Merritts v. Merritts

Lowe, J., delivered the opinion of the Court. This case is a striking example of the need to enforce rigidly the rule that, subject to Md. Cts. & Jud. Proc. Code Ann. §§ 12-302 and 12-303, et al., appeals may be taken only ²⁰¹ from final judgments.

Eastgate Associates v. Apper, 276 Md. 698 (1976). On February 4, 1981, the Circuit Court for Prince George’s County entered what it captioned as a "Final Decree of Divorce A Vinculo Matrimonii” divorcing appellant, providing for alimony and declaring as marital property the marital home, a lot in St. Mary’s County, a house in Washington, D.C., and a civil service pension, in addition to an attorney’s fee award of $3,000 to the wife’s attorney. The decree then declared that the court would "retain jurisdiction of this matter for a reasonable time for the purpose of entering further orders pursuant to the oral opinion of this Court rendered on November 26, 1980.” Appellant (wife) appealed in banc, i.e., to the three judge panel of that court pursuant to Md. Const. Art. IV, § 22.

The appeal resulted in an affirmance on most of what appear to have been the ten issues reserved as error but, according to the brief, did provide the wife some relief in modifying an alimony provision. Based upon that remand, and upon its own reservation concerning the details of effecting the distribution of marital property, on November 23, 1981, the trial court issued an order directing sale in lieu of partition of the marital home and of the St. Mary’s County lot, ordering the equal division of proceeds. The court also ordered a monetary "award and a judgment” against appellant of $62,000 less one-half of the amount due under an existing lien. The matter was referred to an auditor to determine that balance and the final figure of the monetary award.

The order then provided alimony in the amount suggested by the in banc remand. The auditor reported on March 1, 1982, to which report no exceptions were filed. On April 13, 1982, however, appellant moved to modify the original decree as concluded following the remand, because she had in the interim voluntarily sold the D.C. property (which was titled in her name) for a thousand dollars less than the appraised value and had incurred certain sales costs. She had also apparently elected to take back certain promissory notes as part of the purchase price and sought, therefore, to modify the decree by having ²⁰² appellee absorb a portion of her loss and costs and further to restrain him from executing upon his monetary award judgment until the promissory notes came due.

Appellee filed a motion ne recipiatur to the motion to modify. In the meantime, within four months of the in banc appeal opinion, appellant moved "before the court en banc” that it award her counsel fees and costs arising out of the in banc appeal. Citing Sewell v. Sewell, 218 Md. 63, 73 (1958), for the principle that application for counsel fees for an appeal be made first to the trial court, the in banc court, on June 9, 1982, "remanded [the case] to the Chancellor for ruling on counsel fees and costs arising out of the En Banc appeal.” On June 15, 1982 the trial court entered an order granting appellee’s motion ne recipiatur to appellant’s motion to modify the decree; and, on June 24, 1982, the court denied the remanded petition for fees and costs incurred in the in banc appeal. Appellant would now have us decide the propriety of those actions by the trial court, however, we find that we are divested of jurisdiction to entertain the appeal of either issue by this appellant.

The questions appellant asks are: "Did the lower court err in denying out of hand the Appellant’s request for attorney’s fees and transcript expenses in prosecuting the en banc appeal?” and "Did the lower court err in granting the Motion Ne Recipiatur as to the Motion to Modify its order of November 23, 1981, thereby failing to hear and exercise its descretion [sic] with regard to the Motion to Modify?” The "order of November 23,1981” which appellant sought to modify, was itself a compliance with the modification ordered by the in banc court. From the order’s preamble, however, it appears that the chancellor, upon request of the parties, used the opportunity of revising his original decree ²⁰³ conforming it to the in banc order, also to dispose of certain marital properties, and to set forth to the husband a monetary award ($62,000), less one-half of the principal and interest of a lien against an out-of-state property in the wife’s name, that he had determined to be marital property. The determination of that precise balance was referred to the auditor. Because of this reference