Blake v. Blake , 341 Md. 326 ( 1996 )

RODOWSKY, Judge.

We granted certiorari on our own motion and prior to consideration of this case by the Court of Special Appeals in order to decide whether personal injury settlement proceeds, acquired during marriage, constitute marital property. The appellee has moved to dismiss the appeal on the ground that the notice of appeal was not timely filed. For the reasons explained below we grant the appellee’s motion, and, consequently, we do not reach the merits.

Clifton Avon Blake and Luvenilde Margott Blake were married on November 8, 1976. They separated in January 1987. In late 1990 Mr. Blake filed a complaint for limited divorce, for sole custody of the two minor children of the marriage, and for an order charging both Mr. and Mrs. Blake with the support of the children.

Mrs. Blake answered and filed a counterclaim seeking an absolute divorce, sole custody of the children, both pendente lite and permanent child support and alimony, and counsel fees.

Based on the report of a master, the circuit court in September 1991 ordered Mr. Blake to pay, pendente lite, $200 per month in alimony and $350 per month in child support, as well as the monthly payments on the mortgage secured by the residential property occupied by Mrs. Blake and the children.

About one and one-quarter years later, while the two complaints for divorce remained pending, Mrs. Blake petitioned the court to find Mr. Blake in contempt for failure to pay alimony and child support. She averred that as of January 8, 1993 the arrearages were $4,950.

By an amended counterclaim filed February 5, 1993, Mrs. Blake renewed the claims asserted in her original counterclaim and added additional claims, including a claim for an equitable award of marital property.

The remaining relevant procedural steps in the litigation are hereinafter set forth in three columns. The column headed “Date” sets forth the effective date of a procedural step. The column headed “Divorce” refers to procedural steps leading to adjudication of the issues raised by the complaint and amended counterclaim in the divorce action. The column headed “Contempt” relates to the procedural steps involved in resolving the petition for contempt to enforce the order awarding alimony and child support pendente lite.

Date Divorce Contempt

2/10/93 Mr. Blake answers the petition for contempt and, inter alia, seeks a credit against the claimed arrearage for $3,000 allegedly given to Mrs. Blake for a trip to her native Chile.

5/17 & Trial before circuit court. 5/18/93

6/28/93 Master’s report recommends that the contempt petition be dismissed if Mr. Blake resumes the previously ordered monthly payments and if, within 45 days of the court order adopting the master’s recommendations, Mr. Blake pays $4,776.50 of arrearages.

Date Divorce Contempt

7/9/93 Mr. Blake files exceptions to the report challenging the failure to give him • credit for $3,000.

7/30/93 Circuit court judge files opinion announcing decision on all claims asserted in both complaints, except Mrs. Blake’s claim for counsel fees, on which the opinion is silent. Court directs counsel for Mr. Blake to prepare order.

8/9/93 Order, drafted in accordance with opinion and signed by judge on August 4,1993 is docketed. Entry reads: “Judgment granting the parties an absolute divorce, etc, fd.”

8/25/93 Order of court dated 8/20/93 is docketed, dismissing Mr. Blake’s exceptions to the master’s report for lack of timeliness.

8/27/93 Mrs. Blake’s motion to revise the judgment is filed. The motion argues, inter alia, that Mrs. Blake’s claim for a share of the funds remaining from the settlement of Mr. Blake’s personal injury claim should not have been denied and that Mrs. Blake should be awarded attorney’s fees.

10/7/93 “Pendente lite order nunc pro tunc,” dated October 1,1993 is docketed. It directs the payment of pendente lite alimony

Date Divorce Contempt

and child support, in the previously ordered amounts, dating from June 28, 1993. The order also provides that the arrearages of $4,776.50 be paid within 45 days “of this Order.”

2/14/94 Clerk enters a “court minute” on file jacket and makes docket entry recording that Mrs. Blake’s motion to revise Judgment has been denied.

4/12/94 Notice is sent by clerk advising parties that the motion to revise judgment had been denied.

5/11/94 Mrs. Blake’s notice of appeal is filed.

