Milburn v. Milburn

• Decision Date: 04 February 2002
• Docket Number: No. 87,87
• Citation: 790 A.2d 744,142 Md. App. 518
• Parties: Joel T. MILBURN v. Karen R. MILBURN.
• Court: Court of Special Appeals of Maryland

790 A.2d 744

142 Md. App. 518

Joel T. MILBURN v. Karen R. MILBURN.

No. 87, Sept. Term, 2001.

Court of Special Appeals of Maryland.

February 4, 2002.

Jennifer L. Hammond (Hammond & Campbell, LLP on the brief), Elkton, for appellant.

Brenda A. Sexton (Wilson & Sexton on the brief), Elkton, for appellee. Submitted before DAVIS, HOLLANDER, and RAYMOND G. THIEME, JR. (retired, specially assigned), JJ.

DAVIS, Judge.

Appellant Joel T. Milburn appeals from an order¹ dated March 1, 2001, wherein the trial judge for the Circuit Court for Cecil County refused to accept the Stipulation of Dismissal signed by all parties pursuant to Maryland Rule 2-506, filed February 28, 2001. Appellant noted this timely appeal on March 30, 2001, presenting the following question for review:

Did the trial court err in refusing to accept the Joint Stipulation of Dismissal signed by appellant and appellee?

We answer the question in the affirmative and, therefore, reverse the judgment of the trial court.

FACTUAL BACKGROUND

Appellant and appellee were married in a religious ceremony in Cecil County, Maryland on December 29, 1985. Two children, Cristina and Joel, Jr., were born of the union on August 12, 1986 and January 8, 1990, respectively. The marital home, located at 1583 Appellant Road, Elation, Maryland, was owned by appellant and appellee as tenants by the entireties.

On August 24, 2000, appellant filed a Complaint for Absolute Divorce, including a request for the "custody of the minor children of the parties, both pendente lite and permanently." Appellee filed an answer on September 20, 2000. A hearing to determine temporary custody of the minor children was held on December 13, 2000, and, in a temporary order entered on January 4, 2001, the trial court stated that the parties were to have joint legal custody of the children. Appellant was awarded physical custody; however, Cristina was to live with her paternal grandparents, Gail and Evans Milburn. Appellee was permitted visitation with the children every other weekend. The court ordered the parties to participate in custody evaluation with Family Court Services and attend a seminar, "Parenting for Parents Who Live Apart." During a second hearing, conducted on February 22, 2001, appellant was ordered to participate in a drug and alcohol evaluation program. The trial court also interviewed the children and appointed a guardian ad litem.

Subsequent to the February 22, 2001 hearing, the parties reconciled. In light of their reconciliation, the parties signed and filed a Joint Stipulation of Dismissal, pursuant to Rule 2-506. The trial court denied the parties' stipulation and, on March 2, 2001, entered an order, which stated in relevant part:

[The] parties' stipulation of dismissal is not accepted by the [c]ourt at this time. An attorney has been appointed for the minor children and a custody evaluation ordered.

There is also a drug and alcohol evaluation ordered for the father. The [c]ourt does not believe it to be in the children's best interests to dismiss the case at this time. The evaluations should proceed as ordered.

Appellant filed this timely appeal on March 30, 2001 and, on April 16, 2001, the trial court entered an order requiring the parties to deposit $1,500 into an escrow account with the guardian ad litem, John Downs, Esquire.

LEGAL ANALYSIS

Appealability

Preliminarily, the general rule is that only final judgments are appealable. Md.Code (1998 Repl.Vol.), Cts. & Jud. Proc. (C.J.) § 12-301. Not surprisingly, neither party has addressed the issue of appealability because both are desirous of our immediate review of the lower court's ruling. Nevertheless, the consent of the litigants will not confer jurisdiction upon an appellate court. As the Court of Appeals observed in Clark v. Elza, 286 Md. 208, 211, 406 A.2d 922 (1979):

In this Court, both sides now agree that the decision of the circuit court was immediately appealable. Nevertheless, the consent of the litigants cannot vest jurisdiction in an appellate court. Recently in Biro v. Schombert, 285 Md. 290, 402 A.2d 71 (1979), we observed:

The apparent acquiescence of the parties to the exercise of appellate jurisdiction... does not enable us to overlook the matter. As we stated in Eastgate Associates v. Apper, 276 Md. 698, 700-701, 350 A.2d 661 (1976): "The jurisdiction of this Court, and the Court of Special Appeals, is determined by constitutional provisions, statutory provisions and rules; jurisdiction cannot be conferred by consent of the parties." Consequently, "this Court will dismiss an appeal sua sponte when it notices that appellate jurisdiction is lacking." Smith v. Taylor, 285 Md. 143, 400 A.2d 1130 (1979). See Rule 835 a 1. Similarly, where the Court of Special Appeals has entertained an appeal without having jurisdiction to do so, and the case is timely brought to our attention (such as by a petition for a writ of certiorari dealing with the merits of the appeal), we will issue a writ of certiorari and sua sponte consider the jurisdiction of the intermediate appellate court. Eastgate Associates v. Apper, supra. See also Liberty Mut. Ins. Co. v. Wetzel,

424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976) ("[Alt]hough neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists.").

Consequently, we must make an independent determination as to the appealability of the trial court's decision.

The issue of appellate jurisdiction is one that may be raised sua sponte. See Biro, supra. As we explained in Stephenson v. Goins, 99 Md.App. 220, 636 A.2d 481 (1994), a final judgment must possess three attributes:

(1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601.

Id. at 223, 636 A.2d 481. Because the order of the trial court in the case sub judice, by its very nature, was not intended as an unqualified, final disposition of the matter in controversy, nor did it satisfy the other two prongs stated above, it did not constitute a final judgment.

There are, however, several exceptions to Rule 2-601. Certain non-final orders, i.e., collateral orders and judgments certified pursuant to Md. Rule 2-602, are appealable. See Jenkins v. Jenkins, 112 Md.App. 390, 399, 685 A.2d 817 (1996)

. The underlying purpose of these exceptions is to "allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Cohen is instructive as to the threshold issue we consider: whether this action should proceed to conclusion in the lower court before appellate review.

In Cohen, the Supreme Court was presented with the issue of whether a federal court was required to apply 1945 N.J. Laws 131, rendering appellee liable for the "reasonable expenses and attorney's fees" of appellant's defense, in the event appellee was unsuccessful in its shareholder suit. The issue necessitated the review of a decision that was not a final judgment, nor did it constitute an appealable interlocutory judgment. In proceeding to the merits of the appeal, the Court opined:

... The purpose [of the collateral order doctrine] is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. But this order of the [U.S.] District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order, and the rights conferred by the [N.J.] statute, if it is applicable, will have been lost, probably irreparably. We conclude that the matters embraced in the decision appealed from are not of such an interlocutory nature as to affect, or to be affected by, [the] decision of the merits of this case.

This decision appears to fall in that small class which finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.

Id. at 546, 69 S.Ct. 1221.

In Baltimore Police v. Cherkes, 140 Md. App. 282, 298, 780 A.2d 410 (2001), we discussed when an appeal would be permitted under the collateral order doctrine:

The Court of Appeals has "`long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as "final judgments" without regard to the posture of the case.'" State v. Jett, 316 Md. 248, 251, 558 A.2d 385 (1989) (quoting Harris v. David S. Harris, P.A., 310 Md. 310, 315, 529 A.2d 356 (1987)). Collateral orders of this sort are treated as final under the "collateral order doctrine," which was first recognized by the United States Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). For an order to be appealable under that doctrine it must: (1) conclusively determine the disputed question, (2) resolve an important issue, (3) be completely separate from the merits of the action, and (4) be effectively unreviewable on appeal from a final judgment. Nelson v. Kenny, 121 Md. App. 482, 485, 710 A.2d 345 (1998) (citing Jett, 316 Md. at 251, 558 A.2d 385; Bunting v. State, 312 Md. 472, 477, 540 A.2d 805 (1988); Harris v. Harris, supra, 310 Md. at 316, 529 A.2d 356.)

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Absolute immunity ... is a time-bound right

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