Dietz v. Dietz

RODOWSKY, Judge. In this divorce action the Court of Special Appeals dismissed an appeal seeking an increase in a monetary award because the appellant had accepted payments under the award as rendered. Dietz v. Dietz, 117 Md.App. 724 , 701 A.2d 1144 (1997). We shall reverse and remand for the reasons set forth below.

The issue before us is limited, so that the facts may be briefly stated. Nothing in our recital of facts is intended to indicate any view on the merits of the issues to be decided on remand. The respondent, William Albert Dietz (Mr. Dietz), his father, Fred Dietz, Sr., and one of his brothers, Fred Dietz, Jr., have been lifelong farmers, principally dairy farming. 1 Prior to 1979 they leased farmland or farmed for shares. The combined acreage on which their farming operations were conducted totaled approximately 700 acres.

On January 8, 1977, the petitioner, Andrea Lynn Dietz (Mrs. Dietz), and Mr. Dietz were married. Two children were born of the marriage. In February 1979 the fee simple title to 289 acres of farmland, known as the Lang Valley Farm (the Farm), was conveyed to Mr. Dietz, his father, and his brother. The purchase price of the Farm was $400,000, of which $100,000 was paid at the time of closing, and the three Dietzes, jointly and severally, secured the balance of the purchase price by ⁶⁸⁶ executing a take-back purchase money mortgage.

The parties to this action lived together in the house on the Farm until 1990. In 1984, when Fred Dietz, Sr. retired, Mr. Dietz and Fred Dietz, Jr. formed Dietz Brothers, a partnership (the Partnership) in which each brother had a fifty percent interest. The assets of the Partnership were livestock, crops, and equipment. Marital difficulties between Mr. and Mrs. Dietz led to trial separations and to a final separation in September 1992.

Mrs. Dietz filed for divorce in the Circuit Court for Baltimore County in October 1992. A number of evidentiary hearings were held. Both parties produced experts to value Mr. Dietz’s interest in the Partnership. The parties stipulated that the value of the Farm was $1,200,000 as of the date of separation, but there was a dispute as to what portion, if any, of Mr. Dietz’s interest in the Farm was marital property.

In February 1996 the circuit court rendered an oral opinion, determining that the Partnership was marital property and that the value of Mr. Dietz’s interest in the Partnership was $602,380. Based thereon, a monetary award of 40.7% or $245,169, rounded to $245,000, was granted to Mrs. Dietz. The court, however, denied any monetary award to Mrs. Dietz on her claim that Mr. Dietz’s interest in the Farm was marital property. Final judgment was entered April 1,1996.

The court ordered Mr. Dietz to pay $20,000 within thirty days of the entry of judgment, with the $225,000 balance of the monetary award to be paid in monthly installments of $1,250 over a fifteen-year period. By check dated April 23, 1996, Mr. Dietz paid Mrs. Dietz the installment of $20,000. Mrs. Dietz deposited the check on or about April 26, 1996. Her appeal to the Court of Special Appeals was noted on May 1, 1996.

When the first of the regular monthly installments of $1,250, due May 1, 1996, was not timely paid, Mrs. Dietz petitioned to have Mr. Dietz found ⁶⁸⁷ in contempt. After the circuit court issued a show cause order and scheduled a hearing, Mr. Dietz paid the May installment, and the hearing was canceled. Insofar as the record in this case reflects, Mr. Dietz subsequently has paid, and Mrs. Dietz has accepted, each monthly installment. In her brief to the Court of Special Appeals, Mrs. Dietz made two contentions: first, that the trial court erred in rejecting her claim that the monetary award should include an amount based on finding Mr. Dietz’s interest in the Farm to be marital property; and, second, that it was inequitable for the monetary award to be paid over a fifteen-year period.

Mr. Dietz moved to dismiss the appeal, arguing that Mrs. Dietz voluntarily had accepted the benefits of the judgment. Mr. Dietz did not cross-appeal. Mrs. Dietz’s right to have a monetary award based on the Partnership, the total amount of that award, and the rate at which that award is to be paid, are not questioned by Mr. Dietz on this appeal. The Court of Special Appeals dismissed the appeal.