In Ms motion to dismiss Mr. Blake points out that Mrs. Blake’s motion to revise the judgment was filed more than ten days after the judgment was entered on August 9. See Maryland Rule 2—601(b). Accordingly, the motion must be treated as a thirty day motion to revise filed pursuant to Maryland Rule 2-535. A motion filed under that rule more than ten days after the entry of judgment does not stop the running of the thirty day appeal period. See Md.Rule 8-202(c); Falcinelli v. Cardascia, 339 Md. 414, 421-22, 430-31, 663 A.2d 1256, 1259-60, 1263-64 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 320 Md. 192, 200, 577 A.2d 34, 38 (1990).

At oral argument Mrs. Blake suggested that the judgment in the divorce action did not become final until Mr. Blake’s exceptions to the master’s réport were dismissed on August 25, 1993, so that the motion to revise, when filed on August 27, was a ten day motion, the disposition of which would trigger the running of a new thirty day appeal period. We disagree. The claim by Mrs. Blake for pendente lite alimony and support had been determined by the September 1991 order. The exceptions dismissed on August 25, 1993 related to the attempted enforcement by contempt of that pendente lite order. The fact that exceptions to the master’s report in the contempt proceeding were pending and undecided on August 9, 1993 when the judgment in the divorce action was docketed did not prevent that judgment from being final on that date.

“A contempt proceeding, even though it may grow out of or be associated with another proceeding, is ordinarily regarded as a collateral or separate action from the underlying case and as separately appealable, with appellate review normally limited to the contempt order itself. Because the underlying proceeding and the contempt proceeding are usually regarded as separate actions, and not simply as separate issues or claims in the same action, it follows that a judgment terminating the underlying action is final and appealable despite the fact that the associated contempt proceeding is still pending in the trial court.”

Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md. 473, 483-84, 494 A.2d 940, 945 (1985) (citations omitted).

The judgment of August 9, 1993, however, was silent with respect to the claim for counsel fees asserted by Mrs. Blake in her original and in her amended counterclaims. The circuit court had the discretionary power to award counsel fees pursuant to Maryland Code (1984, 1991 Repl-VoL, 1995 Cum.Supp.), §§ 11-110 and 12-103 of the Family Law Article (FL).¹ The question that then arises is whether the absence of any determination of the claim for counsel fees deprives the August 9 judgment of finality. Although this is an issue on which we have not previously directly passed, we have eonsidered the relationship between counsel fees and judgment finality in other contexts.

Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980), made plain that family law actions are embraced by the requirement for finality in multiple claims cases, now Md.Rule 2-602, whereby all of the claims as to all of the parties must be adjudicated, absent certification. We held in Pappas that

“it is not necessary for us to determine whether the reservation of the amount of counsel fees or the reservation of the amount of alimony and support without more would render the decree other than final. It is sufficient for our purposes to hold that where the issue of property division, the amount of counsel fees, and the amount of alimony and support remain to be determined, the judgment was not final.”

Id. at 463, 413 A.2d at 553.

A claim for attorney’s fees, awardable pursuant to 42 U.S.C. § 1988, was presented in County Executive of Prince George’s County v. Doe, 300 Md. 445, 479 A.2d 352 (1984) (Doe II). The claim for attorney’s fees was not asserted until after this Court had affirmed the grant of relief on the plaintiffs claim in County Executive of Prince George’s County v. Doe, 291 Md. 676, 436 A.2d 459 (1981) (Doe I). We explained in Doe II that

“under 42 U.S.C. § 1988, a claim for an attorney’s fee, while an integral part of the remedy under 42 U.S.C. § 1983, is viewed as a collateral matter from the § 1983 action; thus the claim for an attorney’s fee may be brought following a final judgment in a § 1983 action.”

300 Md. at 451 n. 4, 479 A.2d at 355 n. 4.

We again considered counsel fees under 42 U.S.C. § 1988 in Maryland Nat’l Capital Park & Planning Comm’n v. Crawford, 307 Md. 1, 511 A.2d 1079 (1986), where, in an action founded on 42 U.S.C. § 1983, a circuit court had awarded the successful plaintiff attorney’s fees for work in connection with an appeal to the Court of Special Appeals. In Crawford we quoted from Doe II the passage above set forth. 307 Md. at 38-39, 511 A.2d at 1098. After reviewing the cases we concluded that “they generally take the position that trial courts may award fees despite the fact that an appeal has been taken from the judgment on the merits and is pending.” Id. at 40, 511 A.2d at 1099.

