Brodak v. Brodak

Smith, J., delivered the opinion of the Court. In this case neither the former husband, George Joseph Brodak (the husband), nor the former wife, Rose Marie Elizabeth Brodak (the wife), is happy with the chancellor’s decision in their divorce action. Each appealed to the Court of Special Appeals. The husband is firmly of the view that the chancellor erred in his determination of what was marital property and in the amount of monetary judgment entered based upon its value.

The wife feels aggrieved because the chancellor reserved the question of alimony rather than awarding it in the decree dated August 25,1981. Their dissatisfaction, which we find to be without a sound legal basis, produces the question which prompted us to grant certiorari in this case upon the parties’ petition prior to a decision by the Court of Special Appeals. Maryland Code (1974, 1980 Repl. Vol.) § 3-6A-05 (a), Courts and Judicial Proceedings Article, provides that in granting an absolute divorce, "or at any time within 90 days thereafter, if in its decree granting the divorce ... the court has expressly reserved the power to do so, the court shall determine which property is marital property if the division of property is an issue.” The divorce decree in this instance did reserve the power to determine the division of marital propérty.

Unfortunately, the decree making the marital property designation was not filed until the ninety-first day after the divorce decree. Hence, the husband contends, relying upon Russell v. Russell, 50 Md. App. 185 , 436 A.2d 524 (1981), that the Circuit Court for Garrett County was without jurisdiction to make the award. We disagree and shall affirm on all issues. i The ninety-day issue Prior to the General Assembly’s passage of the act relative to marital property, Ch. 794 of the Acts of 1978, which is codified as Code (1974, 1980 Repl. Vol.) §§ 3-6A-01 to -07, Courts and Judicial Proceedings Article (the Act), Maryland courts granting a divorce a mensa et thoro or a vinculo matrimonii were empowered by Code (1957) Art. 16, § 29 "to ¹³ hear and determine all questions which mLight] arise between the parties to such proceeding in connection with the ownership of personal property (except chattels real) held, possessed or claimed by either or both of them, and ... ha[d] the power to make a division of such property between them, or order a sale thereof and a division of the proceeds of such sale, or make such other disposition thereof as the court m[ight] deem proper.” No authority existed, however, to award to one spouse property solely owned by the other spouse.

Bowis v. Bowis, 259 Md. 41, 45-46 , 267 A.2d 84 (1970); Gebhard v. Gebhard, 253 Md. 125, 130 , 252 A.2d 171 (1969); Brucker v. Benson, 209 Md. 247, 250 , 121 A.2d 230 (1956); and Dougherty v. Dougherty, 187 Md. 21, 32 , 48 A.2d 451 (1946). The husband’s argument runs as follows: Since "the courts of equity in Maryland had no jurisdiction [prior to the enactment of the Act] to adjust the property rights of spouses or to make a monetary award to a wife who had not contributed financially toward the purchase of property held by the husband” and since the provision in § 3-6A-05 (a) is for a period of time "within 90 days” after the granting of an absolute divorce or annulment, "[i]t is clear that the court’s jurisdiction to further entertain the matter after having expressly reserved the power to do so is lost if a determination is not made within the time prescribed.” He then says, "The precise issue presented here was before the court in Russell v. Russell, 50 Md. App. 185 (1981).” In Russell a decree dated August 26 reserved " 'the issue of monetary award of the marital property.’ ” A hearing was held on November 24. The decree was passed on December 29. It seems, according to the Court of Special Appeals, that the parties "agreefd] that the time in which the court would determine which property was marital property would be extended beyond 90 days after the divorce decree.” 50 Md. App. at 186 .

