Williams v. Williams

ROBERT M. BELL, Judge. On this appeal and cross-appeal from judgments of the Circuit Court for Prince George’s County, we will hold that Maryland Fam.Law Code Ann. § 8-203 is not jurisdictional, i.e. does not deprive the trial court of authority to render a valid judgment. But, because we also hold that the trial judge committed error in the application of the provisions of the Property Disposition and Annulment in Divorce Act, Maryland Fam.Law Code Ann. § 8-201 et seq., we nevertheless will reverse in part the judgment thus entered and remand to the trial court for further proceedings consistent with this opinion. Robert P. Williams, appellant/cross-appellee, (husband) and Cleva G. Williams, appellee/cross-appellant (wife), were married in September 1965.

They finally separated in 1979. Shortly after their separation, pursuant to an agreement entered into prior to the separation, the marital home was sold and the proceeds were divided between the parties. Subsequently, on November 9, 1984, the wife filed in the Circuit Court for Prince George’s County, a complaint for divorce and other relief. The husband responded to the ²⁶ complaint and filed a cross-complaint for divorce.

Following trial on the complaint and cross-complaint in November, 1985, the trial judge granted appellant an absolute divorce on his cross-complaint and reserved the marital property issues for later decision. The order for absolute divorce was signed on November 27, 1985 and filed on November 29. In compliance with the trial judge’s request, made at the conclusion of the trial on November 8, 1985, the parties submitted proposed findings of fact, conclusions of law and judgment to the court. Thereafter, concerned that determination and disposition of the marital property would not be made within 90 days as required by § 8-203, the parties jointly moved to extend the time for making the determination until 30 days after February 25, 1986, the date that they both agreed was the 90th day.

A consent order to that effect was signed by the trial judge on February 20, 1986. On June 25, 1986, the trial judge filed his Findings of Fact and Conclusions of Law, in which he determined the marital property and its value. He also considered and denied the wife’s request for alimony and ordered: the sale of property owned by the parties in Florida and the division of the proceeds; the entry of judgment in favor of the wife in the amount of $55,000. as a monetary award; and that the husband pay $4,000. as a contribution to the wife’s attorney’s fees. The consent order of February 20, 1986 was also filed on June 25, along with three other orders of court, dated, respectively, March 26, 1986, April 30, 1986 and May 29, 1986, extending “the time in which marital property and other issues may be determined.” The latter three orders purported to have been passed “upon consideration of the parties’ joint request”, however, the record does not reflect any such request and the parties deny making such a request.

Both parties were dissatisfied with the court’s judgment; thus, both appealed. While the wife’s appeal contests only ²⁷ the denial of alimony, the husband, finding much more to complain about, presents eight questions for resolution: 1. Did the trial judge lose jurisdiction to pass a marital award under Family Law Article § 8-203 when said award was entered 89 days after the expiration of the time to which the parties had given their consent? 2. Was the chancellor clearly erroneous in not valuing or passing any award concerning the appellee’s retirement plan? 3.

Was the chancellor clearly erroneous in including as marital property certain accounts which, by the evidence, no longer existed, and in failing to properly value those accounts that did exist? 4. Was the chancellor clearly erroneous in failing to designate as non-marital property monies which the appellant had contributed toward the purchase of the parties’ former marital home? 5. Was the chancellor clearly erroneous in valuing the appellant’s Keough Plan in the same amount as existed in the account at the time of trial, without regard to the tax penalty consequences if the money had to be withdrawn? 6. Was the chancellor clearly erroneous in passing a lump sum judgment without regard to the appellant’s ability to pay said judgment or any evidence of his ability to borrow money by which to pay said judgment? 7.

Was the chancellor clearly erroneous in not considering appellant’s obligations for monies borrowed to build his present home, which money is still owed? 8. Was the chancellor clearly erroneous in awarding attorney’s fees given the the state of the evidence regarding that matter? 1 The threshold issue is of course the validity and vitality of the lower court’s judgment, which in turn, depends upon ²⁸ that court’s jurisdiction to pass an order effectuating its findings of fact and conclusions of law. Its resolution requires that we once again revisit § 8-203, the successor to Maryland Courts and Jud. Proceedings Code Ann. § 3-6A-05(a), which has been considered and construed by the Court of Appeals, Brodak v. Brodak, 294 Md. 10 , 447 A.2d 847 (1982), and by this Court on three occasions: Russell v. Russell, 50 Md.App. 185 , 436 A.2d 524 (1981); Zorich v. Zorich, 63 Md.App. 710 , 493 A.2d 1096 (1985); Ticer v. Ticer, 63 Md.App. 729 , 493 A.2d 1105 (1985).

When Russell was decided, § 3-6A-05(a) provided: In granting an absolute divorce or annulment, or at anytime within 90 days thereafter, if in its decree granting the divorce of annulment, 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 at issue. In Russell , the court reserved in its divorce decree the issue of monetary award; however, the parties agreed to extend the time for making the determination to beyond the 90 day period. The court’s decree designating marital property was filed after the agreed period had expired. We held that the court lost jurisdiction to make the determination and that the determination made was a nullity since “the parties could not confer jurisdiction by consent where the jurisdiction did not exist____” 50 Md.App. at 187 , 436 A.2d 524 .

This same section was before the Court of Appeals in Brodak . There, the decree designating marital property was filed on the 91st day after the divorce decree was filed. The husband, relying on Russell , argued that the court lost jurisdiction to make a monetary award. The Brodak Court rejected the Russell interpretation, specifically stating “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.” 294 Md. at 14 , 447 A.2d 847 .