The Magnuson-Moss Warranty Federal Trade Commission Improvement Act provides for awarding attorney’s fees. 15 U.S.C. § 2310(d)(2). In Larche v. Car Wholesalers, Inc., 80 Md.App. 322, 562 A.2d 1305 (1989), a plaintiff had obtained judgment on a jury verdict on claims including one under the Magnuson-Moss Act. When the plaintiff appealed from a judgment in favor of the defendant on the plaintiffs claim for punitive damages, the defendant moved to dismiss the appeal as premature because the claim for counsel fees under the federal statute had not been adjudicated by the trial court. Id. at 325, 562 A.2d at 1307. Citing Doe and Crawford, the Court of Special Appeals held that the judgment was nevertheless final, by analogy to v claim for counsel fees in a § 1983 action. Larche, 80 Md.App. at 326-28, 562 A.2d at 1307-08.

With respect to an award of counsel fees imposed as a sanction under Md.Rule 1-341, this Court has held that the award is not appealable, prior to final judgment on the merits, either as an order to pay money, Simmons v. Perkins, 302 Md. 232, 486 A.2d 1192 (1985), or under the collateral order doctrine, Yamaner v. Orkin, 310 Md. 321, 529 A.2d 361 (1987). After final judgment on the merits we have reviewed Rule 1-341 sanctions imposed in the course of the proceedings, Yamaner v. Orkin, 313 Md. 508, 545 A.2d 1345 (1988), and we have reviewed Rule 1-341 sanctions imposed after judgment on the merits was entered, Newman v. Reilly, 314 Md. 364, 550 A.2d 959 (1988).

The Court of Special Appeals has considered the relationship between Rule 1-341 sanctions and finality in a procedural framework which is substantially the framework presented here. Johnson v. Wright, 92 Md.App. 179, 607 A.2d 103 (1992). Johnson was a multiple parties and claims action. Id. at 180, 607 A.2d at 103-04. The trial court, by dismissing a counterclaim on July 12, 1991, adjudicated the last, unresolved claim on the merits. Id. at 181, 607 A.2d at 104. At that time a claim for Rule 1-341 counsel fees was pending, which the court denied on July 16, 1991. Id. Plaintiffs, aggrieved by the rulings on the merits, noted their appeal August 14, 1991 and, thus, more than thirty days after the dismissal of the counterclaim but less than thirty days after adjudication of the motion for fees. Id. The Court of Special Appeals dismissed the appeal on the authority of Larche and Crawford. Johnson, 92 Md.App. at 181-82, 607 A.2d at 104-05. “The pendency of the collateral motion for attorneys’ fees did not stay or enlarge the time for taking an appeal from the judgment.” Id. at 182, 607 A.2d at 105.

The precise issue before us is whether a claim for counsel fees under FL §§ 11-110 and 12-103 should be treated as part of the claim for relief on the merits, so that the August 9, 1993 judgment in the Blakes’ divorce action was not then final, or whether, by analogy to the fee shifting provisions of the federal Civil Rights Acts, the Magnuson-Moss Act, and Rule 1-341, the fees requested by Mrs. Blake are considered to be collateral, despite the remedial aspects of the authorizing statutes. A guidepost to resolving this issue is found in dicta in Newman, 314 Md. 364, 550 A.2d 959. That was a medical malpractice action in which the physician unsuccessfully argued that the chairperson of a Health Claims Arbitration panel, acting alone, had authority to impose a Rule 1-341 sanction. Id. at 378-79, 550 A.2d at 966-67. In answer to a .contention that, absent such power, the institution of a circuit court action following a panel decision on the merits would oust the panel of jurisdiction to consider a pending sanctions motion, we said:

“If this problem is governed by analogy to actions in courts, we simply observe that, under the majority rule, an appeal from a trial court judgment on the merits does not deprive the judgment-rendering court of jurisdiction to consider an award of counsel fees.”

Newman, 314 Md. at 379-80 n. 12, 550 A.2d at 967 n. 12 (citations omitted).

