Pappas v. Pappas

• Citation: 287 Md. 455,413 A.2d 549
• Decision Date: 21 April 1980
• Docket Number: No. 93,93
• Parties: Apostolos George PAPPAS v. Norma C. PAPPAS.
• Court: Court of Appeals of Maryland

Page 455

287 Md. 455

413 A.2d 549

Apostolos George PAPPAS v. Norma C. PAPPAS.

No. 93.

Court of Appeals of Maryland.

April 21, 1980.

Bruce A. Kaufman, Baltimore (Thomas Carey Ries and Miller, Rosenthal, Pittler & Kaufman, P. A., Baltimore, on the brief), for appellant.

Norma C. Pappas, in pro. per.

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

SMITH, Judge.

We shall here hold that the Court of Special Appeals was but partially correct when it dismissed two appeals in this case under the provisions of Maryland Rule 605 (a). ¹

The appeals before the Court of Special Appeals were by Dr. Apostolos George Pappas from orders of the Circuit Court for Baltimore County in litigation between him and his wife, Norma C. Pappas. In the first appeal he claimed that the chancellor erred when he granted a divorce a vinculo matrimoni to Mrs. Pappas, dismissed the bill of Dr. Pappas for divorce a mensa et thoro, and failed to award the custody of the children of the parties to Dr. Pappas. The appeal was from a decree which divorced Mrs. Pappas from her husband a vinculo matrimoni; awarded her permanent alimony with "the amount thereof being reserved and subject to the continuing jurisdiction and further Order of (the) Court"; awarded the permanent care and guardianship of the minor children of the parties to Mrs. Pappas with, however, the "custody of the minor children . . . be(ing) retained by the Court"; stated that Dr. Pappas should contribute monetary child support to Mrs. Pappas, the amount, however, "being reserved, and subject to the continuing jurisdiction and further Order of (the) Court"; ordered that neither of the parties should remove any of the children of the parties "from the State of Maryland or from the Continental United States, without prior hearing and without the prior Order of (the) Court"; directed that all passports of the children should be surrendered to the Clerk of the Circuit Court for Baltimore County for safekeeping and that no further application for passports for the children should be made without prior hearing and prior written order of that court first had and obtained; directed that Dr. Pappas "pay and contribute toward the counsel fee of Norma C. Pappas' solicitors of record and her suit money, such sum as sh(ould) (later) be determined" by the court; retained continuing jurisdiction of the matter of division of personal property and monies of the parties; and dismissed the bill of complaint of Dr. Pappas. No application was made to the trial judge for an order entering a final judgment pursuant to the provisions of Rule 605 a.

Subsequent to entry of the divorce decree, Mrs. Pappas filed a petition in the trial court in which she referred to the fact that Dr. Pappas continually harassed her; pointed to his earning capacity as testified to in the proceedings; asserted that although the court had said it would render a temporary alimony and support order "until it could adjudicate, finally, the amount of permanent alimony and support" to which she might be entitled, approximately two months had elapsed without any such temporary order; said that no alimony or support had been ordered by the court nor had any sums been paid voluntarily to her by Dr. Pappas, and prayed the court to pass "an immediate injunction against harassment" as well as an "order (for) immediate temporary allowance of support and alimony . . . ." An ex parte order was passed enjoining Dr. Pappas from harassing his wife or his children or confronting or communicating with Mrs. Pappas except through counsel "or from in any way intimidating, assaulting, or threatening her or telephoning her" and for the payment of $400 per week as alimony pendente lite and support pendente lite for the minor children of the parties. Dr. Pappas appealed from that also.

The two appeals reached the Court of Special Appeals in one record. Ex mero motu that court raised the issue of Rule 605 a. It dismissed the appeals in an unreported opinion (No. 708, September Term, 1978, filed July 19, 1979), stating:

An examination of the record in this case reveals that there are as many claims remaining unsettled by the trial court's decree as there are issues that have been determined. If jurisdiction existed at this time, we can conceive of a series of appeals which might well keep the litigants in this case (and this Court) busy for the foreseeable future. Our responsibility in this case is clear. We are required by rule and case law to recognize our lack of jurisdiction and to dismiss the appeal. See Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976).

Our grant of the writ of certiorari in this case was limited solely to the question of whether the Court of Special Appeals erred in dismissing the appeals, holding that they were barred by Rule 605 a.

I

The right of appeal is granted in Maryland from two types of orders or judgments. Code (1974) § 12-301, Courts and Judicial Proceedings Article, states in pertinent part:

Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil . . . case by a circuit court. The right of appeal exists form a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. (Emphasis added.)

The exceptions to the right of appeal set forth in § 12-302 are not applicable to this proceeding. Code (1974) § 12-101 (f), Courts and Judicial Proceedings Article, defines "final judgment" as meaning "a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken." Judge Digges pointed out for the Court in Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91, 394 A.2d 801, 804 (1978), "(A)s this definition implies, it is ultimately for this Court to decide which judgments or orders are final and therefore appealable under section 12-301. Warren v. State, 281 Md. (179) at 183, 377 A.2d (1169) at 1171 ((1977))." Maryland Rule 5 o says, " 'Judgment' means judgment at law, decree in equity and any other order of court final in its nature."

Rule 605 a states:

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 upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.

The right of appeal from certain interlocutory orders is granted in § 12-303. It states in pertinent part:

A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:

(c) An order:

(1) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause.

(5) For . . . the payment of money . . . .

(10) Depriving a parent . . . of the care and custody of his child . . . .

II

We turn first to consideration of the attempted appeals by Dr. Pappas from the order denying him custody of his children, the injunction against harassing his wife, and the order directing payment of $400 per week as alimony pendente lite and support pendente lite for the minor children of the parties. It will be noted that the appeals permitted under § 12-303 from interlocutory orders include those from the granting of an injunction, for the payment of money, or depriving a parent of the care and custody of his child. In the matter of an appeal from the granting of an injunction the statute specifies that such an appeal may be entered "only if the appellant has first filed his answer in the cause." In this instance the answer was filed the day before the entry of the order for appeal.

In Funger v. Mayor of Somerset, 244 Md. 141, 223 A.2d 168 (1966), it was argued that Rule 605 a superseded the provisions relative to appeals from interlocutory orders in what is now § 12-303. Chief Judge Hammond there referred for the Court to our rulemaking power under what is now Maryland Constitution Art. IV, § 18 and the fact that under that section the General Assembly may rescind, change or modify a rule of this Court. He then went on to say for the Court:

Section 35 of Art. 5 (Code, 1951), before its repeal and the enactment in lieu thereof of a new Art. 5, contained a provision making appealable an order refusing to grant an injunction and if Rule 605 a be assumed to have superseded that provision in multiple claims actions, it seems clear that the 1957 action of the Legislature restored the situation to where it was before Rule 605 a was passed. In enacting Ch. 399 the Legislature was concerned directly and precisely with the interplay of its statutes and the rules of the Court of Appeals. In that enactment it repealed statutes which were made ineffective or obsolete by the new rules and preserved or newly enacted the statutes it desired to be still effective. Under the circumstances it must be presumed that with full knowledge of Rule 605 a and its possible impact on the right to appeal the refusal of an injunction in multiple claims actions, the Legislature enacted § 7 of Art. 5 to provide for immediate appeals from the refusal of an injunction without expressly excepting such refusals in multiple claims cases. We think the right of appeal in the classes of actions enumerated in § 7 is general and...