Dietz v. Dietz

⁷²⁹ PATRICK L. WOODWARD, Judge, Specially Assigned. Andrea L. Dietz appeals from the Judgment of Absolute Divorce entered by the Circuit Court for Baltimore County on April 1, 1996, which judgment provides, inter alia, that Ms. Dietz is granted a monetary award in the amount of $245,000, payable $20,000 within 5 days and the balance in monthly installments of $1,250.00 for 15 years. Ms. Dietz raises two questions for our consideration. First, she claims that the trial court erred in the application of the three-step procedure for determining whether to grant a monetary award by failing to determine whether Mr. Dietz’s interest in certain real property was marital property and by failing to ascribe a value to that interest if found to be marital property.

Secondly, Ms. Dietz asserts that the trial court abused its discretion by ordering the payment of the monetary award in monthly installments over a 15-year period. Unfortunately for Ms. Dietz, we do not reach these questions, because we have concluded that the appeal in this case must be dismissed. FACTUAL BACKGROUND Andrea L. Dietz and William A. Dietz were married on January 8, 1977. Two children were born of the marriage of the parties, namely, Kevin Michael Dietz, born September 21, 1980, and Jillian Nicole Dietz, born July 26, 1982.

At the time of the marriage, William Dietz was working for his father, Fred E. Dietz, Sr., and with his brother, Fred, Jr., in the family farming and dairy operation. For the first two years of their marriage, the parties lived in a farmhouse on a 700 acre farm that was leased by the family farm operation. In 1978, Fred Dietz, Sr. entered into a contract for the purchase of a 289 acre farm known as the Lang Valley Farm. At the time of settlement on February 1, 1979, the deed that was executed by the seller conveyed the Lang Valley Farm to Fred Dietz, Sr., Fred Dietz, Jr., and William Dietz, as joint tenants.

Fred Dietz, Sr. paid a portion of the purchase price at settlement, and a mortgage for the balance was executed by Fred Dietz, Sr., Fred Dietz, Jr., and William Dietz. When the ⁷³⁰ Lang Valley Farm was purchased, the parties and their children moved to this farm and resided there until 1990. From 1979 to 1984, all payments on the mortgage were made by Fred Dietz, Sr. out of the proceeds of the family farm operation. In 1984, Fred Dietz, Sr. decided to retire and transferred all of the farm operation assets to his sons, Fred Dietz, Jr. and William Dietz.

Fred Dietz, Jr. and William Dietz then formed a partnership known as “Dietz Brothers Partnership,” each owning a one-half (1/2) interest therein. From and after 1984, the Dietz Brothers Partnership continued the family farm operation and paid off the balance of the Lang Valley Farm mortgage. In December of 1990, Andrea Dietz, William Dietz, and their children moved from the Lang Valley Farm to a single family dwelling that the parties had purchased in Baldwin, Maryland. Except for several trial separations, the parties resided there until September 1, 1992, when Mr. Dietz finally moved out and returned to live on the Lang Valley Farm.

Ms. Dietz remained in the house until shortly before it was sold on December 7, 1993. As of February 1995, Ms. Dietz was employed full time at Artography Labs, Inc. as a customer service representative with an income of $23,000 per year. PROCEDURAL HISTORY On October 27, 1992, Andrea Dietz instituted this action by filing a Complaint for Limited Divorce and Other Relief in the Circuit Court for Baltimore County. In her Complaint, Ms. Dietz sought, inter alia, an award of temporary and permanent alimony, custody of both minor children, and child support.

From October 27, 1992 to February 2, 1995, several hearings were held in the circuit court on the issues of alimony, support, visitation, custody, and expenses for experts. The results of these proceedings were that (1) temporary alimony was denied by the Domestic Relations Master and no exceptions were filed by Ms. Dietz, (2) the parties were awarded joint legal custody of the minor children, with the primary physical custody of Jillian granted to Ms. Dietz and ⁷³¹ the primary physical custody of Kevin granted to Mr. Dietz, (3) Mr. Dietz was required to pay child support to Ms. Dietz of $296.48 per month, (4) a visitation schedule was established, and (5) Ms. Dietz’s request for expenses for experts was denied. When the case came to trial on February 28, 1995, before the Honorable Robert E. Cadigan, the only issues remaining for resolution were the determination of a monetary award, if appropriate, and Ms. Dietz’s request for attorney’s fees. Ms. Dietz advised the trial court that she was not requesting an award of alimony.

The trial court took testimony and received evidence on 6 separate dates from February 1995 to February 1996, and issued an oral opinion on February 26, 1996. In his opinion, Judge Cadigan stated that the three-step procedure mandated by Md.Code (1984, 1991 RepLVol., 1996 Supp.), §§ 8-203 to 8-205 of the Family Law Article (“F.L.”), was followed for the determination of what property was marital property, the valuation of that property, and whether a monetary award was appropriate. Regarding Mr. Dietz’s interest in the Lang Valley Farm, the trial court found that there was no legally sufficient evidence to determine the value of any marital interest in the Lang Valley Farm even if such marital interest existed. Therefore, Mr. Dietz’s interest in the Lang Valley Farm was not considered in determining a monetary award.

