case to the Circuit Court for Prince George's County for further proceedings consistent with this opinion.

By order dated December 9, 1971, the Circuit Court for Prince George's County awarded custody of the four children of the marriage of Donald and Brenda Estep to their father on the condition that the children reside with their paternal grandparents in Woodstock, Virginia, which is a little less than 100 miles from Prince George's County. ¹ Subsequently, in an independent action, petitioner and respondent were divorced A vinculo matrimonii by a decree of the Prince George's County Circuit Court dated July 3, 1973. Although custody of the four children was not specifically raised before the chancellor as a contested issue in the divorce action, the decree nonetheless reaffirmed the custody arrangement established by the 1971 order.

Since February 1971 the three youngest children have lived and gone to school in Woodstock and have returned to this State only infrequently to visit their mother, who continues to reside in this State. Approximately one and one-half years after his parents were divorced, and with the consent of all the parties but without modification of the custody order, the eldest son moved from his grandparents' home to that of his mother, where he continues to reside at the present time. The father, while both employed and living in Maryland during the work week, claims Woodstock as his residence since he usually returns there to stay over the weekends.

Following her remarriage, respondent on July 15, 1977, submitted to the circuit court a petition, which was filed in the original custody case, seeking modification of the order of December 9, 1971, so as to grant her custody of each of the four children. The petitioner resisted his former wife's request by asserting that under the Uniform Child Custody Jurisdiction Act (UCCJA) as adopted in Maryland, Md. Code (1957, 1973 Repl.Vol., 1978 Cum.Supp.), Art. 16, §§ 184-207, the chancellor was without jurisdiction to grant the modification sought and, in the alternative, that the Circuit Court for Prince George's County was an inconvenient forum to litigate the mother's demand for a change in the custody of the children. In addition, Mr. Estep filed a cross-petition for modification of the December 9 order, demanding contribution from his ex-wife for the support of the three children living with their grandparents. By an order filed January 24, 1978, Prince George's County Circuit Court Judge Robert J. Woods dismissed Mrs. Estep's motion to modify the December 9 decree as it related to the three youngest children, declaring that under the UCCJA the circuit court was without jurisdiction and was also an inconvenient forum for the prosecution of any action to change the custody of the three children.

On the same day the chancellor's order was filed, acting pursuant to section 22 of Article IV of the Maryland Constitution and Maryland Rule 510, respondent sought an in banc review of Judge Wood's decision by filing a reservation of points concerning that determination. ² Although the father's cross-petition for support contributions and the mother's motion for modification with regard to custody of the eldest son remained pending before the chancellor, a court in banc, with three Seventh Circuit judges presiding, was convened, heard argument by the parties on the correctness of Judge Wood's ruling, and on April 26, 1978, filed its opinion and order by which it reversed the circuit court's determination. In making its ruling, the court in banc stated that the chancellor's "continuing jurisdiction" over the equity decree that gave petitioner custody of the four children had not been abrogated by the enactment of the UCCJA and that the circuit court was not an inconvenient forum. Petitioner, as the nonmoving party before the court in banc, noted a timely appeal of this decision to the Court of Special Appeals, which dismissed it, and we granted certiorari.

In addressing the initial issue of the propriety of the Court of Special Appeals' dismissal of petitioner's request for review, we find that we are at somewhat of a loss because that court failed to further explain the reason for its decision, other than to say the appeal was "not allowed by law." ³ The requirements regulating further appeal from the decision of a court in banc are set out in section 22 of Article IV:

(T)he decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal . . . in those cases, civil or criminal, in which appeal, or writ of error to the Court of Appeals may be allowed by Law. (Md.Const., Art. IV, § 22.)

See Md. Code (1974), § 12-302(d) of the Courts Article. Being the nonmoving party to the court in banc, petitioner, as he was authorized to do, seasonably noted an appeal to the Court of Special Appeals, thereby properly perfecting his request for review. ⁴ If, as petitioner has suggested, the Court of Special Appeals dismissed the appeal to it as interlocutory because the court in banc, after reversing the circuit court's decision, remanded the case for further action on the respondent's petition for modification, such a ruling by the Court of Special Appeals would be in error. In holding that a nonmoving party's appeal from the decision of a court in banc to grant a new trial would be timely only if it were made immediately, rather than after the new trial was conducted, this Court in Buck v. Folkers, 269 Md. 185, 187-88, 304 A.2d 826, 828 (1973), clearly indicated that the court in banc acts only as an appellate tribunal so that its decisions are not those of a reconsidering trial court but are reviewable as final appellate judgments. ⁵ Thus, we find no grounds for the dismissal by the Court of Special Appeals of the petitioner's appeal and will reverse that action.

Having determined that this appeal is properly before us, we nonetheless find that we do not reach the substantive issues decided by the court in banc because those questions were answered by that court even though it was without jurisdiction to do so, in that it had before it "no matter . . . which (was) a final judgment so as to be the proper subject of an appeal." ⁶ Smith v. Taylor, --- Md. ---, ---, 400 A.2d 1130, 1133 (1979). In illustrating our reasons for this conclusion, we begin with the proposition that, as we have just indicated, the court in banc is a tribunal exercising appellate jurisdiction. It being established that the jurisdiction of the appellate courts of this State "is at this time delimited by statute," Peat & Co. v. Los Angeles Rams, 284 Md. 86, 90, 394 A.2d 801, 803 (1978); Accord, e. g., Smith v. Taylor, supra, --- Md. at ---, 400 A.2d at 1132; Jolley v. State, 282 Md. 353, 355, 384 A.2d 91, 93 (1978); Warren v. State, 281 Md. 179, 182, 377 A.2d 1169, 1171 (1977), we look to the pertinent enactment to determine the scope of the court in banc's basic authority to act. The applicable statute is section 12-301 of the Maryland Code's (1974) Courts Article which provides that an appeal shall be "from a final judgment." ⁷ As to whether a given order or other court action constitutes a final judgment, we have held that this is a determination that ultimately can be made only by this Court. Smith v. Taylor,supra, --- Md. at ---, 400 A.2d at 1133; Peat & Co. v. Los Angeles Rams,supra, 284 Md. at 91, 394 A.2d at 804; Warren v. State, supra, 281 Md. at 183, 377 A.2d at 1171.

In acting to define, at least in part, the term "final judgment," this Court has adopted Maryland Rule 605 a which provides:

a. When Entered As to Part or All.

Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and...