Our lead citation in Newman for the above-quoted proposition was Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). In Budinich the Court affirmed the dismissal by a United States Court of Appeals of an appeal from a judgment on the merits in an action for employment compensation that had been removed from a Colorado state court to the United States District Court for the District of Colorado, based on diversity of citizenship. Id. at 197, 203, 108 S.Ct. at 1719, 1722. A Colorado statute provided for counsel fees in employment compensation cases. Id. at 197, 108 S.Ct. at 1719. Budinich had obtained a jury verdict, the amount of which was unsatisfactory. Id. Budinich’s new trial motions were denied, and approximately three months thereafter the district court awarded attorney’s fees. Id. at 197-98, 108 S.Ct. at 1719. Budinich then appealed. Id. at 198, 108 S.Ct. at 1719. The Supreme Court held that there had been a “final decision” under 28 U.S.C. § 1291 when the merits had been resolved by denial of the new trial motions. Id. at 202-03, 108 S.Ct. at 1722.

In a unanimous opinion, the Court applied the rationale set forth below:

“[The] practical approach to the matter suggests that what is of importance here is not preservation of conceptual consistency in the status of a particular fee authorization as ‘merits’ or ‘nonmerits,’ but rather preservation of operational consistency and predictability in the overall application of § 1291. This requires, we think, a uniform rule that an unresolved issue of attorney’s fees for the litigation in question does not prevent judgment on the merits from being final.

“For all practical purposes an appeal of merits-without-attorney’s-fees when there is a statute deeming the attorney’s fees to be part of the merits is no more harmful to the trial process than an appeal of merits-without-attorney’s-fees when there is no such statute. That ‘deeming’ does not render the appeal more disruptive of ongoing proceedings, more likely to eliminate a trial judge’s opportunity for reconsideration, more susceptible to being mooted by settlement, or in any way (except nominally) a more piecemeal enterprise. ‘In short, no interest pertinent to § 1291 is served by according different treatment to attorney’s fees deemed part of the merits recovery; and a significant interest is disserved. The time of appealability, having jurisdictional consequences, should above all be clear. We are not inclined to adopt a disposition that requires the merits or nonmerits status of each attorney’s fee provision to be clearly established before the time to appeal can be clearly known. Courts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.”

Id.

This rationale is sound, and we apply it here.

The notice of appeal, however, is timely to bring before us the denial of the thirty day (Md.Rule 2-535) motion. But the circuit court did not abuse its discretion by refusing to revise its judgment denying Mrs. Blake’s claim to a share of the remainder of the personal injury settlement proceeds. Falcinelli, 339 Md. at 430-31,- 663 A.2d at 1264.

APPEAL FROM JUDGMENT OF AUGUST 9, 1993 DISMISSED. ' APPEAL FROM THE DENIAL OF THE MOTION TO REVISE AFFIRMED. COSTS TO BE PAID BY THE APPELLANT, LUVENILDE MARGOTT BLAKE.

Concurring opinion by CHASANOW, J. in which BELL, J. joins.

1 . Family Law Article § 11-110 provides:

"(a) Definitions.—(1) In this section the following words have the meanings indicated.

(2) 'Proceeding' includes a proceeding for:

(i) alimony;

(ii) alimony pendente lite;

(iii) modification of an award of alimony; and

(iv) enforcement of an award of alimony.

(3) ‘Reasonable and necessary expense' includes:

(i) suit money;

(ii) counsel fees; and

(iii) costs.

(b) Authority of court.—At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.

(c) Required considerations.—Before ordering the payment, the court shall consider:

(1) the financial resources and financial needs of both parties; and

(2) whether there was substantial justification for prosecuting or defending the proceeding.

(d) Absence of substantial justification.—Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.

(e) Expenses paid previously.—The court may award reimbursement for any reasonable and necessary expense that has previously been paid.

(f) Counsel fees.—As to any amount awarded for counsel fees, the court may:

(1) order that the amount awarded be paid directly to the lawyer; and

(2) enter judgment in favor of the lawyer.”

Section 12-103 provides:

"(a) In general.—The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:

(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; or

(2) files any form of proceeding:

(i) to recover arrearages of child support;

(ii) to enforces decree of child support; or

(iii) to enforce a decree of custody or visitation.

(b) Required considerations.—Before a court may award costs and counsel fees under this section, the court shall consider:

(1) the financial status of each party;

(2) the needs of each party; and

(3) whether there was substantial justification for bringing, maintaining, or delending the proceeding.

(c) Absence of substantial justification.—Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.”