Remson v. Krausen

• Decision Date: 28 June 2012
• Docket Number: No. 2187,Sept. Term, 2010.,2187
• Citation: 206 Md.App. 53,47 A.3d 613
• Parties: Alan Sanford REMSON v. Karen KRAUSEN f/k/a Karen Remson.
• Court: Court of Special Appeals of Maryland

206 Md.App. 53

47 A.3d 613

Alan Sanford REMSON

v.Karen KRAUSEN f/k/a Karen Remson.

No. 2187, Sept. Term, 2010.

Court of Special Appeals of Maryland.

June 28, 2012.

Mark W. Oakley (Oakley & Eckstein, LLC, on the brief) Rockville, MD, for appellant.

No brief submitted.

Panel: WOODWARD, WRIGHT, and HOTTEN, JJ.

HOTTEN, J.

On September 25, 2008, appellee, Karen Krausen, f/k/a as Karen Remson, filed a complaint for limited divorce in the Circuit Court for Montgomery County. During the proceedings, the parties signed a consent order enjoining appellant, Alan Sanford Remson, from contacting appellee. A contempt order was subsequently issued when appellant violated the consent order. Appellant thereafter submitted a motion to set aside the contempt order. During the pendency of that motion, appellant, through new counsel, submitted a motion to withdraw the motion to set aside. Subsequently, the motion to set aside was granted. The motion to withdraw was granted soon thereafter. Appellant, again through new counsel, vigorously attempted to demonstrate that the motion to withdraw was improperly granted. An in banc panel reviewed the issue and concluded that the circuit court did not abuse its discretion in granting the motion to withdraw. Appellant subsequently filed a motion to alter or amend, or in the alternative, motion to strike the contempt order pursuant to Md. Rule 2–535(b).¹ The in banc panel denied the motion and appellant noted an appeal.² For the reasons that follow, we dismiss the pending appeal.

BACKGROUND

On September 6, 2008, the District Court for Montgomery County issued a temporary protective order against appellant. A few weeks later, appellee filed a complaint for a limited divorce. Appellee then filed an emergency motion for injunctive relief, arguing that appellant engaged “in an escalating course of abusive and harassing conduct” that made her fearful. Additionally, appellee alleged that appellant threatened her “livelihood, peace of mind, and safety.” Appellee, in particular, posited that appellant repeatedly called her despite requests to stop, he was verbally abusive during the phone calls, and he repeatedly sent her email and text messages despite numerous requests to stop. Appellant countered that the injunction was unnecessary because he had no intention of initiating future communication. Moreover, appellant averred that the allegations were untrue and exaggerated.

On November 3, 2008, appellant submitted a “NO CONTACT AGREEMENT” (“Agreement”) to the circuit court. The Agreement stated that appellant would not directly or indirectly contact appellee, and that he would refrain from communicating with mutual friends about her. Thereafter, the Agreement provided:

This agreement will be strictly adhered to and if violated, and proof of a violation is forthcoming such as phone records, computer email printouts or a statement from a mutual friend, the attached Order Granting Injunctive Relief shall be entered with the Court and [appellant] shall be liable for a portion of [appellee's] attorney['s] fees which correspond to a breach of this Agreement.

On November 7, 2008, the parties signed a consent order granting injunctive relief. The order provided:

Upon consideration of [appellee's] Motion for Injunctive Relief filed in the above-captioned matter and for good cause shown, it is thereupon this 7 day of November, 2008, by the Circuit Court for Montgomery County, Maryland,

ORDERED, that [appellant], is hereby enjoined from contacting [appellee] in any way, either directly or indirectly, including but not limited to, telephoning, emailing, or texting [appellee]; and it is further;

ORDERED, that should [appellant] fail to abide by this Order, he shall be liable to [appellee] for all attorney's fees and costs for the preparation of the Motion for Injunctive Relief and Order and all sanctions necessary to enforce this Order.

About thirteen days later, appellee filed a motion for contempt, asserting that appellant had contacted her at work. Appellant countered that the allegation was untrue. Specifically, he posited that he was driving home from the doctor when the incident was alleged to have occurred.³ Appellant then noted that he had no intention of violating the injunction because he would lose his security clearance and employment opportunities. After considering the arguments, the circuit court found appellant to be in contempt and sentenced him to thirty days of incarceration. The sentence was suspended, predicated on future compliance and payment of $2500 in attorney's fees.