On the other hand, Judge Cadigan held that Mr. Dietz’s entire interest in the Dietz Brothers Partnership was marital property. After considering the testimony from experts called by both parties, the trial court valued the partnership at $1,204,759, and Mr. Dietz’s fifty percent interest therein at $602,380. Finally, Judge Cadigan considered each of the factors set forth in F.L. § 8-205(b) and concluded that a fair and equitable monetary award to Ms. Dietz was 40.7% of the marital property, or $245,169, rounded to $245,000. Judge Cadigan declared that a judgment for $245,000 would be entered against Mr. Dietz, and he would be required to pay to ⁷³² Ms. Dietz $20,000 within 30 days of entry of judgment 1 and $1,250 per month for 15 years beginning May 1, 1996.

Ms. Dietz’s request for attorney’s fees was denied. The Judgment of Absolute Divorce was filed on April 1, 1996, and this appeal followed on May 1,1996. By check dated April 23, 1996, Mr. Dietz tendered to Ms. Dietz the first installment of $20,000 on the monetary award. Ms. Dietz endorsed the check and deposited the same on or about April 26, 1996.

When the first monthly installment of $1,250, due May 1, 1996, was not paid on time, Ms. Dietz filed a Petition for Contempt seeking to have Mr. Dietz held in Contempt of court for failing to pay that installment. The circuit court issued a Show Cause Order and scheduled a hearing. About the time of the issuance of the Show Cause Order, however, Mr. Dietz paid the May installment, and the hearing was cancelled. Thereafter, Mr. Dietz paid each monthly installment until March of 1997.

All of the monthly payments were accepted by Ms. Dietz. On March 24,1997, Mr. Dietz filed in this Court, as a part of his brief, a Motion to Dismiss Ms. Dietz’s appeal on the ground that, because Ms. Dietz, knowing the facts, voluntarily accepted benefits accruing to her under the Judgment of Absolute Divorce, she has waived any errors in that judgment and is estopped from maintaining her appeal. DISCUSSION It is a well established rule in Maryland that if a party, knowing the facts, voluntarily accepts the benefits accruing to him or her under a judgment, order, or decree, such acceptance operates as a waiver of any errors in the judgment, order, or decree and estops that party from maintaining an appeal therefrom. Dubin v. Mobile Land Corp., 250 Md. 349, 353 , 243 A.2d 585 (1968).

This principle of law (hereinafter referred to as the “general waiver rule”) has been applied by ⁷³³ this Court and the Court of Appeals in a variety of factual and legal settings. In Dubin , the Court of Appeals held that when a decree enjoined a mortgagee from instituting any foreclosure proceedings for any default allegedly occurring prior to a certain date, but allowed the mortgagee such expenses as may have been incurred in instituting foreclosure proceedings, the acceptance by the mortgagee of the payment of such expenses in accordance with the trial court’s decree precluded the mortgagee from challenging the decree on appeal. According to the Court, “[t]he knowledgeable acceptance ... of the benefit of any portion of the decree waived any alleged error in the entire decree and estopped the accepting party from challenging the decree on appeal.” Id. at 353 , 243 A.2d 585 ; see Suburban Development Corp. v. Perryman, 281 Md. 168 , 377 A.2d 1164 (1977) (purchaser at tax foreclosure sale forfeited his right to appellate review of the trial court’s decree authorizing redemption of the subject properties when the purchaser accepted the payment of the costs and expenses awarded to him under that decree). When a plaintiff agreed to the trial court’s reduction of a jury’s compensatory damage award, accepted Ml payment of the judgment entered on the reduced award, and had the judgment marked “Paid, Settled and Satisfied,” the plaintiff forfeited his right to appellate review of the trial court’s decision granting a judgment n.o.v. on the jury’s punitive damage award.

