Jenkins v. Jenkins

Citation112 Md.App. 390,685 A.2d 817
Decision Date01 September 1996
Docket NumberNo. 117,117
PartiesRandall Campbell JENKINS v. Nellie Madolyn JENKINS. ,
CourtCourt of Special Appeals of Maryland
Emile J. Henault, Jr., Glen Burnie, for Appellant

Kimberly D. Marshall (Renahan & Marshall, on the brief), Waldorf, for Appellee.

Argued before HARRELL and EYLER, JJ., and Paul E. ALPERT, Judge (retired), Specially Assigned.

HARRELL, Judge.

This appeal stems from an action brought in the Circuit Court for Anne Arundel County (Cawood, J.) seeking a declaratory judgment. The parties are Randall Campbell Jenkins (Mr. Jenkins or appellant) and Nellie Madeline Jenkins (Mrs. Jenkins or appellee). Mr. Jenkins sought to have the trial court determine the percentage of Mrs. Jenkins's entitlement to his federal pension pursuant to a now disputed stipulation and agreement reached by the parties in their divorce proceedings. The judge was persuaded that Mrs. Jenkins's position was correct. Mr. Jenkins, in his effort to appeal that judgment, has failed to note properly this appeal. We, therefore, dismiss 1 his appeal pursuant to Md. Rule 8-602(a). See The relevant portions of Md. Rule 8-602(a)(3) permit the Court, on its own initiative, to "dismiss an appeal [if] the notice of appeal was not filed with the lower court within the time prescribed by [Md.] Rule 8-202...." Md. Rule 8-202 dictates that, absent a post-judgment motion, "the notice of appeal shall be filed within 30 days after the entry of the judgment or order from which the appeal is taken." (Emphasis added). Md. Rule 8-202 clearly contemplates that the notice of appeal may be filed only after the entry of judgment.

also Biro v. Schombert, 285 Md. 290, 402 A.2d 71 (1979) (noting this Court's authority to dismiss nostra sponte when appellate jurisdiction is lacking).

ISSUES

As noted supra, the issues decided by this Court were not initiated by either party on appeal 2. Instead, we shall address only the following questions:

I. Did the filing of Mr. Jenkins's notice of appeal predate the entry of final judgment, i.e., was the appeal prematurely taken?

II. If Mr. Jenkins's notice of appeal was premature, is his appeal saved by the provisions of Md. Rule 8-602(d)?

III. If Mr. Jenkins's notice of appeal was premature, is his appeal saved by the provisions of Md. Rule 8-602(e)(1)(D)?

FACTS

After a 13 October 1995 trial on the merits, Judge Cawood left the bench without issuing an opinion, ruling, or judgment. The transcript of the judge's comments, at the conclusion of I've been going through this language [of the agreement] about eight times while some of this testimony has been going on, and I'm going to go through it a few more times to determine exactly what [the parties] meant because as I said its not changing anything. It's simply the [c]ourt determining what they meant.... So we'll take it under advisement and try to figure out what I think based on all of the evidence I've heard ... and then we'll have an opinion on that and declare what it is ... which formula to apply here, so that's what we'll do.

the parties' closing arguments, clearly indicates that neither a judgment nor an opinion was rendered in open court. The judge stated:

(Emphasis added).

On 24 October 1995, the trial judge issued a written opinion, copies of which were apparently sent to counsel. The final paragraph of his opinion stated that "[c]ounsel shall prepare an appropriate declaratory judgment and, if necessary, an order in the nature of a QDRO 3." The opinion was entered on the docket on 27 October 1995 with notice that "an appropriate declaratory judgment," prepared by counsel, would follow. On 8 November 1995, Mr. Jenkins filed his "Order for Appeal" that notified the clerk of his intention to "... prosecute an appeal of the Opinion rendered in this case ... on [24 October 1995]...." On 21 November 1995, Judge Cawood corrected, by interlineation, a non-substantive typographical error in his written opinion.

On or about 23 January 1996, the attorney for Mrs. Jenkins mailed to Judge Cawood, with a copy to opposing counsel, a proposed order embodying the requisite declaratory judgment and QDRO aspects. In a cover letter, Mrs. Jenkins's attorney claimed that counsel for Mr. Jenkins, having reviewed the proposed order previously, declined to sign it because of the pending appeal. Mr. Jenkins's attorney apparently did not dispute that the proposed order conformed to the judge's written opinion and the directives contained therein. The judge signed the order on 31 January 1996 and it was docketed on 9 February 1996.

ANALYSIS
I.