The court said: "[H]aving failed to designate the marital property within this time, the court lost jurisdiction and any determination thereafter concerning the appellee’s pension rights were nugatory. The parties could not ¹⁴ confer jurisdiction by consent where the jurisdiction did not exist under the appropriate law; this deficiency may be raised at any time. Stewart v. State, 287 Md. 524, 527 , 413 A.2d 1337, 1339 (1980).” 50 Md. App. at 187 . 1 However, we were not requested to review that decision. We agree that the parties could not by their mutual assent extend the time within which the chancellor was to act, but we disagree with the concept that because of the delay "the court lost jurisdiction and [for that reason] any determination's] thereafter concerning the appellee’s pension rights were nugatory.” In Stewart v. State, 287 Md. 524 , 413 A.2d 1337 (1980), we were faced with the issue of whether an indictment returned by a grand jury was void ab initio.

Stewart was alleged to have been delinquent. Juvenile jurisdiction was waived, from which order Stewart appealed. The Court of Special Appeals affirmed the waiver order. Prior to the issuance of the mandate by the intermediate appellate court, the grand jury returned an indictment charging him with the crime that served as the basis of the delinquency petition.

He argued that the indictment was void because it had been returned prior to issuance of the mandate in the appeal of the waiver determination. We affirmed the decision of the Court of Special Appeals holding that the indictment was not void. Judge Digges said for the Court in that case: "In explaining the rationale for the mandate we issue in this case, it may be well to recall for the reader that' "[j]uridically, jurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid [final judgment], and (ii) the propri ¹⁵ ety of granting the relief sought. 1 Pomeroy, Equity Jurisprudence (5th ed. 1941), Secs. 129-31.”’ First Federated Com. Tr. v. Comm’r, 272 Md. 329, 334 , 322 A.2d 539, 543 (1974) (quoting Moore v. McAllister, 216 Md. 497, 507 , 141 A.2d 176, 182 (1958)).

Thus, it is only when a court lacked fundamental jurisdiction to render the judgment it did that there is an absence of authority in the court so as to render its judgment a nullity. First Federated Com. Tr. v. Comm’r, supra, 272 Md. at 334 , 322 A.2d at 543 . Accord, Pulley v. State, 287 Md. 406 , 412 A.2d 1244, 1248-51 (1980); Parks v. State, 287 Md. 11, 17-19 , 410 A.2d 597, 601-02 (1980); Block v. State, 286 Md. 266, 270-73 , 407 A.2d 320, 322-24 (1979).

On the other hand, 'the question of whether it was appropriate to grant the relief merges into the final [judgment] and cannot therefore be successfully assailed for that reason once enrolled.’ First Federated Com. Tr. v. Comm’r, supra. The power possessed by a court to hear and determine disputes, including that which is inherent, is derived from applicable constitutional and statutory pronouncements. So if, by that law which defines the authority of the court, a judicial body is given the power to render a judgment over the class of cases within which a particular one falls, then its action cannot be assailed for want of subject matter jurisdiction.

The circuit courts of this State, such as the Circuit Court for [Cecil] County, are courts of original general jurisdiction, Maryland Const., Art. IV, §§ 1,19, 20 and therefore, they may hear and decide all cases at law L(which include criminal causes)] and in equity [(which include juvenile causes)] other than those which fall within the class of controversies reserved by a particular law for the exclusive jurisdiction of some other forum. [First Federated Com. Tr. v. Comm’r, supra, ¹⁶ 272 Md. at 335 , 322 A.2d at 543 (citations omitted).] To this we add the widely acknowledged principles that parties cannot confer jurisdiction, in its fundamental sense, upon a court by consent, and that the lack of such jurisdiction may be raised at any time, including initially on appeal. But when a court of general jurisdiction has jurisdiction over the subject matter of the litigation and also the parties, it ordinarily has power to decide the issue in dispute between those parties.” 287 Md. at 526-28 (emphasis and bracketed material in original; footnote omitted). Relying upon Pulley v. State, 287 Md. 406, 417-19 , 412 A.2d 1244 (1980), we concluded in Stewart, 287 Md. at 529 , that "the circuit court... retained jurisdiction over the subject matter and was not deprived by a stay order or otherwise by law from exercising that jurisdiction pending the appeal” and that the indictment was not a void document.