On September 17, 2009, appellant submitted a motion to set aside the contempt order, noting that he had complied with the provisions of the injunction since June 23, 2009. Appellee opposed, positing that there was no reason to set aside the order. Not long after, appellant retained new counsel, who submitted a motion to withdrawthe motion to set aside. Days later, the motion to set aside the contempt order was granted. The motion to withdraw was then granted, thereby vacating the motion to set aside, which in turn, resulted in the continued viability of the contempt order.

On December 3, 2009, through new counsel, appellant submitted a motion to vacate the order granting the withdrawal. In that motion, appellant argued that the motion to withdraw was “inadvertently filed ...” because he and previous counsel “did not effectively communicate....” Appellant then requested that the circuit court exercise its revisory powers and reinstate the order that set aside the contempt order. Appellee opposed, positing that the court entered the order in error. The motion was denied and appellant subsequently filed a motion to alter or amend, reiterating the same arguments. Again, the circuit court denied the motion. Appellant thereafter requested an in banc panel review to determine whether the circuit court abused its discretion in granting the motion to withdraw.

After the in banc panel concluded that the circuit court did not abuse its discretion, appellant filed a “Motion To Reconsider, Alter Or Amend Order Dated July 9, 2010; Or, In The Alternative, Motion To Vacate Contempt Order Entered June 23, 2009 Pursuant To Rule 2–535(b).” Appellant argued that the contempt order should be vacated because injunctive relief was not properly issued. Namely, appellant averred that it was impossible to determine whether the injunction was permanent or temporary; the reasons for granting the injunction were not properly placed on the record; the reasons for the relief were not stated in writing; there was no reference to harm; and no hearing was held. Appellant then posited that the contempt order should be vacated because there was an “irregularity” in the process of granting the injunction. Appellee opposed, arguing that the in banc panel lacked authority to vacate the contempt order. Appellee also posited that the validity of the injunction was not before the panel. Appellee, nevertheless, averred that the alleged errors must be disregarded because the parties consented to the injunctive relief. In an order dated October 14, 2010, the in banc panel denied appellant's motion without explanation. Appellant thereafter noted an appeal.

DISCUSSION

An in banc panel review has been endearingly referred to as “the poor person's appeal.” Washabaugh v. Washabaugh, 285 Md. 393, 396, 404 A.2d 1027 (1979) (citing Roth v. The House of Refuge, 31 Md. 329, 333 (1869)) (internal quotations omitted). This moniker stemmed from the sentiment that Article IV, § 22 of the Maryland Constitution was enacted “to offer disappointed litigants an alternative method of review that was faster and less expensive than an appeal to the Court of Appeals, and that avoided the necessity of traveling to Annapolis.” Montgomery County v. McNeece, 311 Md. 194, 201, 533 A.2d 671 (1987). Despite the alternative nature of an in banc panel review, its decision “is conclusive, final, and non-appealable by the party who sought the in banc review, and as to that party a reservation of points or questions for consideration by a court in banc is a substitute for an appeal to the Court of Special Appeals.” Id. at 198, 533 A.2d 671 (citing Buck v. Folkers, 269 Md. 185, 186–87, 304 A.2d 826 (1973); Bd. of Med. Exam'rs v. Steward, 207 Md. 108, 111–12, 113 A.2d 426 (1955); Costigin v. Bond, 65 Md. 122, 3 A. 285 (1886)). Put another way, Article IV, § 22 constitutionally proscribes an appeal from a decision of an in banc panel against the party that brought the review. See State Roads Comm'n v. Smith, 224 Md. 537, 544, 168 A.2d 705 (1961).

Because the pending appeal stemmed from an in banc panel review that appellant initiated, we instructed him to show cause “why this appeal should not be dismissed as an impermissible appeal from the decision of an in banc panel of the circuit court.” Appellant responded, arguing that the issues on appeal were distinct from those addressed by the in banc panel. Appellant, in particular, averred that the panel considered whether the circuit court abused its discretion in granting a motion to withdraw, whereas the pending appeal concerned whether the circuit court abused its discretion in denying a motion to vacate, and whether it erred in denying the motion to dissolve the injunction.

We recognize that the in banc panel reviewed whether the circuit court abused its discretion in granting the motion to withdraw. However, the record contradicts the position that the circuit court considered appellant's request to dissolve the injunction and vacate the contempt order. Each issue was first raised in appellant's “Motion To Reconsider, Alter Or Amend Order Dated July 9, 2010; Or, In The Alternative, Motion To Vacate Contempt Order Entered June 23, 2009 Pursuant To Rule 2–535(b).” Appellant noted an appeal once that motion was denied. At that point, the issues were never presented to the circuit court. Accordingly, for the reasons that follow, we...