In his Order for Appeal, Mr. Jenkins informed the clerk that "[t]he Plaintiff, Randall Campbell Jenkins, will prosecute an appeal of the Opinion rendered in the case by The Honorable, James C. Cawood, Jr., presiding. The Opinion was signed [24 October 1995] (copy attached). Please docket this appeal and transmit the record accordingly to the Court of Special Appeals." (Emphasis added.) Appended to the Order for Appeal was a certificate of service to opposing counsel and a copy of the 24 October 1995 opinion.

We do not base our decision upon the language in the Order for Appeal which purports to appeal the opinion of the court. Without regard to the text of the order for appeal, we are required to accept it if timely filed. Institutional Mgt. Corp. v. Cutler Computer Concepts, Inc., 294 Md. 626, 630-31, 451 A.2d 1224 (1982); Shipp v. Autoville Ltd. 23 Md.App. 555, 559, 328 A.2d 349 (1974), cert. denied, 274 Md. 725 (1975). Mr. Jenkins, however, did not file in a timely manner. Had he filed the same "Order for Appeal" during the proper period, we would be compelled to accept it as conferring appellate jurisdiction, even though it purports to appeal the opinion and not a judgment.

In Maryland, and most other jurisdictions, generally only final judgments are appealable. 4 We conclude that Mr. Jenkins's notice of appeal was filed before a final judgment was entered. Because it was filed before entry of final judgment, we must instead consider the Order for Appeal premature and continue our analysis of its propriety.

The longstanding rule in this State deems the existence of a final judgment as a jurisdictional fact prerequisite to the viability of an appeal. E.g., Estep v. Georgetown Leather Design, 320 Md. 277, 283, 577 A.2d 78 (1990) (determining that an order or judgment is not appealable unless it is final); Institutional Management, 294 Md. at 629, 451 A.2d 1224; Eastgate Assocs. v. Apper, 276 Md. 698, 700, 350 A.2d 661, 663 (1976); Sheeler v. Handelman, 212 Md. 152, 129 A.2d 78 (1957); Wegefarth v. Weissner, 132 Md. 595, 106 A. 854 (1918); Phillips v. Pearson, 27 Md. 242 (1867). The date of entry of a final judgment, under Md. Rule 8-202 5, fixes the post-judgment schedule for the filing of certain documents, including the notice of appeal.

Mr. Jenkins argues that the 24 October 1995 opinion was a final, appealable judgment when it was entered on the docket on 27 October 1995. If this were the case, his notice of appeal would have been timely. Mr. Jenkins contends that the opinion left nothing for the trial court to do and, therefore, was final. The pivotal case on the issue of finality of judgment when additional trial court action is expressly contemplated, is Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989). The Court of Appeals, in Rohrbeck, clarified the final judgment requirement and the effect of contemplated trial court actions.

The Rohrbeck trial court entered a "Judgment of Absolute Divorce" on 13 June 1988. The judge's order granted the wife a divorce, awarded her custody of the parties' child, and reserved for future determination other issues raised in the pleadings. These additional issues were tried before another judge, who issued an oral decision from the bench on 13 July 1988. Her decision purported to be final except that she anticipated the subsequent issuance of one or more Qualified Domestic Relations Orders 6 (QDRO's or Quadros).

The question raised in Rohrbeck was whether the QDRO's were collateral to or an integral part of the primary judgment. The Court concluded that the character of QDRO's depends upon the circumstances in which they prove necessary. In many instances, a QDRO is issued after judgment as an enforcement tool to effectuate the disposition of property under Md. Fam. Law Code Ann. § 8-205. There are other circumstances when the need for a QDRO may not be apparent at the time of final judgment. In such cases, a QDRO is collateral and not necessary to a final judgment.

In the Rohrbeck case, however, the judge, throughout her remarks, made it clear that she contemplated the entry of QDRO's before the judgment would become final. Her opinion stated, in part:

Madam Clerk, I am going to try and tell you to enter judgment when I get to these because this is going to be the final judgment in this case with the one exception, and that is to the extent there are quadros [QDRO's], I would like to have the order that you both have agreed to on my desk on Monday so that I can sign the order on the quadros. All right. I will try to clue you, Madam Clerk, when you need to enter a judgment.

Rohrbeck, 318 Md. at 37, 566 A.2d 767 (emphasis in original). The judge followed this statement with an order regarding custody of the child, establishing a visitation schedule, awarding counsel fees, distributing marital property, and determining the parties' alimony and support obligations. During the requisite marital property analysis, the judge determined that certain portions of the husband's property would be subject to QDRO's and that she would "specify what they would be afterward." The parties orally evidenced an understanding that a written order encompassing the decision of the court and proposed QDRO's would be presented for the judge's signature. No written order reflecting the judge's oral pronouncement was ever presented, signed, or...

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