There is nothing in the statute here to indicate an intent on the part of the General Assembly to strip the court of its jurisdiction relative to marital property after the lapse of ninety days from the date the decree was entered. The statute does not state that if a court, under the circumstances here, grants an absolute divorce it shall have jurisdiction only for a period of ninety days. Rather, it says that in granting a divorce "or at any time within 90 days thereafter [under certain circumstances] the court shall determine which property is marital property if the division of property is an issue.” In Parks v. State, 287 Md. 11 , 410 A.2d 597 (1980), Judge Cole observed for the Court: "A trial court has jurisdiction for purposes of double jeopardy when it has jurisdiction over the subject matter and the person of the defendant. A statute which seeks to limit the period in which a court should exercise its authority does not deprive it of jurisdiction for purposes of double jeopardy considerations.

Thus, if the court exercises its power ¹⁷ outside the prescribed period, its judgment is not thereby rendered void but only voidable.” 287 Md. at 16-17. In that case the accused was not brought to trial until 124 days after he filed a request for the disposition of an intrastate detainer pursuant to Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.) Art. 27, § 616S, which required that he be tried within 120 days after receipt of the request by the proper authorities.

We held that the trial court at all times had jurisdiction over both the defendant and the subject matter and that "[t]he expiration of the 120 day period in the statute affected neither of these grounds of jurisdiction.” Id. at 19. Accordingly, we hold in this instance that the court was not deprived of jurisdiction by its failure to act within the ninety-day period. The husband’s basic contention here is that the language in the statute is mandatory and that because the trial court did not act within ninety days, the sanction should be that the court is prohibited from acting. Such is not the law.

Although the parties have spent time talking about whether the word "shall” in the statute is directory or mandatory, we do not see this case as turning upon that point. A number of our cases have considered issues similar to that in the case at bar. For instance, in McCall’s Ferry Co. v. Price, 108 Md. 96 , 69 A. 832 (1908), a motion for reargument was filed on the ground that the Court’s opinion had not been filed within three months after the argument as required by Maryland Constitution art. IV, § 15.

The Court took pains there to point out that when it "reached the conclusion that the judgment must be affirmed, and in order that the parties might know that conclusion, [the Court] filed on April 9, 1908, a per curiam order affirming the judgment, stating that the opinion would thereafter be filed, as has been the practice of this Court, when the circumstances justified and required that course.” 108 Md. at 114 . The Court did discuss the directory-mandatory issue, stating: "So far as we are aware, it has always been the opinion of the members of this Court that the clause ¹⁸ is merely directory, and not mandatory, and hence the Court has not hesitated when circumstances required it to file opinions after the three months. It has for example sometimes at its final sittings at the April Term (usually in June) when for some satisfactory reason no opinion had been adopted, affirmed cases by per curiam orders, and filed opinions at the following October Term. The object of the constitutional provision is to have prompt decisions of causes, and no one can justly complain of unnecessary delay by this Court in filing opinions and deciding cases before it.

It certainly would not be within either the letter or the spirit of this provision to grant a reargument, because an opinion had not been filed within three months — thereby causing further delay.” Id. at 113 . In Snyder v. Cearfoss, 186 Md. 360 , 46 A.2d 607 (1946), it was contended "that the trial court lost its jurisdiction by reason of the fact that it did not rule on the motion [for a new trial] within two months from the date of the hearing.” 186 Md. at 370 . The appellant relied upon Const, art. IV, § 23 which provides that circuit courts shall render their decisions in all cases "within two months after the same shall have been . .. argued or submitted.” Judge Henderson said for the Court, "[T]he trial court did not lose its jurisdiction to pass upon the motion by reason of delay; if it had lost jurisdiction to pass upon the motion, it could be argued with equal force that it lost jurisdiction to enter the final judgment.” Id.