Kneas v. Hecht Co., 257 Md. 121 , 262 A.2d 518 (1970); see State, Use of Shipley v. Walker, 230 Md. 133 , 186 A.2d 472 (1962) (plaintiffs acceptance of the lesser amount upon the trial court’s order of remittitur is a bar to review); Turner v. Washington Suburban Sanitary Commission, 221 Md. 494 , 158 A.2d 125 (1960) (plaintiffs acceptance of the trial court’s order of remittitur precluded appellate review notwithstanding the plaintiffs reservation of the right to appeal the trial court’s failure to enter judgment for the amount of the jury verdict); Rispoli v. Jackson, 51 Md.App. 606 , 445 A.2d 349 (1982) (plaintiffs acceptance of payment from the defendant’s insurer of the jury award on all negligence counts ⁷³⁴ barred an appeal on the negligent entrustment count when the negligence and negligent entrustment counts all involved the same accident, injuries, and principal). The general waiver rule has been extended beyond the appellant’s acceptance of benefits under a court’s judgment, order, or decree to include the appellant’s “acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal.” Rocks v. Brosius, 241 Md. 612, 630 , 217 A.2d 531 (1966); see Kicherer v. Kicherer, 285 Md. 114 , 400 A.2d 1097 (1979) (co-guardians of a “disabled person” waived their respective rights to appeal the trial court’s decree appointing them as co-guardians, because each had accepted the decree by submitting his bond, thereby qualifying as, and becoming a guardian); Bowers v. Soper, 148 Md. 695 , 130 A. 330 (1925) (appellant lost his right to appeal when he sought the distribution of funds in accordance with an audit and attempted to appeal from the order finally ratifying the auditor’s report and account); Stewart v. McCaddin, 107 Md. 314 , 68 A. 571 (1908) (mortgagee’s appeal from the trial court’s order enjoining the foreclosure of the mortgage was dismissed because in the foreclosure proceedings subsequently instituted by the mortgagee, the mortgagee relied on the very order from which he appealed as authority for his prosecution of the subsequent foreclosure proceedings). The general waiver rule also has been applied to prevent appeals from consent judgments or decrees. Mercantile Trust Co. v. Schloss, 165 Md. 18 , 166 A. 599 (1933).

More recently, in Osztreicher v. Juanteguy, 338 Md. 528 , 659 A.2d 1278 (1995), the Court of Appeals applied the general waiver rule to a case in which the plaintiff-appellant elected not to go forward with his case when the trial court’s ruling effectively prevented the plaintiff from calling one of his expert witnesses. The Court of Appeals found that since the trial court’s ruling did not leave the plaintiff without a case to present, the plaintiffs failure to present a case constituted acquiescence in, if not consent to, the entry of an adverse ⁷³⁵ judgment. As a consequence, the plaintiff could not appeal and obtain review of the trial court’s ruling. 2 Id. at 535 , 659 A.2d 1278 . In sum, the essence of the general waiver rule, as stated by Judge Digges in Franzen v. Dubinok, 290 Md. 65 , 427 A.2d 1002 (1981), is “that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.” 3 Id. at 69 , 427 A.2d 1002 .

As is the case with most principles of law, there are exceptions to the general waiver rule. In Dubin v. Mobile Land Corp., supra, the Court of Appeals recognized one exception, as follows: If, however, the portion of the decree adjudicates a separate and distinct claim which benefits the appellants, unrelated to, or independent of, the unfavorable portion of the decree, then the acceptance of the benefit under the unrelated or independent portion of the decree will not result in a waiver of the right to appeal from the other unfavorable independent portion of the decree. 250 Md. at 353 , 243 A.2d 585 [citations omitted]. See Rispoli, 51 Md.App. at 611 , 445 A.2d 349 . In addition, the Court of Appeals has found that there is a significant difference between the receipt by a judgment creditor and the payment by a judgment debtor of an amount judicially determined to be due.

Franzen, 290 Md. at 69 , 427 A.2d 1002 . Thus, a judgment debtor’s payment of a judgment, unless tendered as a compromise or a settlement or under an agreement not to appeal, is an involuntary act, creating no bar to appellate review. Id. at 71 , 427 A.2d 1002 . Another exception has been carved out of the general waiver rule in cases involving awards under the Workers’ ⁷³⁶ Compensation Act.

In Bethlehem Steel Co. v. Mayo, 168 Md. 410 , 177 A. 910 (1935), it was held that the general waiver rule does not apply when the right to the benefits received is conceded by the opposite party and the language of the statute bars a stay of the payment of a compensation award because of an appeal. Id. at 414-15 , 177 A. 910 . The Court of Appeals reasoned that the purpose of the Act was “ ‘to insure speedy, as well as certain, relief in proper cases within the scope of its application. That humanitarian policy would be seriously hampered if the weekly payments of compensation awarded by the commission could be suspended because of an appeal.’ ” Id. at 414 , 177 A. 910 (quoting Branch v. Indemnity Ins.

Co., 156 Md. 482, 489 , 144 A. 696, 698 (1929)). In Bethlehem Steel, the employer conceded that the claimant was entitled to a 50% disability award granted by the Commission and made payments to the claimant in accordance with that award. The claimant accepted those payments, but appealed to the circuit court seeking an award for 100% disability. The Court of Appeals held that the claimant did not waive his right to appeal by accepting payments under the 50% conceded award.

In a later case, however, the Court of Appeals found that a claimant’s acceptance of benefits under a compensation award would preclude review under the general waiver rule if such review could result in a finding that the injury was not compensable. Smith v. Revere Copper and Brass, Inc., 196 Md. 160 , 76 A.2d 147 (1950). Finally, the Court of Appeals expanded this exception to the general waiver rule to include lump sum payments under a compensation award when the Commission converted the award into a lump sum. Petillo v. Stein, 184 Md. 644 , 42 A.2d 675