That court began its analysis by stating categorically what it called “the general waiver rule,” which it described as follows: “It is a well established rale 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.” Dietz, 117 Md.App. at 730 , 701 A.2d at 1147 . The court then reviewed the Maryland cases and noted that there were a number of “exceptions,” e.g., “ ‘benefits ... unrelated to, or independent of, the unfavorable portion of the decree,’ ” id. at 733 , 701 A.2d at 1148 (quoting Dubin v. Mobile Land Corp., 250 Md. 349, 353 , 243 A.2d 585, 587 (1968), as quoted in Rispoli v. Jackson, 51 Md.App. 606, 611 , 445 A.2d 349, 351 (1982)); awards in workers’ compensation cases, Dietz, 117 Md.App. at 733-34 , 701 A.2d at 1148-49 ; and attempts to obtain an increase in alimony while accepting the payments ordered by the court, id. at 734-35 , 701 A.2d at 1149 (citing ⁶⁸⁸ Lewis v. Lewis, 219 Md. 313 , 149 A.2d 403 (1959)). The Court of Special Appeals concluded that the reason for the “exception” from the “general waiver rule” in Lewis was “because the benefits accruing to the appellant under [the] trial court’s award of alimony ‘provide necessary support until the final adjudication of the case.’ ” Dietz, 117 Md.App. at 739 , 701 A.2d at 1151 (quoting from Lewis, 219 Md. at 317 , 149 A.2d at 403 ) (emphasis added by Court of Special Appeals). Reasoning that a monetary award is not a form of support, and because Mrs. Dietz was seeking an increase in the monetary award, the Court of Special Appeals concluded that the Lems “exception” did not apply, and the court dismissed the appeal.

We granted Mrs. Dietz’s petition for certiorari which is limited to whether her appeal was properly dismissed. The Bruce A. Kaufman Center for Family Law filed an amicus curiae brief in support of Mrs. Dietz’s position. I Our analysis begins with the principle that a party who is aggrieved by a final judgment may perfect an appeal to obtain review of the judgment. Looking at the same concept from a different perspective in Baer v. Robbins, 117 Md. 213 , 83 A. 341 (1912), we said that “[w]hile it is the general rule that an appeal cannot be taken from a judgment by a party in whose favor it was rendered, yet an exception to this rule is recognized in cases where the judgment ‘is for less than the amount or short of the right claimed.’ ” Id. at 225 , 83 A. at 343 (citation omitted).

The Court of Special Appeals used “general waiver rule” to refer to a limitation on the right to appeal that part of a judgment of which a party is aggrieved. Dietz, 117 Md.App. at 730 , 701 A.2d at 1147 . A waiver ordinarily is the voluntary relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances. Government Employees Ins.

Co. v. Group Hospitalization Med. Serv., Inc., 322 Md. 645, 650 , 589 A.2d 464 , 466 ⁶⁸⁹ (1991) (citing Food Fair Stares, Inc. v. Blumberg, 234 Md. 521, 531, 200 A.2d 166, 172 (1964)). This Court’s explanations of the limitation on the right to appeal have not been entirely uniform. For example, earlier cases have spoken of waiver, see Farmers’ Bank v. Thomas, 37 Md. 246, 258 (1873), describing Lanahan v. Latrobe, 7 Md. 268 (1854); 2 election of remedies, see Lanahan, 7 Md. at 272-73 ; 3 and splitting of a decree.

Silverberg v. Silverberg, 148 Md. 682 , 130 A. 325 (1925). 4 Our most recent cases have repeated the description of the limitation on the right to appeal that is found in Rocks v. Brosius, 241 Md. 612, 630 , 217 A.2d 531, 541 (1966), namely, “[t]he right to appeal may be lost by 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.” See Osztreicher v. Juanteguy, 338 Md. 528, 534 , 659 A.2d 1278, 1281 (1995); Franzen v. Dubinok, 290 Md. 65, 68 , 427 A.2d 1002, 1004 (1981). We shall call the limitation “the acquiescence rule.” In Rocks , it was unnecessary to apply the acquiescence rule, but the two later decisions illustrate applications of it. Osztreicher involved a judgment entered against the plaintiff after ⁶⁹⁰ the plaintiffs attorney declined to produce evidence. The trial court had precluded a witness for the plaintiff from testifying, a ruling with which plaintiffs counsel disagreed.