Instead, the Court, citing Stewart v. State, 287 Md. 524 , 413 A.2d 1337 (1980) and Pulley v. State, 287 Md. 406 , 412 A.2d 1244 ²⁹ (1980), held that the circuit court was not deprived of subject matter jurisdiction to make a marital award because, 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 anytime within 90 days thereafter [under certain circumstances] the court shall determine which property is marital property... .” 294 Md. at 16 , 447 A.2d 847 . Significantly, in support of its position, the Court discussed cases in which it had held that failure of a court to render a decision within the time specified in the Maryland Constitution did not deprive the court of jurisdiction.

See e.g. McCall’s Ferry Co. v. Price, 108 Md. 96 , 69 A. 832 (1908); Snyder v. Cearfoss, 186 Md. 360 , 46 A.2d 607 (1946). Although not the critical issue in the case, 294 Md. at 17 , 447 A.2d 847 the Court concluded that § 3-6A-05(a) was mandatory and, for that reason, Russell “was correctly decided because the parties there were at fault.” 294 Md. at 24 , 447 A.2d 847 . The Court ended its discussion of the 90 day period by making the point that: When a statute of limitations specifies that a proceeding must be brought within a certain period of time, it is the failure of the party initiating the proceeding to act in that time frame which bars the action.

When a rule or statute says that an appeal must be filed within a stated period of time and the appeal is dismissed for failure to comply, it is the party entering the appeal who is guilty of delay. The position that the husband would have us take would be to impose a sanction on the parties for the failure of the arbiter of the controversy, in this instance the circuit court, to act within the period prescribed by statute. ³⁰ Since it is the husband, not the wife, who is dissatisfied with the chancellor’s award, the practical effect were we to adopt the husband’s position would be to place the sanction for the chancellor’s failure to act within the specified time upon the prevailing party, the wife. We think that result would be wrong. Absent a mandate from the General Assembly similar to that in Scherr [v. Braun ], 211 Md. 553 [ 128 A.2d 388 (1957) ], in light of the peculiar facts and circumstances there present, we decline to impose such a sanction here. 1 In Zorich , the trial court’s decree granting the wife a divorce reserved, for the statutory period, issues related to marital property, alimony and counsel fees.

Following a hearing, held within the statutory period, the trial judge orally announced his findings of fact and resolved the marital property and related issues. The supplemental decree embodying the oral opinion was not filed, however, until 22 days after expiration of the 90 day period. The delay, was the result of disagreement between counsel, which arose prior to the expiration of the period, concerning the provisions of the supplemental decree as drafted, at the court’s request, by the wife’s counsel. In response to Russell, § 3-6A-05(a) 2 was amended by Acts 1982 Ch. 294 so as to permit the court, with the consent of the parties and within the time reserved, to extend the time for deter ³¹ mining marital property.

The parties had not consented to an extension. Relying on Brodak , this Court held that “It is neither the lapse of time, nor the mandatory nature of § 3-6A-05(a)(l) which is controlling; rather it is the responsibility for the delay.” 63 Md.App. at 715-16, 493 A.2d 1096 . Concluding that the trial judge’s responsibility for filing the decree designating marital property could not be shifted to a party by the direction to draft or prepare the decree, we refused to place the burden of the court’s failure to act within the prescribed time on the prevailing party. The power of the court to pass an order designating marital property and resolving marital property issues after the expiration of the statutory period, or any extension thereof, was once again before this Court in Ticer .

There, the court’s decree of divorce retained jurisdiction to determine the marital property of the parties for the statutory period. No determination was made by the court, and none was requested by the parties during the period. Approximately 30 days after the period expired, however, the wife requested that the matter be set for a hearing pursuant to the court’s reservation. More than two years later, the parties consented in open court to the referral of the issue of “division of personal property” under the Marital Property Act to an auditor, who subsequently recommended that the wife’s claim against the husband’s pension benefits be denied.

The recommendation flowed from the auditor’s conclusion that “since the parties [had] failed to designate [the pension] as part of the [marital property]” within the statutory period, the court lost jurisdiction. 63 Md.App. at 731, 493 A.2d 1105 . As a threshold matter, this Court resolved the issue whether § 8-203, 3 a recodification of § 3-6A-05(a), which ³² became effective October 1, 1984, or § 3-6A-05(a) controlled the resolution of the dispute. We concluded that on the facts of that case, the result was the same under either version. We reiterated that “Brodak established a test of fault”, 63 Md.App. at 734, 493 A.2d 1105 , and that “where no determination is made within 90 days and the fault does not lie solely with the arbiter, imposition of the sanction that prohibits the court from acting is proper.” 63 Md.App. at 735-36, 493 A.2d 1105 .

We noted that the wife did not even move for a hearing until after the 90th day from the granting of the divorce. Despite the clarity of Brodak’s holding and the husband’s apparent recognition of that holding, the thrust of the husband’s argument nevertheless is that the trial court lost jurisdiction when it did not designate marital property within the statutory period, as extended by the consent of the parties. He even suggests that the viability of the Brodak “fault” test is questionable “after the Ticer case ... and more importantly, after the action of the Maryland legislature in passing as emergency legislation its new language for 3-6A-05, now codified in 8-203.” Moreover, the husband asserts that, assuming the continued viability of the fault test, jurisdiction is still lost because: it was incumbent upon the parties to request an additional extension, or one of the parties to request an additional extension of time and garner the other party’s consent to ³³ that extension. Since this was not done, neither of the parties can now say they are without