See also Resetar v. State Bd. of Education, 284 Md. 537, 547-50 , 399 A.2d 225 , cert. denied, 444 U.S. 838 (1979). The effect of "shall” depends upon the context in which it is used. In re James S., 286 Md. 702 , 410 A.2d 586 (1980), involved a statute stating that if it were alleged that a juvenile was delinquent, a petition alleging delinquency was to be prepared and filed by the State’s attorney, with the further proviso that such petition "shall be filed within 15 days after the receipt of a referral from the intake officer.” There we were struck by the similarity between the language used ¹⁹ in the statute then under consideration and that contained in the various statutes of limitations. We saw the statute "as clearly and unambiguously requiring that a petition alleging delinquency must be filed within 15 days after the receipt of a referral from the intake officer.” 286 Md. at 713.

The failure there was on the part of the attorney for one of the parties, the prosecutor. In contrast, the allegation here is not that one of the parties has failed to act, but that the arbiter has not acted within the specified time. The case at bar is closely analogous to In re Dewayne H., 290 Md. 401 , 430 A.2d 76 (1981). Dewayne H. concerned the time provision in Maryland Rule 915 a which requires that a "disposition hearing [in a juvenile proceeding] shall be held no later than thirty days after the conclusion of the adjudicatory hearing.” In that case the juvenile court master did not hold that hearing until the thirty-first day.

A judge sitting for juvenile matters regarded himself as bound under the rule to dismiss the proceeding. We held to the contrary, stating: "Enlightenment as to the sanction to be applied for violation of a command with the word 'shall’ in a situation similar to that in the case at bar is found in State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979). The Court there said: There are two circumstances, however, under which dismissal is not an appropriate sanction for violation of Rule 746. First, in addition to the requirement that, absent extraordinary cause, criminal cases at the circuit court level be tried within 120 days of the appointment or waiver of counsel or after the appearance of counsel under Rule 723, Rule 746 also requires that the act of setting this trial date be done within 30 days.

Of course, as long as the case is tried within the 120-day deadline, the purpose of the rule and the statute upon which it is based, namely having the case tried promptly, will be accomplished, even if the setting of that trial date is not done within 30 ²⁰ days. In other words, the legislative purpose underlying § 591 and Rule 746 will in no way be advanced by holding that dismissal is the appropriate sanction for violation of the 30-day requirement. For this reason, we do distinguish between the 120-day requirement and the 30-day requirement. While the 30-day requirement is mandatory for those persons involved in setting the trial date, we hold that dismissal of the criminal case is not an appropriate sanction for violation of the 30-day provision. [Id. at 335.] "Unlike the bringing of a civil or criminal proceeding where the applicable time limits are largely in the control of the party initiating the litigation, neither party here had control over the date set for the disposition hearing.

We do not have before us in this proceeding the question of what, if any, sanction other than dismissal of the proceeding might be applied. . . . The State as the representative of the general public has an interest in seeing that this juvenile is rehabilitated so that he becomes a useful citizen and in no way a menace to society. In that circumstance it simply does not follow that the proper sanction for violation of the rule is dismissal of the proceeding. The reasoning we have set forth from Hicks is applicable here.

The juvenile judge erred.” 290 Md. at 406-07 . Although the husband relies upon Scherr v. Braun, 211 Md. 553 , 128 A.2d 388 (1957), that case is readily distinguishable. It illustrates a situation where the General Assembly has stated that the failure to act on the part of one vested with responsibility for deciding a matter may have a specified effect. That case involved an appeal from the Board of Liquor License Commissioners for Baltimore City.

The statute contained a provision similar to that currently found in Code (1957, 1981 Repl. Vol.) Art. 2B, § 175(e)(3), which states, "The failure of the court to determine an appeal ²¹ within a period of 30 days after the record has been filed in court by the local board .. ., shall constitute an automatic affirmance of the local board’s decision, unless the time has been extended by the court for good cause shown.” Judge Hammond pointed out for the Court that a provision is generally regarded as directory "[wlhere the directions of a statute look to the orderly and prompt conduct of business, including