Although a second witness was available to give substantially the same evidence that would have been given by the precluded witness, that would have sufficed to avoid a judgment on motion for the defendant, and that was not barred by the ruling complained of, plaintiffs counsel voluntarily left the record in a posture that required judgment for the defendant, thereby clearly acquiescing in that judgment. In Franzen we said that the payment of a judgment by a judgment debtor would not normally be treated as acquiescence in the judgment because the coercive aspects of the judgment usually render the payment involuntary. Franzen, 290 Md. at 71-72 , 427 A.2d at 1005 . The clearest example of acquiescence in a judgment is found in the remittitur cases.

There the trial court rules that it will grant a new trial unless the plaintiff consents to a specified reduction in the verdict. If the reduction is accepted it results in a judgment for the plaintiff in the lesser amount. In these cases the plaintiff chooses to have the verdict and judgment reduced rather than retry the case. Because of this acquiescence, an appeal from the judgment by the plaintiff ordinarily must be dismissed.

See Kneas v. Hecht Co., 257 Md. 121 , 262 A.2d 518 (1970); State use of Shipley v. Walker, 230 Md. 133 , 186 A.2d 472 (1962); Turner v. Washington Suburban Sanitary Comm’n, 221 Md. 494 , 158 A.2d 125 (1960). Dismissal in the remittitur cases of an appeal is very similar to the dismissal of an appeal under the rule that no appeal lies from a consent judgment. See, e.g., Mercantile Trust Co. of Baltimore v. Schloss, 165 Md. 18, 24 , 166 A. 599, 601-02 (1933). A frequently cited acquiescence case is Bowers v. Soper, 148 Md. 695 , 130 A. 330 (1925).

It arose out of the sale of realty by trustees in a partition proceeding. In an earlier appeal, Shirk v. Soper, 144 Md. 269 , 124 A. 911 (1923), Shirk, a part owner of the property, had obtained a reversal, based on inadequacy of price, of the order ratifying the sale, but in that decision this Court stated that, because there had been no ⁶⁹¹ appeal bond filed, the reversal would not affect any rights which the purchaser may have acquired in the property. On remand, Shirk requested the trustees to distribute the “money ‘as audited,’ and ... the trustees accordingly disbursed the funds.” Bowers, 148 Md. at 697 , 130 A. at 331 . Shirk then sought to appeal from the denial of his exceptions to the audit that “were based in part upon the theory that the distribution of the funds would preclude any action by the trustees in derogation of the sale which they had reported and which the court below had approved.” Id. at 699 , 130 A. at 331.

Thus, not only had Shirk “waived his right of appeal,” id. at 698, 130 A. at 331, or acquiesced in the judgment, but the reliance of the trustee on Shirk’s request in making distribution prevented Shirk “[ujpon the plainest principles of estoppel ... from successfully disputing a disposition of funds ... made with his consent.” Id. at 697, 130 A. at 331. Requiring special attention are certain early decisions of this Court, dealing with equity’s administration of a fund generated by the judicial sale of property, because they can be read as presenting perhaps the strictest applications of the acquiescence rule in our reports. In these cases a creditor who claims a lien on assets of the estate challenges the court’s dealing with the assets as if there were no lien, but the creditor also files a claim for a distributive share. See Gottschalk v. Smith, 74 Md. 560 , 22 A. 401 (1891); Horsey v. Chew, 65 Md. 555 , 5 A. 466 (1886); Farmers’ Bank v. Thomas, 37 Md. 246 (1873).

In these cases the creditor is in effect saying, “I am entitled to have my lien fully enforced out of the assets subject to the lien, but if I do not prevail on that argument, then I am still a general creditor and entitled to participate in the distribution.” This Court, however, concluded that the creditors lost their rights to challenge the courts’ rulings on their particular liens by filing claims for a distributive share. See Horsey, 65 Md. at 557 , 5 A. at 467 . Thus, the rationale of these cases appears to be out of harmony with modern practice which recognizes claims in the alternative. See Maryland Rule 2-303(c).

More recently we have cautioned that the acquiescence rule “is a severe one, which it is now generally ⁶⁹² held should not be extended.”